The Berkeley Rent Board Mailbag

Tenant Rights & Responsibilities


Q:  I'm a tenant in a building that is being converted to condominiums. Since I cannot afford to buy my unit, will I need to vacate once the conversion has been completed? Is it true that condominiums are exempt from rent control? (May 2006)

A conversion to condominium has a number of implications for both owners and tenants. However, under the condo conversion ordinance amended by the City Council in October 2005, many protections exist for tenants. First, tenants may not be evicted from a unit due to a conversion to condominium. In fact, all sitting tenants are allowed to remain in the unit with a regulated rent tied to the increase in the Consumer Price Index. Furthermore, tenants may only be evicted for a "good cause"-nonpayment of rent, violation of the lease, and ongoing disturbance of other occupants are examples of good cause for eviction. For units converted to condo after October 2005, owners may not evict a sitting tenant in order to owner-occupy the unit. To address your question regarding condos being exempt from rent control: A rented condominium is exempt from rent control only if it has been rented out after being bought by a new owner after conversion. However, eviction and security deposit protections still exist even for rented condos. As noted above, for sitting tenants in units that were converted to condominium after October 2005, rents must be limited to annual increases equal to 65% of the increase in CPI.


Q: I am new to Berkeley and Rent Control. Can you tell me how it works?  (July 2004)

Most residential rental units in Berkeley are under Rent Control; there are some exceptions, so you may want to contact our office to find out about a specific unit. Basically, the way it works is that a tenant rents a unit at a price set by the landlord at the beginning of a tenancy. That rental amount becomes what is called the "rent ceiling." Each year, the Board authorizes an Annual General Adjustment to the ceiling. Any other increases to the rent ceiling must be approved by the Rent Board through a petition process. In addition to controlling rent increases, the Board is designed to insure that tenants receive stable services, habitable units, and interest on their security deposits. Tenants who have complaints about the habitability of their unit or that the landlord has removed or decreased a service for which the tenant pays, may petition the Rent Board for a reduction to the rent ceiling.


Q: My tenant withheld $200 from the rent because we are landscaping the front yard and it has disrupted her use of her rental space. We removed the sidewalk, which was in disrepair, and put in paving stones and a garden irrigation system, and this "disruption" lasted for about 2 weeks (we completed the work in 2 weekends). In a letter with her rent check, she complained about not being able to enter her unit without tracking dirt into her apartment during that time. We are upset that she never said anything to us, but took it upon herself to make a deduction. Should we accept this? We're worried that it might set a precedent.  (May 2004)

Your concern is reasonable. Your tenant should have discussed the situation with you, rather than deciding on her own to reduce her rent payment. A tenant's right to repair and deduct applies to serious conditions that affect the unit's habitability and requires that the tenant notify the landlord in advance, thus giving the landlord an opportunity to make the repairs. (Civil Code § 1942.) A tenant who is inconvenienced by a landlord's actions should always ask, first, for some type of accommodation, thus allowing the landlord an opportunity to resolve the problem. If the landlord and tenant are unable to reach a resolution, the tenant may file a petition with our office, if he or she suffered a diminishment in space or services that are included in the rent ceiling.

Your options in dealing with this situation range from meeting with her to try to reach an amicable resolution to giving her a 3-day notice to pay or quit. You would be well advised, at a minimum, to give her written notice that deductions are not authorized without prior written consent, except as allowed by law.


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 landlord is engaging in behavior that is effectively forcing me out of my apartment. He does not have just cause to evict me, but he wants me out because he believes he could fix my unit up and get another $400-$500 per month in rent. To this end, he has been working noisily around the apartment complex at all hours for over a month, and when I ask him how much longer he expects the work to continue, he says "maybe forever." In addition, he opens the noisy garage door under my bedroom late at night and early in the morning even after I have asked him to fix it or not to open it at unreasonable hours. He basically does whatever he can to annoy me and, thereby, drive me out of here. Is there any way to make him stop this harassing behavior? (April 2004)

One of the rights that comes with paying your rent is the right to the quiet enjoyment of your unit. If your landlord is in breach of this right, you have recourse. However, your landlord is responsible for the repair and maintenance of the property. Therefore, your right to quiet enjoyment will be violated only if it is established that the work you complain of exceeds that which is reasonably necessary to properly maintain the property.

You indicate that you live in an apartment complex. Therefore, you should talk with your neighbors and see if they are similarly bothered by the repair work. Corroboration of your complaints by your neighbors will strengthen any claims you might make. You should also document the date and time of the work you find disturbing. And, you should have a City Housing Inspector examine the garage door. If it is, in fact, broken, your landlord will be cited and required to fix the door within a specified time period.

If the disruptive "repair" work continues unabated, you may file a petition with the Rent Board and seek a rent reduction until the work is completed or until the landlord agrees to reasonable restraints on when and how the work will be done. If you believe that the disturbances go beyond mere repair work and are focused specifically on you for the intended purpose of driving you from the building, you should consult a private attorney and discuss the civil remedies available to you.


Q: My tenant never pays his rent on time. His lease authorizes a $20 late fee each month the rent is late. I never used to enforce the late fee, but in January I wrote him a letter stating that I would start to enforce it beginning with the February rent. Since then, his rent has been late twice, but he has not paid any of the late fees. How do I now enforce them? Can I evict him for non-payment of late fees if his rent is paid but the late fees are not? (April 2004)

Late fees must be stated in the lease and must be reasonable (probably not more than 4-6% of the monthly rent). However, they are not considered part of the rent, so you may not evict a tenant for non-payment if his rent is paid but fees are not. Your recourse is to write him a letter demanding payment of the late fees; if he does not comply, you can file suit in small claims court. Of course, whenever the rent is late, you can serve your tenant with a Three Day Notice to Pay Rent or Quit; if he doesn't pay within 3 days, you may proceed with the eviction action. You may also be able to serve him with a Notice to Perform Covenant or Quit, to recover the late fees or to evict for chronic lateness, but you should consult an attorney for more specific information about evicting the tenant.


Q: I am a Berkeley tenant with a month-to-month rental agreement. I plan to move out of my apartment in May, and I have several questions about the process. I'd like to leave on May 12th. Do I have to pay for the whole month of May? When do I need to give notice? (April 2004)

For a month-to-month lease, California Civil Code section 1946 requires you to give your landlord at least 30 days' written notice of the date that you will be moving out. So, if you plan to leave on May 12th, you must deliver the notice to your landlord in person on or before April 12th, or mail it at least 5 days before April 12th. (A letter is presumed to be received five days after it is mailed.) Assuming you honor the notice , you are only responsible for rent through May 12th


Q: My landlord is engaging in behavior that is effectively forcing me out of my apartment. He knows he does not have just cause to evict me because I always pay my rent on time and I don't disturb anyone, but he wants me out because he knows he could fix it up and get another $400-$500 per month in rent for the place. To this end, he has been working noisily around the apartment complex at all hours for over a month, and when I ask him how much longer he expects the work to continue, he says "maybe forever"; he opens the noisy garage door under my bedroom late at night and early in the morning even after I have asked him to fix it or not to open it at unreasonable hours; he basically does whatever he can to annoy me and drive me out of here. Is there any way to make him stop this harassing behavior?  (October 2003)

You are entitled to quiet enjoyment of your unit. And, if a landlord is in breach of that entitlement, you may have some recourse. The first thing to do is to contact the police to see if a restraining order would be advisable. Your landlord may be engaging in activity that could be eliminated or mitigated by such an order.

If a restraining order is not an option, or it does not prove successful, you may consider informing the landlord that if you are forced to move, then the consequences for him may be severe. If you can demonstrate that you are being "constructively evicted," that you are being forced to move by the consistent harassment of the landlord and that it is not a voluntary act on your part, then the Berkeley Rent Board has the authority to deem the impending vacancy non-qualifying for a Costa-Hawkins increase, which means that the landlord cannot set a new rent for the next tenant: the next tenant's rent will be the same ceiling that you had. If you can document to the Rent Board the behavior of the landlord prior to your moving out; the Board may notify the landlord that his behavior will likely result in a constructive eviction which will limit the next tenant's rent. This may discourage the landlord from continuing behavior that will not ultimately get him the result he desires: more rent money. Another method you could employ would be to sue the landlord for damages. You should contact an attorney to see if this is likely to prove worthwhile, but if you can show that your landlord has caused you undue suffering forcing you to move, and actual damages, say, if you had to move and your new rent were substantially higher than your previous, you may be entitled to compensation.


Q: My landlord frequently drops by without notice to maintain the garden. I appreciate the work he does, but I'd really like to know when he's coming so I know when I'll have my privacy, and when I can entertain in the garden. The other day I had some friends over for lunch and wanted to sit on the lawn and it was all wet from the sprinklers he had set up that morning. Can I ask him to inform me of when he's coming? (October 2003)

Although a landlord is not required to give notice of entry unless he is entering your unit, it is common courtesy to let you know when he'll be on the property, especially if it will impact your use of it. It is certainly reasonable to ask him to let you know in advance when he will be gardening. If he refuses, and it impairs your lawful use of the property, you may want to try to negotiate with him for a rent reduction; if the problem becomes intolerable, you may want to speak to an attorney about whether he has violated your privacy rights or caused you any compensable harm.


Q: I have a tenant who is chronically late with the rent. I recently imposed a $20 late fee on him each month he is late, but he refuses to pay it. What recourse do I have? (September 2003)

You cannot enforce a late fee provision if it was not part of the original rental agreement. However, if you suffer actual damages due to the late payment of rent, e.g., late fee on a mortgage payment, you might be able to recover your damages in Small Claims Court.


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 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: I am a landlord and my tenant gave me a 30-day notice of move-out yesterday. The notice also said she would not be paying last month's rent but that I should take it out of the deposit. I think I'm entitled to the rent and to keep the deposit for any damage repair or cleaning that may be required once she vacates. What are my rights? (June 2003)

You are entitled to the last month's rent, but if you demand it and she doesn't pay, your most practical recourse is to take it out of the deposit. If the damages and cleaning exceed the amount you have left for the deposit, you would need to take her to small claims court. Your other option would be to serve her with a Three-Day Notice to Pay Rent or Quit, but since she's moving out anyway that would likely have little practical benefit for you.


Q: I am in my 8th month of a 12-month lease, and I want to break the lease. I'm paying $1350 for a one-bedroom apartment and I have found a nicer apartment for $1100. What procedure do I follow for breaking the lease? (April 2003)

You should give your landlord 30 days' notice in writing. However, that will not relieve you of the responsibility for paying rent until either the lease term expires or the apartment is re-rented, whichever comes first. If you move out before your lease term ends, the landlord has an obligation to try to mitigate damages by finding a new tenant, but these days there are lots of rentals available, so he may not be able to re-rent the apartment right away for what you're paying. If your lease permits subletting, and you find someone to sublet, then you remain obligated for the rent to your landlord, but the subtenant will be covering some or all of your costs. Even if your lease does not permit subletting, you would be well advised to offer to find a suitable new tenant. If the landlord refuses to cooperate with you, it will be harder for her/him to establish that s/he tried to mitigate damages. If you can't find a replacement and break the lease and rent another place, it is likely that you will be obligated to pay two rents for several months. You might try negotiating with your landlord to reduce the rent, but you signed a contract to pay $1350 so s/he's under no obligation to reduce it. You might be best off waiting until the end of your lease before terminating your tenancy there.


Q: I am a tenant and think I'm being overcharged. According to the Rent Board, the rent ceiling for my apartment is $1025. I'm being charged $1055. What should I do? (April 2003)

The first thing to do is to verify that the rent ceiling is accurate for your unit. The ceiling is most likely accurate if the tenancy start date and amount you paid when you moved in are correct in the Rent Board records. If so, then you are probably being overcharged. Figure out how much you have overpaid, write a letter to your landlord telling him/her what your rent ceiling is and stating that you plan to pay only the ceiling from now on, and that you would like to deduct the amount you have overpaid from the next month's rent. Explain that if you do not hear from him/her before the rent is due, you will go ahead with your plan. If your landlord refuses to allow you to make these corrections, you may file a petition with the Rent Board for Illegally High Rent, and you will receive a determination from the Rent Board that will authorize you to make the deductions.


Q: I'm new to Berkeley and am amazed at housing and rental prices here. What's even more amazing to me is that Berkeley supposedly has rent control. How can there be rent control in Berkeley if one-bedroom apartments rent for over $1000!!!?  (April 2003)


Since the Costa-Hawkins Rental Housing Act went into full effect in California 1999, landlords have been able to establish initial rents for new tenancies at whatever price the market will bear. Although the initial rent, i.e., the rent established at the beginning of a tenancy, is no longer limited, Berkeley's Rent Control still serves four main purposes:

1) It provides stable rents. Rent increases during the tenancy are controlled, so that a tenant renting initially at $1000 will not have to worry about unwarranted or unreasonable increases for the duration of the tenancy. 
2) It ensures stable services and habitable conditions. If a tenant initially rents an apartment that has off-street parking or laundry access, s/he can expect to continue to receive these services during their tenancy. If a service is discontinued, the tenant can petition for a rent reduction. Additionally, if a unit does not meet the "warranty of habitability" outlined in California Civil Code Section 1941.1, or in the local building code, e.g., if the heater is broken or the roof leaks, a tenant can petition for a rent reduction until the unit is repaired. 
3) It protects tenants against unfair or unwarranted evictions. A tenant can be evicted (forced to move out) only for good cause. There are 12 good causes for eviction, including nonpayment of rent, violating a material term of the rental agreement after receiving a written request to stop the violation, disturbing the peace and quiet of other occupants after receiving notice to stop, etc. 
4) It requires landlords to pay interest on tenants' security deposits. Landlords are required to place the deposit (which includes last month rent if collected at the beginning of the tenancy) in an interest bearing account and pay the interest accrued every December. If the tenant does not receive the interest by January 10th of the following year, s/he can deduct it from the rent at the rate of 10%.

 


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: The roof of my apartment building leaks. During the last rainstorm, water leaked through the bedroom ceiling, which is now sagging. I notified the landlord, but nothing has been fixed. What are my rights? (December 2002, updated June 2013)

You have a right to a weatherproof apartment under Civil Code 1941.1 and under the local housing code, and the right to a habitable dwelling is implied in every lease. If your apartment fails to meet these requirements, you may be entitled to some compensation for the impairment the leaky ceiling has caused. Here are steps we recommend tenants take to get problems in their units fixed and to get compensation:

Notify the Landlord: Make a written request to your landlord for repairs. Telephoning is fine, and essential in an emergency, but written proof of making the request is important, especially if your landlord is not responsive. So, if you telephone your landlord about a problem, follow up with a letter. Keep copies of all your correspondence. If you don't notify the landlord of a serious problem that results in damage that was preventable with earlier notification, you risk being held responsible for some of the damage done to the apartment.

Document the Problem: If possible, take photos of or videotape the problem, or call the Rent Stabilization Board for someone to videotape it. If you file a petition with our office, you'll need to demonstrate that there was (or still is) actually a problem.

Request a Housing Inspection: For structural or weatherproofing problems that you suspect violate housing or building codes, call the City's Housing Enforcement Division for a housing inspection at 981-5444. If the inspector cites the landlord for a code violation, the City can charge the landlord for inspection fees if the problem does not get fixed. Also, the inspector will issue a report about all cited violations, which will serve as additional evidence of the problem.

Petition the Rent Board: File a petition at the Rent Stabilization Board seeking a rent reduction if the landlord still refuses to make repairs, or if you and the landlord can't agree on some compensation for the inconvenience you suffered. If, at a hearing, you prove the existence of the leak and can show how it affected your use of the bedroom (say, you had to move furniture and couldn't use part of the room), you're probably entitled to a rent reduction. This reduction will apply from the time the landlord had notice of the problem until it was fixed; if the repair isn't made by the time of the hearing, the rent reduction will stay in effect until the landlord proves that it has been fixed.

The Rent Board cannot, however, compensate you for any costs you might have incurred to replace personal belongings damaged by the leak. If your landlord does not agree to reimburse you for your losses, see if he or she will agree to mediate the matter. Our office offers free mediation services, and sliding-scale mediation services can also be obtained through SEEDS Community Resolution Center. Otherwise, you will have to file a suit in small claims court to recoup your costs. Click here for more information about Rent Board mediation services. For more information about SEEDS, call 548-2377 or visit http://www.seedscrc.org/. For small claims court information, call 647-4423 or visit http://www.courts.ca.gov/selfhelp-smallclaims.htm.


Q: I have a terrible mold problem in my bathroom. I leave the window open when possible, but it's not safe to do that when I'm gone (I live on the ground floor). My landlord has refused to install a fan. Is he required to? What can do to get rid of the mold permanently?  (December 2002.)

You cannot make your landlord install a fan, but you could purchase a fan yourself - it might even be something the landlord would pay for, especially if it remains with the apartment. As for cleaning, the best recommendation is to use a 10% bleach solution. It's not enough just to wipe the affected area with the solution - it has to remain in contact with the solution for 10 minutes or so, so it takes some diligence to actually kill the mold.

Mold needs water to grow. It especially likes dark and damp areas. So, to keep the mold from coming back, you have to reduce the water vapor in the bathroom - opening the window and the door, and running a fan to circulate the air are all good ideas. Bringing light to the area may also help, so open the curtains, if you have them.

You haven't mentioned your building's structure, but if there are leaks from rain or defective plumbing, the mold won't go away until the source of the water intrusion is addressed. These problems are the landlord's responsibility, so you should notify him if he's not aware of such a problem, or keep reminding him that he must make repairs.

For more information about combating mold, visit the Environmental Protection Agency website: http://www.epa.gov/mold/moldresources.html.


Q: Because landlords are required to install working smoke detectors, shouldn't they be responsible for maintaining them as well? I am a tenant, and I think I should be able to deduct the cost of replacing the batteries every year.  (December 2002.)

Since 1987, state law has required landlords to provide operable smoke detectors at the beginning of all tenancies in multiple-unit buildings. Replacing batteries of smoke detectors in your unit is not the landlord's obligation, unless that's written into your rental agreement. You, as a tenant, must assume some responsibility for basic maintenance of your rental unit, which means keeping it clean and replacing, at your own expense, minor items with a naturally short life that wear out during your tenancy, such as light bulbs and batteries. On the other hand, if your smoke detector doesn't work even with a new battery, then notify your landlord, who must then repair or replace the smoke detector. Also, property owners are responsible for replacing the batteries of smoke detectors located in common stairwells.


Q: I have questions about what I, as a landlord, am obligated to repair. One of my tenants, who has lived in her apartment for 15 years, wants me to repaint it, install new carpeting, and repair a cracked window. Am I required to do any of these things?  (September 2002.)

If the paint or carpets pose a health or safety hazard -- for instance, the paint is flaking or peeling, or the carpet is moldy or a trip hazard -- you may be in violation of housing codes or the implied warranty of habitability, and you must remedy these problems. Paint or carpets in a condition that do not threaten a tenant's health or safety may not have to be replaced.

Under Berkeley's Rent Ordinance, a tenant is entitled to stable services and conditions. If conditions in your tenant's unit have substantially deteriorated since she first rented it, she can file a petition for a rent ceiling reduction. "Substantial deterioration" means a noticeable decline in the physical quality of the rental unit resulting from a failure to perform reasonable or timely maintenance. After 15 years, the paint and carpet may have outlived their useful life, and if so, should be replaced. Depending on the actual condition of the paint and carpeting, the tenant may be granted a rent ceiling reduction for deterioration until these items are replaced.

A landlord is responsible for fixing a broken or cracked window, unless a tenant or his or her guest intentionally or carelessly broke it. So even if a vandal or a pebble kicked up from a passing truck is the culprit, the landlord must fix it. Under state law (Civil Code section 1941.1) landlords must maintain basic facilities, including windows and doors, in good repair, except for damage caused by the tenant or a guest (Civil Code section 1929). If the tenant or a guest was responsible for the crack, you may arrange and pay to have it fixed, and charge the tenant for the repair cost. 


Q: I'm a renter in an apartment building and have problems with the tenants below, who smoke on their balcony, which is right below mine. I like to use my balcony and leave my doors and windows open for ventilation, but I have asthma and their smoke is not only unpleasant, but also a health hazard. I asked them to smoke elsewhere and explained that it is presenting a real health problem for me, but they refused. I asked the landlord to prohibit smoking on the premises, and while he has agreed to forbid any new tenants from smoking on the property, he says he cannot change the rules for existing tenants who have the right to smoke. What can I do? Can I petition for a rent reduction on the grounds that I am not fully able to use my balcony or my apartment when it fills with smoke?  (June 2002)

Unfortunately, there is no easy solution for you. If smoking is not prohibited by your neighbors' lease, they have the right to smoke in their apartment and on the balcony. A petition for a rent reduction would not be appropriate because it is not the landlord's fault that you cannot fully use your apartment. A rent reduction is in order if a landlord diminishes your space or services or fails to keep the apartment habitable, but here, it is your neighbors who are affecting you, and they're not doing anything illegal. If you cannot work out a solution with your neighbors, ask your landlord to consider making the next vacant apartment available to you, if it is one that is less likely to be affected by smokers.


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: Two months ago I purchased a 4-unit apartment building. The tenants in apartment A now claim that they have been overcharged for the past year and a half. I haven't raised their rent since I bought it, but when I checked with the Rent Board, I was told their rent does exceed the lawful rent ceiling for the unit. If I simply continued collecting what the previous owner charged, without knowing it was illegally high, am I liable to the tenants for the overcharges? Am I responsible for the previous owner's overcharges?

You are liable for overcharges collected during your ownership, even if you weren't aware that the rent exceeded the ceiling. You are jointly liable with the former owner for overcharges he collected. If this matter is not resolved informally, the tenants may file a Rent Board petition for a refund of overcharges against you and the former owner. Since you are jointly liable, if the former owner ignores the petition, or if the tenants file against you only, and they prove their claim, you will be responsible for refunding the entire amount of overcharges. Your recourse against the former owner would then be to sue him for reimbursement of excess rent that he collected. By the way, most Berkeley realtors obtain rent ceiling information from the Rent Board before advising their clients to purchase investment property.


Q: I am scheduled to attend a Rent Board hearing a few weeks from now for a rent reduction petition that I filed. I'm a little anxious about it because I know my landlord is bringing his attorney with him. How can I make sure I am as prepared as possible on the hearing date?

Review all of the facts and claims in your case so that they are fresh in your mind for the hearing. Be sure that you have compiled as much documentation as you can to support your claims. Items such as canceled rent checks and/or rent receipts, inspection reports from the Berkeley Housing Department, photographs and written correspondence between yourself and your landlord may be filed as part of the official record of your case. As your hearing date approaches, if you uncover additional documents that you did not file with your petition, you may bring those to the hearing as long as you provide a copy for the opposing party and the Hearing Examiner.
You should also familiarize yourself with Section 12 of the Rent Stabilization Ordinance and Chapter 12 of the Rent Board Regulations. These provisions set out the petition process, hearing procedure, standard of proof, and grounds for rent decreases. Copies of the Ordinance and Regulations are available at the Board's office and at the public libraries and may be viewed on our Internet site. Counselors in the Board's Public Information Unit are available to answer questions about the Ordinance, Regulations, and hearing process.

Rent Board hearings are informal proceedings in which the technical rules of evidence do not apply. Therefore, many parties feel comfortable attending a hearing without a representative. You may, if you wish, attend a hearing prior to your scheduled appearance in order to take a first-hand look at the process. All Rent Board hearings are open to the public. Call the Rent Board Hearings Unit for assistance in identifying an upcoming hearing that addresses grounds that are similar to those in your case. Be sure to check back with the Hearings Unit staff on the day before you plan to sit in on a hearing to be sure that the specific hearing you are planning to observe has not been canceled.


Q: I have rented a house in Berkeley since 1993. About a month ago, our landlady left a voicemail message saying that she was going to have some work done on the house. She also asked if the person who would be doing the work could stay in the room where the work was to be done. Then, before I could respond to her, the workman showed up, moved in and began the project. Soon, he moved his wife in. They've forced us to vacate our laundry room and have taken over the backyard as well. When I called the landlady to talk about adjustments to the upcoming rent payment, she said that the work that was being done was our fault and that the rent due had not changed. Can this be right?

No. You should file a petition for decrease in space for loss of the room now occupied by this new family, as well as for loss of the laundry room and the backyard. The petition should also cite any other space in your home to which you now have reduced access, for instance, if you are now sharing the bathroom and kitchen with these workers. The Rent Board does not have the authority to force your landlady to remove these people from your home, but the Board can authorize a rent reduction for the inconvenience you have been forced to endure as long as your landlady continues this intrusive practice.


Q: I recently had a clogged drain in my unit. The management company arranged to have a plumber come and clear the drain, but then they sent me the bill. Isn't it the landlord's responsibility to pay for drain clearing?

Civil Code section 1941.1 requires residential landlords to maintain the plumbing in good working order. Civil Code section 1929, however, provides that tenants may be responsible for damage they cause when they fail to exercise ordinary care. Therefore, responsibility for the plumbing bill will depend on the cause of the clog. For example, if a child flushed a toy down the toilet and it caused the drain to clog, the tenant would be responsible for the bill. On the other hand, if the drain clogged because of interference from tree roots, corroded pipes or misuse by previous tenants, then the landlord would be responsible. The plumber who made the service call should be able to identify what caused the blockage.


Q: My brother is completing his freshman year at U. C. Berkeley and just rented an apartment. His new landlady demanded a "nonrefundable" $500 deposit. Is that legal in Berkeley?

No. California Civil Code Section 1950.5(l) prohibits landlords from characterizing any security deposit, as "nonrefundable," and defines "security" as any payment, fee, deposit or charge, including an advance payment of rent. As the $500 qualifies as "security," the landlord must refund it at the end of the tenancy or use it only as reasonably necessary:

1. To compensate for the tenant's failure to pay rent; 
2. To repair damages to the premises other than for ordinary wear and tear; 
3. To clean the premises upon termination of the tenancy; and/or 
4. To pay for the tenant's failure to restore or replace personal property or appliances, if permitted in the rental agreement.

Prior to renting a unit, a landlord may request an "application screening fee" for the purpose of obtaining information about a perspective tenant, such as consumer credit reports. But again, state law (Civil Code section 1950.6(b)) limits an application fee to "the actual out-of-pocket costs of gathering information," which can include compensation to the landlord for time spent gathering such information. If the landlord does not actually check references or get a credit report, however, the fee must be returned. In 1997, the maximum application fee was set at $30.00. The law allows landlords to increase the maximum fee by Consumer Price Index, beginning in 1998. Therefore, today the landlord may charge approximately $40.


Q: About two years ago, I graduated and moved from Berkeley to take a job. While I was in school, I never checked with the Rent Board about my rent. I've since found out that I was substantially overcharged. Is it too late for me to take action against my former landlord?

A recent amendment to Rent Board Regulation 1206 now allows former tenants to file petitions for recovery of rent overcharges up to three years after they vacated. Since you moved out less than three years ago, you may file a petition for Individual Rent Adjustment with the Rent Board on the basis of illegally high rent. You may request a petition from our office or download a petition form from the Board's website and file by return mail. It is advisable that you substantiate your claim by submitting proof of the amount of rent paid (canceled checks, rent receipts, etc.). If the landlord does not object to your petition, your petition may be decided without a hearing. In that case, the Board would simply mail its decision on your petition to both you and your former landlord.

If the petition is decided in your favor and the landlord still does not refund the overcharges to you, you may need to pursue the matter in Small Claims Court in order to recover the monies owed to you. Small Claims Court has historically followed the decision of the Rent Board on issues of rent overcharges. In the meantime, the landlord would be ineligible for any rent increases, including Board-approved Annual General Adjustments, until you receive your refund.


Q: I understand that a tenant is required to maintain rental property in a responsible manner. What if an otherwise good, reliable tenant accidentally damages the unit? For instance, if linoleum flooring is accidentally torn while moving a piece of furniture, is the tenant liable for that damage?

California Civil Code §1950.5 states that a landlord may use the tenant's security deposit "for any purpose, including, but not limited to…the repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant." So the question is whether the tear in the floor is better characterized as "ordinary wear and tear" or not. Assuming that the tear is significant, it is quite likely that you will be held responsible for the damage, however accidental. The charge, however, must be reasonable and proportional to the damage. Thus, if the floor can be "patched," then the landlord should not charge for replacement of the entire floor, especially when the linoleum is already worn.


Q:  Does a 30-day notice have to be given on the first of the month?

No.  Unless the rental agreement expressly states that notice is to be served on a certain day, a 30-day notice to terminate a tenancy may be served on any day of the month, even if rent is due on the first of the month.  The tenancy terminates 30 days after the notice is served.  Likewise, unless the rental agreement specifies something different, a 30-day notice to change the terms of a tenancy may be served at any time and will become effective 30 days later.  


Q:  Am I required to pay rent after the landlord has cleared the problems cited in an inspection report?  My landlord sent me a letter stating that now that the repairs are complete, I must pay rent beginning the first of the month.  But I also filed a lawsuit.  Doesn’t this mean I don’t have to pay rent until we go to court?  Today is the seventh of the month.  Can he pursue me legally for not paying this month’s rent?

An inspection report that cites code or habitability violations does not justify the nonpayment of rent.  The filing of a lawsuit, likewise, does not justify the nonpayment of rent. It is generally not a good idea to withhold rent without prior authorization from the courts or the Rent Board.  A landlord may file an eviction action and/or an action to recover outstanding rent against a tenant who withholds rent without authorization.  As a defense to an eviction action, a tenant may allege the existence of habitability violations.


Q: My roommate and I are having some problems with our building manager. He lives in the unit directly below ours, and has been complaining about late night noises such as footsteps and the occasional thud when we drop something. He wants us to move to the ground floor unit, but we prefer living on a higher floor. He has threatened to start writing "official complaints" that will lead to our eviction. We are concerned because our lease does state that 10:00 p.m. to 6:00 a.m. are "quiet hours", and that no sounds should be audible outside our apartment during that time. We are both college students and we often stay up at night studying. How can we handle this situation?

You are entitled to make reasonable use of your apartment. Reasonable use includes walking around the unit at any time of the day or night.  "Quiet Hours" provisions in leases usually seek to limit avoidable, excessive noise, such as blaring stereos and televisions, frequent parties and raucous conversations. To be considerate of your downstairs neighbor's right to the quiet enjoyment of his apartment, you might avoid wearing heavy shoes, and take care not to slam doors or toss things on the floor. But if you are just making normal use of your apartment, you are not violating the "Quiet Hours"  provision of your lease.


Q: My question is about renters" insurance. Do we, as tenants, have any insurance implicit in our lease agreement? Or is this something we need to purchase separately through an insurance company?

No insurance is implicit in your lease. If you want to insure your personal possessions, you will need to purchase renters" insurance. Any insurance broker can tell you how to get this type of coverage.


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