The Berkeley Rent Board Mailbag

Subletting


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? (September 2004)

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?  (August 2004)

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: Recently I found that my tenant had moved his girlfriend in with him. While I don't object to this, I wonder if she has automatically become a tenant or if I have any right to demand credit information from her or if I can charge more rent?  (August 2004)

As long as you do not accept checks directly from her or put her on the lease, she is considered a subtenant. A subtenant has no contractual agreement with the landlord; his or her rights and responsibilities derive from and are owed to the tenant. Nonetheless, you could demand credit information from her if your lease requires your approval for a sublet. Otherwise, you could demand credit information from her only if she became a tenant. If she became a tenant and her name were added to the lease, both she and her boyfriend would be responsible for the rent. She would then be considered an "original tenant," however, and you would not be entitled to implement a vacancy increase until both she and her boyfriend moved out.

A landlord may petition the Rent Board for a 10% rent ceiling increase for each additional occupant above the base occupancy level. For a tenancy that began on or after 1/1/99, the base occupancy level is the number of occupants allowed by the rental agreement at the beginning of the tenancy. For a tenancy that began before 1/1/99, the base occupancy level is the number of tenants allowed by the rental agreement or actually living in the unit between June 1, 1979 and May 31, 1980. Absent contrary evidence, the base occupancy level for a tenancy that began before 1/1/99 is presumed to be not less than one person per bedroom. So, if an additional occupant results in an occupancy level greater than the base occupancy level, you would be entitled to a 10% rent increase if you filed a Rent Board petition.

Please note that no rent ceiling increase will be granted for an additional occupant who is a spouse, registered domestic partner, parent or child of the original tenant unless the original tenant agrees in writing to the increase. Also, any increase that is granted may remain in effect only as long as there is an additional occupant in the unit. If the additional occupant were to vacate the unit, the rent ceiling would decrease accordingly.


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?  (June 2004)

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: I am subletting a room in a 2-bedroom apartment from my roommate who holds the lease. I just checked the rent ceiling for my apartment on your website and it says the ceiling is $1040. I am paying $700 for my room, which is not as big as my roommate's, and I want to know if it's legal for her to charge me more than half the rent for less than half the space. (September 2003)

No, you should not be paying more than a proportional share of the rent. Rent Board Regulation 1003(C) provides that a subtenant may not be charged more than an amount substantially proportional to the space s/he occupies, adjusted for amenities. This means that if the lawful rent paid is $1040, and you occupy half the space, all other things being equal, you would pay half the rent. If your room had a nicer view or a bigger closet or some other "amenity," that would also be a consideration, as would any obligations that are borne only by the master tenant, e.g., cutting the grass, sweeping the hall, etc. You should confirm with your roommate or the owner the amount of rent the owner is charging. If your roommate is paying $1040, then your roommate is probably overcharging you. If your roommate is paying $1400, the information in the Board's rent ceiling database may be incorrect or the landlord might be overcharging both of you. If you determine that you are being overcharged, and you cannot resolve the matter informally, you can file a petition with our office to get your rent reduced and get a refund of excess rent paid.


Q: I rented a unit to 3 tenants, all of whom are named on the lease. One of them told me that he plans to move out and has found a replacement. Should I put the replacement roommate on the lease, make out a new lease, or treat the new person as a sublessee of the original tenants? (August 2003)

While any of those is a viable option, you should be advised that there are different legal consequences to each course. Once your three original tenants vacate the apartment, the Costa-Hawkins law will allow you to set a new market-rate initial rent on any "lawful sublessees or assignees" who remain in the unit. According to the decision in Cobb v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2002) 98 Cal.App.4th 345, if the replacement roommate has a direct landlord-tenant relationship with the owner, s/he will be considered an original tenant, not a sublessee or assignee. Having the replacement roommate sign either the original or a new lease will create a direct landlord-tenant relationship. This means that the two remaining original tenants and the replacement roommate will have to move before you can set a new initial rent.

However, if you do not name the newest tenant on the lease but treat him/her and any other replacement as a sublessee of the original tenants, you can re-set the rent after the two remaining original tenants move. In this case, the sublessee will not have a direct relationship with you but will be responsible to the master tenants to perform the lease obligations. You should also be advised not to accept rent directly from a replacement roommate, but to have the remaining original tenants pay the entire rent and collect the sublessee's portion. If you accept rent from the sublessee, s/he could argue that s/he has a direct relationship with you and, therefore, should be treated as an original tenant.


Q: I am a tenant and am wondering if subletting is legal in Berkeley? (June 2003)

That depends on what your lease says. If your lease says nothing about subletting, then you may sublet. If your lease absolutely prohibits subletting, then you may not sublet. (However, this prohibition cannot be used to deny you permission to replace a roommate.) If your lease permits subletting with the landlord's consent, then the landlord must allow you to sublet unless he or she has a reasonable objection to the proposed subtenant. The proposed tenant's financial responsibility or prior rental history are examples of reasonable grounds to withhold consent to sublet.


Q: I am a tenant who is subletting one of the bedrooms in my apartment. My sublessor recently told me I had to pay interest on his security deposit. Is that true? (June 2003)

Yes. You are a master tenant, and have many of the responsibilities of a landlord. These include paying interest on the deposit every December and requiring that you have good cause to evict him. If you have not paid last year's interest, the subtenant may deduct it from the rent at the rate of 10% per year after giving you 15 days' prior written notice of his intent to do so.


Q: I am a master tenant paying $1330 for a 2-bedroom apartment, and my subtenant pays me $665. She recently filed a petition for illegally high rent, claiming that I am charging her more than her fair share, because according to your records, the rent ceiling is $1210. My rent was $1300 when I moved in two years ago. If our landlord is overcharging us, am I liable to my subtenant for her share of the amount the landlord is overcharging? (August 2002)

If the rent ceiling is $1210 and the landlord is receiving $1330, the landlord is ultimately liable for overcharges. Assuming that your subtenant has use of half the apartment, she should be paying no more than $605, and either you or the landlord can be held liable for the $60 per month overcharges. In this situation, you and your subtenant should contact the landlord directly to see if you can resolve the matter. If you can't, you should ask the Rent Board to expand the subtenant's petition to include your own claim against the landlord.

However, if your moving in established a new tenancy and the previous tenant was not evicted pursuant to a 30-day notice, then $1300 is likely a lawful rent. If this is the case, our records show a rent ceiling of $1210 probably because the landlord never reported the new tenancy to us. While his failure to do this doesn't affect the initial rent he could charge you, it does make him ineligible for rent increases, because he has not re-registered the unit. So, he has overcharged you $30 a month since he raised the rent, and you have likewise overcharged your subtenant $15 per month. Again, if you can't work things out informally with your landlord, add to the subtenant's petition by making your own claim against the landlord.


Q: My friend and I moved into a 3-bedroom house with a guy who has been living there for about 5 years. He told us he pays the landlord $1500 a month for the house, and he's charging us $700 apiece. That means his rent is only $100. He says he's entitled to it because he was the original renter so he's the reason the rent is so low, and because he's the one responsible for the rent and for finding roommates. Is it legal for him to charge us so much more than he is paying?

No. Under Rent Board Regulation 1003, where a master tenant (one who rents the entire unit from the landlord and is solely responsible for rent) sublets portions of the unit to others, the subtenant's rent ceiling is presumed to be proportional to the space occupied by the subtenant. So, in your case, if the rent is $1500 and the 3 bedrooms are about equal in size, your rent ceiling is presumed to be $500. The presumption can be changed if the rooms vary in amenities; for instance, if one bedroom has a private bath and the others don't, the rent ceiling could be higher for that room.

If your master tenant does not agree to return the money you and your friend appear to have been overpaying and to reduce your rent to $500, or if you disagree as to the value of the relative amenities of the rooms, you may file a petition with the Rent Board against him for illegally high rent.


Q: I am a landlord and I have given a tenant special permission to sublet his unit this summer. I am concerned because the rent ceiling for this unfurnished, one-bedroom unit is $900, but the tenant plans to charge $1,300 a month. He says he can charge that much because he's renting it as a "furnished" unit. I've seen his furnishings, and they are very modest and only include a couch, coffee table, twin bed, dining table and four chairs. Can he really charge that much?

No. The same rules that apply to you will apply to your tenant when he sublets. He may not lawfully charge a sub-tenant more than the lawful rent ceiling for the unit. If he wants to charge extra for furnishings, he must enter into a valid separate agreement with the sub-tenant. A valid separate agreement must satisfy the requirements of Regulation 1012, most notably that any separate charge must be commercially reasonable. For the furnishings you describe, $400 is not commercially reasonable. In addition, either party may terminate a separate agreement on thirty-days written notice. This means that the sub-tenant may later return the furnishings and pay no more than the rent ceiling, following sufficient notice to the tenant.


Q: My friend wants to sublet her apartment to me for a year while she goes to Japan for an exchange program. What if I want to leave before she returns?

Assuming your friend's rental agreement permits subletting, the two of you should discuss, in advance, as many obligations and potential problems as you can, such as the one you describe. If you sublet on a month-to-month basis and you decide to vacate, you may vacate upon a thirty-day written notice. However, if you sublet for a fixed-term and decide to leave early, depending on the terms of your agreement, you may be responsible for the rent even after you have vacated. You and your friend should also consider who would be responsible for paying the rent or finding a replacement tenant should you need to vacate early. If you do decide to sublet the unit, you should put the terms of your agreement in writing to help avoid future problems.


Q: I am renting a three-bedroom apartment for $2,000 a month. My rental agreement gives me the right to sublet. How much may I lawfully charge for the other rooms? I want to rent the master bedroom for $1000 and the second bedroom for $500, which would leave $500 as my share for the third bedroom.

You have described a sublessor/sublessee relationship with you as the sublessor and your future roommates as the sublessees. As the sublessor, under Rent Board Regulation 1003(C), you are required to charge an amount that is substantially proportional to the space rented to a sublessee. You may, however, adjust the amount to reflect each rooms' relative amenities, e.g., private bathroom, balcony or bay view.

In the situation you describe, assuming that the $2,000 is a lawful rent and that you share common areas and amenities equally, your bedroom should represent 25% of the combined space of the three bedrooms. If not, you need to adjust the rent levels more equitably. If you charge disproportionately high rents to the sublessees, they may file petitions with the Rent Stabilization Board to recover rent overcharges from you.


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:  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.


Have a question?  E-mail us at rent@ci.berkeley.ca.us