The Berkeley Rent Board Mailbag

Separate Agreements

Q: I have been subletting a furnished apartment for a year, and I am thinking of re-signing the lease to stay on for another year. I actually signed three agreements when I moved in: one for the apartment, one for the furniture, and one for the parking space. Can the person I'm subletting from raise the rent on all three if I agree to another year?

First, the sublessor can charge you no more than the legal rent ceiling that the owner would be eligible to charge the sublessor for occupancy of the rental unit. As for the furniture and parking, if those items are rented to you under a lawful separate agreement, the sublessor may attempt to charge you more, but you are not obligated to continue renting the services. In fact, either party can cancel a separate agreement by serving the other party with a 30-day written notice of cancellation. If furnishings and parking are regulated housing services for your unit, then the sublessor may not charge you a separate fee for them at all.

It is currently permissible for housing services, like furniture and parking, to be rented separately if they were not included in the base or initial rent. (The base rent for most units is the rent charged in 1980.) Regulation 1012 provides that such a separate agreement for unregulated housing services should be in a separate document from the lease or rental agreement, and (1) must not be a condition of tenancy; (2) must have commercially reasonable terms; and (3) their termination cannot be used as a ground for eviction.

Assuming that the furniture belongs to your sublessor, it was probably not a base year housing service. Similarly, if there are fewer parking spaces than apartments in the building, parking may not have been included in the unit's base year rent. However, if the sublessor first rented the unit after January 1, 1999, then the housing services initially provided to the sublessor are the regulated housing services for your unit, regardless of what housing services were provided in the base year. If you have questions concerning the housing services provided with your unit, you should check the records at the Rent Board office.

Q:  Can I charge an extra deposit for pets?

State law limits the amount that a landlord can charge as a security deposit to an amount no greater than the equivalent of two months rent for an unfurnished unit and three months rent for a furnished one.  A landlord may not charge above these amounts even if the tenant has a pet.

Q:  Four of us will begin renting an apartment in Berkeley in a few weeks.  Our landlord has informed us that, because of liability and insurance, we will not have access to the large deck at the back of our unit unless we pay an additional $800 per month.  Can he charge us extra to use the deck?

For most tenancies that commenced after January 1, 1999, the landlord can determine the number of tenants allowed, and the services included in the rent without limitation.  Once you move in, the rent and amenities are controlled for the duration of the tenancy.  Your landlord may be concerned about liability issues and insurance costs, but those factors are not relevant to his/her right to limit the services included in the rent for a new tenancy.

Q: I recently cleared out a large room which I had used for storage in the building I own. If I choose to rent this space to a tenant in the building under a separate agreement, do I need to file an Amended Registration Statement to document the rent to be paid for this housing service?

You do not need to file anything with us when you enter into a separate agreement with a tenant. Separate agreements between owners and tenants are permissible when the agreement is in writing in a document separate from the rental agreement. In addition, the agreement must meet all of the following criteria: (1) the agreement must not be a condition of tenancy; (2) the terms of the agreement must be commercially reasonable, that is reasonably consistent with amounts generally charged by others for the same or similar service; and (3) the tenant's termination or breach of the separate agreement may not be grounds for eviction. Separate agreements may be terminated by either party upon thirty (30) days written notice.

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