The Berkeley Rent Board Mailbag


Q: I recently moved into a two-bedroom apartment. I received the owner's permission to move in, but I pay rent to my roommate, who has lived here for four years. She originally signed the lease with someone who moved out after a year, so she has had the place to herself for a few years now. She acts like she owns the place, and she uses the living room as her office, so I can't really use it and am confined to the kitchen or my bedroom. She further threatens that since I'm not on the lease she has the right to kick me out if I don't do as she asks. What are my rights?

It doesn't much matter that your name is not on the lease. You are protected by the Rent Ordinance in that you can be evicted only for one of the good causes listed in the ordinance. You are a subtenant and your roommate is your 'landlord,' but you have the same right to occupy the apartment as she does.

Your roommate's ability to exclude you from the living room is governed by your original agreement with her. If you agreed to share the living room, or reasonably assumed this was the case, then you have a right to use that space. (This is a good reason to put a subtenancy agreement in writing.) But if it was clear when you moved in that the living room was her space, then you probably can't insist on being able to use it.

In any case, your rent cannot exceed an amount proportional to the space you occupy. If your roommate pays the owner $1,100 for the entire apartment and you occupy half of it - say, you each have exclusive use of a similarly-sized bedroom and share the rest of the space - your rent should not exceed $550. If your roommate has exclusive use of the living room, then your rent should be less than $550, reflecting her greater share of the unit. You should try to negotiate a lower rent if you think you're paying more than your fair share. If you cannot work out your differences, you may file a petition with the Rent Board. If it is determined that your roommate either reduced the space originally available to you, or is charging more than your proportionate share of rent, your rent will be reduced.

Q: I have a tenant who has been subletting for about 4 years now. I still receive a check from her every month, but she hasn't lived there for some time and I do not believe she plans to reoccupy the unit. Do I have to accept the subtenant as my new tenant? Can I raise her rent? 

If the original tenant no longer permanently resides in the unit, California law (Costa-Hawkins) allows you to raise the rent on any remaining subtenants (Civil Code section 1954.53(d)(2)). The original tenant has not relinquished her right to return to the unit, however, so you should serve a notice of rent increase on the original tenant, with a copy to the subtenant. You should then file a Vacancy Registration (VR) form informing the Board of the new initial rent. Be aware that the original tenant has the right to challenge your assertion that the unit is no longer her principal residence through a formal process at the Rent Board.

While you don't have to accept the subtenant as your new tenant, she has the right to occupy the unit, which means that if she does not vacate the unit voluntarily she can be evicted only for good cause. If, as frequently happens, the original tenant relinquishes the unit, you have to decide how to deal with the occupant. As a practical matter, the former subtenant will become your tenant unless you have a substantial reason to dispute that. A landlord who feels a need to terminate the subtenant too should seek legal advice early in the process.

Q: I signed a sublease agreement for an apartment for 6 months, but I may want to stay longer than that. Will I be able to? 

Tenancies do not automatically terminate in Berkeley, even at the expiration of a lease period. At the end of a lease or sublease period, the lessor may offer the tenant or subtenant another lease; if not, the tenancy continues on a month-to-month basis at the rent established in the initial agreement. It can only be terminated for one of the 12 good causes specified in the Rent Ordinance. One cause is if a lessor wishes to move back into the unit, as agreed upon in the rental agreement. If your sublease says nothing about the lessor moving back in, then you do not have to move out at the end of the agreement.

Q:  My lease says that I have to get my landlord's written consent to sublet my unit "in whole or in part."  Does this mean my landlord could prevent me from replacing a roommate if I ever need to?  Does it make a difference that I was given permission to sublet the entire unit twice in the past?

Since your lease does not prohibit subletting, your landlord cannot reasonably withhold permission to sublet.  For example, permission may be withheld if a proposed roommate has a bad credit history, but not simply because a landlord does not like a proposed roommate.  Furthermore, should your landlord refuse to allow you to replace your current roommate, you may have grounds to file a petition with the Rent Board for a rent reduction because a policy of the landlord will have caused a reduction in the occupancy level of the unit.  The amount of the rent reduction would be equal to the percentage the current occupancy level falls below the unit's established base occupancy level.  If the base occupancy level is two and the landlord does not allow you to replace a roommate, you would be entitled to a 50% rent reduction.

Q: How long may a tenant sublet a unit? I will be leaving for a full year and am wondering if I can sublet for that long. If I can sublet, are there certain conditions I need to fulfill?

The first thing to do is to check your lease to see if it permits subletting. If it does, there is no limit on the length of time your are allowed to sublet. There must be, however, an intent to return to the apartment. If it is perceived that you no longer permanently reside in the apartment because, for example, you have removed all of your personal belongings, you are no longer registered to vote in Berkeley, or you have changed your car registration, a vacancy will be deemed to have occurred and the landlord will be entitled to raise the rent to market level.

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