The Berkeley Rent Board Mailbag
Q: I am a tenant and my landlord has locked me out of my apartment. What should I do? (May 2004)
It is not legal for a landlord to lock a tenant out of an apartment. A landlord who wishes to evict a tenant must have one of the just causes listed in the Rent Ordinance and take the proper steps. These steps would involve serving a notice giving you an opportunity to correct the 'cause' or quit and, if necessary, filing an unlawful detainer action in court. You should contact the police and request that they escort you and facilitate your lawful re-entry. You might also want to contact an attorney about seeking recompense for your illegal exclusion from your unit.
Q: My landlord wants to remodel the bathroom in my apartment. I like it the way it is and don't want to have to deal with the intrusion, mess, and inconvenience of a remodel. Do I have to allow him to do this? (April 2004)
If the work he wants to do is required by code or is otherwise necessary, then you have to allow him to do the work. If the work is not required to bring the unit up to code or keep it up to code, you do not need to allow the remodel. You must allow the landlord to enter to make necessary repairs and to assess the need for repairs. See California Civil Code section 1954 for details about a landlord's right to enter a rented unit.
Q: My tenant seems to be operating a child care business from the apartment she rents from me. I rented to a woman with one child, but she seems to have 5 or 6 children there every day. Is it legal for her to be operating a business from this residential rental? I'm concerned about excessive wear and tear that 6 children will cause as opposed to one, as well as my liability if one of them gets hurt. (July 2003)
In CA, family child care is considered a residential, not a business, use of a property [CA Health and Safety Code §1597.45]. CA law allows a licensed small family care provider to care for up to 6 children and a large family care provider to care for up to 12. The tenant is required to give you notice, generally 30 days in advance of the intended operation, but does not need your permission. Furthermore, a landlord cannot evict a tenant for operating a licensed child care program.
However, CA Health and Safety Code section 1597.40 (d)(4) allows a landlord to increase the security deposit on a unit being used for a child care program to the maximum allowed under state law, which is twice the monthly rent for an unfurnished apartment. If you are concerned about liability, CA Health and Safety Code section 1597.531 requires each licensed provider to obtain liability insurance or a bond, or to obtain an affidavit from each parent stating that he/she has been informed that the property owner's insurance may not cover losses in connection with the day care operation, unless those losses are caused by, or result from, an action or omission by the owner. If the day care provider has insurance, you may request, in writing, to be added as an additional, named insured on the policy, as long as it does not result in cancellation of the policy and you pay any additional premium.
For more information on the operation of family day care, you may contact the Child Care Law Center at (415) 394-7144.
Q: For the past couple of months my landlord has been renovating the unit behind mine, which has caused a considerable disruption in my ability to enjoy my apartment. There are workers walking past my living room and bedroom windows every day, many times a day. I haven't been able to use my patio because it's not a peaceful place with the construction activity occurring from early in the morning, all day and into the evenings, and even on holidays, when I had hoped to be able to entertain. Am I entitled to a rent reduction? Can I break my lease? (July 2003)
You are entitled to a rent reduction for the time that your use of your apartment and yard has been diminished. We recommend that you first try to reach an agreement with your landlord to limit construction days and hours to something you both can live with, and request a rent reduction for the inconvenience. If you cannot reach an agreement, then you may file a petition with our office. If you find you still cannot live with the disruption and are considering breaking your lease, you may wish to consult an attorney to discuss whether your landlord has violated your right to quiet enjoyment of your unit sufficient to warrant breaking the lease.
Q: My tenant just gave me a 30-day notice terminating her tenancy. I understand that there's a new state law that says I have to do a walk through inspection with her before she moves out. Can you tell me more? (March 2003)
The new law, amending CA Civil Code section 1950.5, states that you have to notify the tenant of her right to a walk through inspection, and if she desires one, the two of you need to try to set a convenient date and time that is not less than two weeks before the end of the tenancy. The purpose of this law is to allow landlords to identify the problems that they may hold tenants liable for prior to the tenants' moving out, so that tenants have enough time to fix the problems and avoid unexpected deductions from their security deposits.
Q: I heard new state laws affecting tenants and landlords take effect this year. Can you tell me about them? (January 2003)
Several new laws went into effect January 1, 2003. Those with the broadest impact concern security deposits, eviction notice periods, and notice for landlord entry.
Security Deposits The statute governing security deposits (Civil Code section 1950.5) has been amended to establish a procedure for informing departing tenants what they must do to avoid deductions from their security deposit. The law requires a landlord, at the tenant's request, to do a walk-through inspection of the unit no earlier than two weeks before the tenancy is to end. Based on the inspection, the landlord must prepare an itemized list of repairs or cleaning that the tenant must undertake before the end of the tenancy for the full deposit to be returned. These items are limited to deductions that allowed by the statute, for instance, damages beyond ordinary wear and tear. One of the allowable purposes for withholding from the security deposit is "cleaning the premises upon termination of the tenancy." The amended law elaborates on this standard for tenancies beginning on or after January 1, 2003: a deposit may be used for cleaning of the premises "necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy." Thus, it is now even more important for landlords and for tenants to document the level of cleanliness at the start of the tenancy. The new law also increases the amount of damages that may be awarded to tenants for a landlord's bad-faith claim or retention of the all or part of the deposit, from $600 to twice the deposit amount.
60-Day Notice Required for Some Evictions Most evictions that formerly required a 30-day notice now require a 60-day notice. Only 30 days' notice is required if: 1) the tenant has resided in the unit for less than a year; or 2) the unit is a single family home or condo, the owner is selling to a buyer who intends to reside in the unit for at least one year, and owner opened escrow no more than 120 days before the notice is given. (These are amendments to Civil Code section 1946.1.)
Notice of Entry Landlords must now give written notice of entry, except in an emergency. The law governing landlord entry, Civil Code section 1954, retains the requirement that notice must be "reasonable," and that 24 hours' notice is presumed reasonable. The new law adds that 24 hours' notice is reasonable if it is personally delivered or left on the front door. If notice of entry is mailed, it is presumed reasonable only if mailed at least six days before the intended entry. If the purpose of entry is to show the unit to a prospective buyer, notice may be oral if the landlord has, within 120 days, given the tenant written notice that the property is for sale and that the tenant might be given oral notice of entry to show the unit. Twenty-four hours' oral notice is presumed reasonable, and the owner or agent must leave written evidence of having entered.
Q: I responded to an advertisement for an apartment for rent, but the owner told me she rents only to students. Can she do that? (September 2002)
No. Refusing to rent to non-students is likely to be considered arbitrary discrimination that is prohibited by the state Unruh Civil Rights Act. Under the Unruh Act, a landlord cannot reject a potential tenant simply on the basis of the individual's class or group affiliation. If you think your rental housing application was rejected, or you were told you could not apply, for any reason that you think may be discriminatory, you should contact Housing Rights, Inc (548-8776; http://www.housingrights.org,) or the California Department of Fair Employment and Housing in Oakland (622-2945; http://www.dfeh.ca.gov).
Q: I recently had to move out of town rather quickly for a job transfer, so I wasn't able to give my landlord the 30 days' notice required under my month-to-month rental agreement. Instead, on June 1, I notified him that I would be out of the apartment on June 10, and asked him to apply part of my security deposit to the 10 days of June rent. My landlord withheld a month's rent from my security deposit, even though he rented it again two days after I moved out. Is he allowed to do that? How can I get my money back? (August 2002)
California law entitles the landlord to withhold from your security deposit no more than the amount necessary to compensate him for his losses. He was entitled to withhold a month's rent only if he was unable to rent your apartment within a month of your notice. Since he re-rented your unit on June 13, he can charge you rent just for the first 12 days in June. You should write the landlord a letter requesting the return of 18 days of rent, and give him a deadline to respond, say, two weeks. If he does not refund the money, you can seek recourse by filing a petition with the Rent Board for an unrefunded security deposit or by filing in small claims court.
Q: My tenant moved out and left a bunch of things in the apartment and in the yard. Some of it is obviously garbage, but he also left behind things of some value, like furniture and electronic equipment. Can I assume he doesn't want it and throw it out? Can I charge him for storage costs by deducting it from his security deposit? (July 2002)
Your responsibility under California law is to act reasonably to ascertain whether or not the tenant would like his possessions back or whether the property has been abandoned. In any case, you should safely store the property where it cannot be damaged or stolen because you could be liable for losses caused by your negligence. You must give the former tenant an opportunity to reclaim his possessions by written notice to him that sets a deadline (at least 15 days after the notice is personally delivered, or 18 days if mailed) after which he can no longer claim the property. You may demand storage costs incurred as a condition of returning the property, if you include your intent to charge these costs in the notice. (You could instead deduct the charges from his security deposit, but an accounting of deductions and return of any remaining deposit must, under state law, be made within three weeks after the tenant vacates.)
Specific steps to follow regarding property left behind, including the wording of the notice, how to determine whom the owner is when there is more than one tenant, and separate rules for tenants who have been evicted, are outlined in the California Department of Consumer Affairs legal guide, "Options for a Landlord: When a Tenant's Personal Property Has Been Left in the Rental Unit." You can access this guide from the Rent Board website under "Other Sources."
Q: I am a landlord and prefer not to rent to families with small children. It's not that I don't like children; it's just that I feel the complex I own is not an appropriate environment for toddlers. The stairs and yard are concrete, and a kid could easily get hurt by slipping through the railings or the steps, and I'd be liable. Also, the walls are rather thin, and if I lose tenants because they are disturbed by crying children in the middle of the night, I lose money. Am I within my rights to tell people I won't rent to families with small children? (June 2002)
No. You cannot discriminate against families with children in deciding whom to rent to. While other environments may better suit young children, as long as your property meets code requirements, it is presumed safe for all residents. If you have concerns about particular areas, such as the railing or steps, you may wish to take extra precautions to increase their safety.
Q: Our landlady lives nearby and constantly stops by unannounced. She seems well meaning, but we really don't want anyone coming over without calling first. What can we do?
I'm not sure what you mean by "stops by." If she enters your apartment without permission or without cause, then she is violating the law. California law states that a landlord can enter a rental unit only for the following reasons:
In an emergency;
When the tenant has moved out or abandoned the unit;
To make necessary or agreed-upon repairs, decorations, alterations, or other improvements;
To show the rental unit to prospective tenants, buyers, or lenders, or to provide entry to repair persons who are to perform work on the unit; or
Under a court order.
Except in cases of emergency or abandonment, a landlord must give a tenant reasonable advance notice before entering, which is presumed to be 24 hours notice, and can enter only during normal business hours (generally, 8:00 a.m. to 5:00 p.m. on weekdays). You have the right to refuse entry if it is not for one of the specified reasons, and if notice is required but not given.
If your landlady just comes to the property or your doorstep without entering your apartment and you find this intrusive, you should ask her to stop. Ask your landlady politely to call before she comes by, and tell her you may not always have time for her. If the unwanted behavior continues, put your request in writing. If this doesn't take care of the problem, a lawyer can tell you if her actions rise to the level of harassment or breach of the covenant of quiet enjoyment (the right to enjoy your home free from interference by the landlord) implied in every lease.
Q: I've been living in my apartment for 4 years and the landlord has raised the rent only once during that time. Now he wants to raise it by $40. Can he do that?
A landlord can raise the rent to the lawful rent ceiling at any time, unless you have a lease that fixes the rental amount for the term of the lease. He must give you at least 30 days' written notice of the increase. If the increase is more than 10% of the rent, say, $40 on a rent of $375, he has to give you at least 60 days' notice (California Civil Code section 827(b)(3)).
Rent increases are no longer regulated for single-family homes (defined as one dwelling unit on a property) that have new tenancies beginning on or after January 1, 1996. In such cases, a landlord may increase the rent by an unlimited amount as often as he wishes, provided he is not bound by a lease, and as long as he gives the requisite 30 or 60 days' notice, depending on the amount of the increase.
Q: On September 28, I mailed my tenant a 30-Day Notice to increase the rent by 5% as of November 1. She says she didn't receive the notice until October 3 and that since she didn't get 30 days' notice, she doesn't have to pay the increase. Is this correct?
Not exactly. She does have to pay the increase, but she is entitled to 30 days' notice, so if she received it on October 3, the increase would go into effect 30 days from then: November 2.
According to state law, if a landlord uses first class mail to send a notice to increase rent, the 30 (or 60) day period is extended by 5 days (CA Civil Code, section 827(b) and Code of Civil Procedure section 1013). In addition, the date of mailing must be stated on the notice or included on a proof of service. So, if you want the rent increase to be effective the first of the month, and avoid any questions about when it goes into effect, be sure to mail the notice at least 35 days ahead of time, or personally deliver the notice 30 days in advance.
Q: My landlord filed a petition for Historically Low Rent (HLR) and was granted a 10% rent increase. Last week, he sent me the notice for the HLR increase and included notice of the 2001 Annual General Adjustment increase as well. Since this increase will be more than 10%, doesn't he have to give me more than 30 days notice?
Yes, beginning January 1, 2001, Civil Code Section 827(b)(3) requires landlords to serve tenants with a 60-day, written notice of any rent increase that is more than 10% of the lowest rental amount charged to the tenant during the previous 12-month period. This is the rule whether the increase is granted for a single item, or results from combining lawful increases. Landlords may still serve a 30-day notice for lawful increases of up to 10%.
Q: After I moved into my apartment, I discovered that there was no telephone line installed. I asked the landlord about it, and he kept saying he'd take care of it but he never did. I finally called the phone company and had a line installed. I think the landlord should pay the $120.00 expense. Am I right?
Yes, under California Civil Code Section 1941.4, your landlord is responsible for installing "at least one suitable telephone jack" and for maintaining the wiring thereof in good working order.
Q: My landlord wants to "inspect" my unit, supposedly to check for damages before I renew my lease. How often is a landlord legally allowed to conduct such an inspection?
California Civil Code section 1954 dictates five circumstances under which entry into an occupied unit is allowed: (a) to deal with an emergency; (b) to make needed repairs; (c) to show the unit to prospective new tenants or buyers; (d) anytime that the tenant has given his or her permission; and (e) following a court order. Nothing in the law provides the landlord the right to periodically inspect your unit for damages. (Special rules apply, however, if you have a waterbed.) If your landlord is concerned about the condition of your unit, he or she may simply ask you about the unit, or send you a form to report any problems.
Q: My landlords are selling the property I live in. Do they have the right to photograph and videotape the inside of my home in order to market the house in print and on the Internet?
California Civil Code section 1954 provides your landlord the right to show your unit to prospective purchasers as long as you are given reasonable notice of the landlord's intent. "Reasonable notice" before entry is usually understood to be a written notice delivered to the tenant at least 24 hours in advance, and the inspection should be conducted during "normal business hours," customarily Monday through Friday between 9:00 a.m. and 5:00 p.m. Although your landlord has the right to show your unit, you have a right to privacy and the law does not specifically give the landlord the right to photograph or videotape inside your unit.
Q: Recently, my partner asked our property manager if she could get a companion dog under the Americans with Disabilities Act. His lawyer responded by asking us to state what if any local, state or federal laws would allow us to have a companion dog. Are there laws in the City of Berkeley that allow a disabled person to have a companion and helping dog?
Assuming your partner is disabled, allowing her to have a guide, signal or service dog is an accommodation required by the Unruh Act (California Civil Code section 54.1). The law states, in part, "shall be deemed a denial of equal access to housing accommodation ... to refuse to permit ... a physically handicapped person to keep a service dog on the premises." Such an accommodation is also required under the California Fair Employment and Housing Act and the Federal Fair Housing Act.
Q: I read that a landlord has to give 24 hours notice to a tenant in order to enter an apartment, and that they can only enter during business hours. I am not at home during business hours and I have informed my landlord that I do not want anyone in my apartment when I am not present. I am willing to consent to any other time, but my landlord said she will enter my apartment anytime she wants after giving 24 hours notice. Is this legal?
If your landlord has a good reason to enter your apartment, it would be best to arrange a time that is mutually agreeable. Your landlord has the right to enter your apartment only in case of emergency; to make necessary or agreed repairs or to show the unit to prospective purchasers, mortgagees, tenants workers or contractor; or pursuant to court order. Absent an emergency, a landlord is required to give reasonable (24 hours is presumed reasonable) notice and has the right to enter during normal business hours. A tenant may, however, allow a landlord to enter during non-business hours. A landlord may not abuse the right of access or use it to harass the tenant. On the other hand, refusing the landlord access to the unit as required by law, after receiving written notice to cease, may constitute good cause for eviction under the Rent Ordinance.
Q: What are the laws that govern notice of intent to move out of a unit? Two years ago, I signed a one-year lease. Since then, the landlord said our agreement was month-to-month. I gave him 30-days notice on the 15th of the month that I would vacate the unit on the 15th of the next month. My landlord says that I have to move out at the end of the month because that’s when he collects rent. He says that I’ll have to pay rent until the end of the month, even if I move out on the 15th. Is this right?
No. As your landlord said, your tenancy became a month-to-month tenancy when your lease expired. Under a month-to-month tenancy, you may give a 30-day notice at any time during the month, and your tenancy terminates 30 days from the date of your notice, no matter what day of the month that is. You are under no legal obligation to continue paying rent beyond the 30-day period.
Q: My roommate moved out and I have found a new person to take his place. The owner requested information to run a credit check on my new roommate. In addition, she requested a credit check on me, despite the fact that she already had one done when I first moved in. Does she have a right to require another credit check of me?
If the owner ran a credit check on you at the commencement of your tenancy, she should have all of the information she needs to run additional credit checks whenever she wants. There is no apparent reason for her to run such a check, though. While an unfavorable credit report may be grounds for an owner to refuse to rent to a potential tenant, it is not good cause for evicting a sitting tenant or for otherwise changing the terms of the lease or rental agreement in effect. Furthermore, she cannot require you to pay for any additional reports.
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