The Petition Process
(Updated December 2012)


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Contents

Overview

Petition Filing

Response to Petition; Scheduling of Hearing

IRA petitions
Other Petitions

After a Hearing is Scheduled

Request for continuance
Prehearing agreement

Preparing For a Hearing

Representation
Evidence
Subpoenas

At the Hearing/Settlement Conference

IRA petitions
All petitions

After the Hearing/Settlement Conference

Compliance Hearing

Administrative Decision

Tenant Petition for Individual Rent Adjustment (IRA)

General Information

Completing a petition

Supporting documentation

Request for expedited hearing

Processing the Petition

Landlord Petition for Individual Rent Adjustment (IRA)

General Information

Completing the Petition

Processing the Petition

Phase-in of Increases

Temporary Adjustments for Petitions Taking Over 120 days

Advisory Decisions for Exempt Units

Request to Implement Preliminary Approved Capital Improvements Increases

Petition For Rent Withholding For Failure to Register

General Information

Completing the Petition

Processing the Petition

Dismissal of Petition upon Proper Registration

Following the Hearing

Petition Appealing Certificate of Permissible Rent Level

General Information

Completing the Appeal of Certificate

Petition to Determine Exempt Status of Rental Unit

General Information

Completing the Petition

Tenant Review of Exempt Status

Petition for Determination of Occupancy Status

General Information

Completing The Petition

Effect of Determination

Petition for Eligibility to Set Initial Rent

General Information

Completing the Petition

Appealing a Decision on a Petition

Request for Reconsideration

How to Complete a Proof of Service Form

How to Obtain a Subpoena or Subpoenas Duces Tecum

How to obtain a subpoena.

Service of the subpoena

Witness fees

 


THE PETITION PROCESS

Filing a petition with the Rent Board is a way to change a rent ceiling, or to obtain a determination regarding a rental unit's exempt status or a landlord's eligibility to set an initial rent. The seven categories of petitions and the matters they address are: (Click on a category of petition for a more detailed discussion.)

Tenant Petition for Individual Rent Adjustment (IRA) ("T" petition)
A tenant seeks to reduce the rent ceiling based on one or more grounds. A tenant who prevails might be entitled to a refund of rent.

Landlord Petition for Individual Rent Adjustment (IRA) ("L" petition)
A landlord seeks to increase the rent ceiling based on one or more grounds.

Petition for Rent Withholding for Failure to Register ("RWN" petition)
A tenant seeks to compel a landlord to register with the Rent Board a rental unit that is not exempt.

Petition Appealing Certificate of Permissible Rent Level ("C" petition)
A landlord or tenant seeks to challenge rent ceilings that the Rent Board has recently certified.

Petition to Determine Exempt Status of Rental Unit ("E" petition)
A landlord seeks to challenge the Rent Board's administrative determination that a rental unit is not exempt from registration. (A tenant who seeks to challenge an administrative determination that a rental unit IS exempt should file an RWN petition.)

Petition for Determination of Occupancy Status ("D" petition)
A landlord seeks a determination as to whether the tenant occupies the unit as his or her primary residence. Tenants who do not will lose their rent control protection.

Petition for Eligibility to Set Initial Rent ("IRD" petition)  
A landlord or tenant seeks a determination as to whether the landlord may set a new initial rent under the Costa-Hawkins Act (i.e., at market). If the landlord is not eligible to do so, he or she may not charge more than the rent ceiling for the prior tenant.

Before filing a petition, it is a good idea to review the appropriate sections of the Rent Ordinance and the Rent Board Regulations. The relevant sections are noted in the discussion of each petition category. Also, Rent Board counselors are available to answer questions about the petition process. Our office is located at 2125 Milvia Street (corner of Center Street), Berkeley, or you can call us at (510) 981-7368 (981-RENT). Office hours are Mondays, Tuesdays, Thursdays and Fridays, 9 a.m. to 4:45 p.m., and Wednesdays, 12 noon to 6:30 p.m.

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Petition Filing

In all cases, the process begins by mailing or bringing the original petition form to the Rent Board office. The petition must include a completed proof of service showing that a complete copy of the petition and any attached documents have been hand-delivered or mailed to the other party. A proof of service is required every time documents are filed in connection with a petition. Instructions for completing the petition forms are included under each category of petition. If the petition is incomplete, or required documentary evidence is not included, Rent Board staff will notify the petitioner of the problem and request that the deficiency be corrected. A filing fee must be paid to file a Petition to Determine Exempt Status of a Rental Unit; it is $20 for the first unit and $10 for each additional unit, to a maximum of $100. There is no fee for filing other types of petitions.  

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Response to Petition; Scheduling of Hearing

IRA petitions. After a completed tenant or landlord IRA petition is filed, the Rent Board will send a response form to the opposing party that includes notice of the right to object to the petition, a list of the possible objections, and notice that a failure to object within 20 days of the date the notice is mailed may constitute a waiver of the respondent's right to object. An objection must be accompanied by a proof of service form showing the petitioner was sent a copy. If an objection is not filed within 20 days, the petition may be decided without a hearing. The petition will be decided without a hearing if 1) no objections are filed, 2) the petitioner does not request a hearing, and 3) the hearing examiner determines that a decision can be rendered without the need for live testimony. (Regulation 1205.) Please review the section on Administrative Decisions, below, for more on decisions issued without a hearing.

After the response form is filed, the Rent Board will schedule the hearing and notify each party by mail of the time and date. Hearings are held at the Rent Board offices.

Other petitions. After a petition is filed for rent withholding, to appeal a certified rent, to determine a unit's exempt status, or to determine eligibility to set an initial rent, the Rent Board will notify the parties of the time and date of the hearing. In a petition for rent withholding or to determine occupancy status, the Rent Board will also send a response form to the opposing party. Responding is optional, but may help narrow the issues and expedite the hearing. If a tenant files both a tenant IRA petition and a rent withholding petition, the Board will consolidate them for a single hearing date.

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After a Hearing is Scheduled

Request for continuance.  A hearing date can be continued (postponed) only for good cause or if both parties agree. Good cause includes, but is not limited to: the failure of a party to receive notice, the illness of a party or witness or other emergency that makes it impossible to appear on the scheduled date, or the failure of a party to provide the hearing examiner with required pertinent information in a timely manner. (See Regulation 1224.) Inconvenience or difficulty in appearing is not good cause. You must follow these steps before the Board will consider your request to have the hearing rescheduled:

  • Contact the opposing party or parties and ascertain their position regarding the request for a continuance. Attempt to determine acceptable alternative dates upon which all parties agree. 
  • Prepare a written request for a continuance to the Board, stating the reason for the request and acceptable alternative dates. State whether the opposing party agrees to a continuance and the alternative dates. If you were not able to reach the opposing party, explain what efforts you made to contact them. 
  • Submit the continuance request to the Board, along with a Proof of Service showing that a copy was mailed to all opposing parties.

A continuance request should be filed as soon as possible and at least 48 hours before the scheduled hearing, unless good cause is shown for a later request. Do not consider a continuance request granted unless you have received confirmation from the Board.

Prehearing agreement. If the parties reach an agreement resolving the issues raised by the petition, a hearing may not be necessary. The petitioner may request that the petition be dismissed or submit a signed written agreement to the hearing examiner for review. If the agreement is accepted and the hearing canceled, the Rent Board will notify the parties.

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Preparing For a Hearing

Representation. A party may represent him or herself, or be represented by an attorney or other person of his/her choosing

Evidence. Parties should gather all documentation relevant to their case and consider whether witnesses are needed. A party who intends to offer documents into evidence should submit them as far in advance of the hearing as possible, with a proof of service showing that a copy was provided to each opposing party. If the party cannot submit the documents prior to the hearing, he or she must bring one copy for each opposing party, and one copy for the hearing examiner. For rent withholding and exempt status hearings, a party must also bring a copy for Registration Unit staff. Documents may not be accepted into evidence unless a sufficient number of copies is provided. The Rent Board maintains a property file for each registered property, and all relevant documents in the property file will be considered at the hearing. The parties may review Rent Board property files prior to the hearing; they may request copies of documents in the file at 10 cents per page.

Subpoenas. A party who wishes to subpoena a witness or documents for the hearing must submit an Application for Subpoena/Subpoena Duces Tecum to the Rent Board as soon as practicable before the hearing. (Go to How to Obtain a Subpoena for more information.) If the hearing examiner decides that it is warranted, the Rent Board will issue a subpoena. However, the requesting party is responsible for delivering the subpoena to the witness once it is issued.

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At the Hearing/Settlement Conference

IRA petitions. These petitions are scheduled for a combined hearing/settlement conference, conducted by an impartial hearing examiner. At the settlement conference, the hearing examiner acts as a mediator, helping the parties explore whether they can resolve the issues raised in the petition amicably and consistent with the Ordinance. If the parties enter into a settlement agreement, the agreement is tape-recorded. If the parties do not reach an agreement during the settlement conference, the hearing examiner will consider the testimony and evidence and reach a decision after the hearing.

Even if the parties do not reach an agreement at the settlement conference, the discussion often helps clarify the issues and the parties can sometimes agree on certain facts. Narrowing the issues and disputed facts will usually expedite the hearing, which immediately follows the settlement conference.

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All petitions. A hearing is an official administrative proceeding, which is tape-recorded but less formal than a court trial. Documentary evidence may be submitted (although it is preferable to do this before the hearing), each party may testify, present witnesses, and cross-examine the opposing party and his/her witnesses. The hearing examiner acts as a judge and will also ask questions of all parties and their witnesses.

Generally, a hearing will be limited to the issues raised by the petition and the filed objections. However, the hearing examiner has the discretion to consider additional issues and objections when it is in the interest of fairness, and all necessary steps are taken to ensure that all parties have a full and fair opportunity to respond to the newly raised matters. (Regulation 1221.) The petitioner must prove their case by a preponderance of the evidence, even if the opposing party fails to object to a petition or appear at the hearing.

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After the Hearing/Settlement Conference

If a hearing was held, the hearing examiner may leave the record open to receive additional documents. Any such documentation must include a proof of service showing a copy was sent to the other party. After the record is closed, the hearing examiner issues a written decision based upon the testimony and documentary evidence presented and all relevant Board records. The hearing examiner's decision is mailed to all parties. Either party may appeal the decision.

If the parties entered into a settlement agreement, the hearing examiner will issue a decision Pursuant to a Settlement Agreement, which is mailed to the parties. A Settlement Agreement may not be appealed.

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Compliance Hearing

As part of a decision, a landlord may be required to take certain action, for instance, to refund overcharges or make repairs, and provide the Rent Board with proof of compliance. The proof of compliance must be accompanied by a proof of service showing the tenant was sent a copy. If compliance is not challenged in writing within the time set by the hearing examiner, the hearing examiner will issue a compliance decision stating that the landlord has complied with the order in the decision.

If the tenant challenges compliance, the Board will schedule a compliance hearing. At a compliance hearing, the landlord must demonstrate compliance by a preponderance of the evidence. The same procedures that apply to hearings on petitions apply to compliance hearings. After the hearing, the hearing examiner will issue a compliance decision stating whether the landlord has complied with the order and if further action is necessary.

Even absent an order to submit proof of compliance, if a dispute arises as to whether there has been compliance with a previously issued decision, either party may request that the Board schedule and hold a compliance hearing. (Regulation 1250.)

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Administrative Decision

A hearing examiner will issue an administrative decision (that is, a decision without a hearing) in an IRA petition if:

An administrative decision is based on the petition, the attached documentation, and information in the Board's property files. Even if no hearing is held, the petition will not be granted unless authorized under the Regulations and supported by a preponderance of the evidence. A copy of the decision will be mailed to all parties.

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TENANT PETITION FOR INDIVIDUAL RENT ADJUSTMENT (IRA)

General Information

Tenants living in rent-controlled units may file this petition to request an adjustment to the unit's rent ceiling and/or a refund of rent overcharges. Tenants in the same unit should file one petition. Tenants in different units at the same property should attempt to file their petitions at the same time, so the petitions can be consolidated for hearing. Tenants have three years from the date they vacate a unit to file a petition concerning that unit. (Regulation 1206)(D).)

The forms needed for filing a Tenant IRA petition, the various grounds for filing, and the relevant sections of the Ordinance and the Regulations (enacted by the Rent Board Commissioners to implement the Ordinance) are as follows:

 

Tenant Petitions

Document Link

Document Description
(ALL document files are PDF files)

Rent Board Regulation or BMC Citation

Tenant IRA Petition 

All Tenant IRA Petitions

BMC sec 13.76.120; Chapter 12 of the Regulations

Tenant Schedule A  

Illegally High Rent
(includes unrefunded security deposit)

Regulation 1271 

Tenant Schedule B 

Unpaid Interest on Security Deposit

BMC sec 13.76.070; Chapter 7 of the Regulations

Tenant Schedule C 

Decrease in Living Space or Housing Services; Substantial Deterioration; Failure to Provide Adequate Services; Failure to Comply with Codes or the Warranty of Habitability

BMC sec 13.76.120 C.4, C.5, C.6; Regulation 1269(B)

Tenant Schedule D 

Reduction in the Number of Tenants Allowed

BMC sec 13.76.120 C.4; Regulation 1270 

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Completing a Petition

A complete petition includes the following:

1.  Tenant IRA Petition form (2 pages); 

2.  The appropriate schedule(s);*

3.  Supporting documentation such as: a lease or rental agreement, notices of rent increase, canceled rent checks, rent receipts, and correspondence with the landlord or property manager; 

4.  Proof of service showing that the landlord has been sent a complete copy of the petition.

* NOTE: The petition should include all grounds for filing that apply (in other words, file all applicable schedules), because tenants may be precluded from filing another petition later for a claim that exists now.

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Supporting documentation. For allegations that the landlord has allowed the unit to substantially deteriorate, failed to provide adequate services or to comply with applicable codes or the warranty of habitability, it is advisable to schedule a City of Berkeley Housing Code Enforcement inspection and attach a copy of the housing inspector's report to the petition. Date-stamped photographs are often helpful when the condition of the unit is at issue.

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Request for expedited hearing. If a landlord has begun eviction proceedings, the tenant may request that his/her petition be given priority by filing with the Rent Board a request to expedite the petition. (Regulation 1215.) A copy of the 3-day or 30-day notice to quit must be attached, and, if submitted after the petition is filed, a copy of the request to expedite must be served on the landlord.

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Processing the Petition

When a petition is accepted, Rent Board staff will mail the landlord a Notice of Right to Object to Tenant's Individual Rent Adjustment Petition. The notice provides detailed information regarding the various grounds for objection. Landlords have 20 days from the date of mailing to file an objection (Board staff will determine the deadline date and include it on the Notice), and must attach a proof of service to the objection, showing that a copy of the objection has been sent to the petitioning tenant(s). Failure to file an objection may constitute a waiver of the landlord's right to raise the objection. See Petition Filing for more information about settlement conferences and hearings.

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LANDLORD PETITION FOR INDIVIDUAL RENT ADJUSTMENT (IRA)

General Information

A landlord of a rental unit or units subject to rent ceiling controls may file a petition to request rent ceiling increases, as long as the affected units have been properly registered (i.e., all fees paid in full and the requisite registration statements filed) for at least 30 days prior to the filing of the petition. (Regulation 1206(A).)

A landlord seeking rent ceiling increases on more than one ground should file the first document listed below, and attach the appropriate schedules. A landlord seeking rent ceiling increases on a single ground, e.g., Capital Improvements or Increased Occupancy, should file the single-ground form at the bottom of the table.

 

 
Landlord Petitions 

 

Document Link

Document Description
(all document files are PDF files)

Rent Board Regulation or BMC Citation

Landlord IRA Petition 

All Landlord IRA Petitions

BMC sec 13.76.120; Chapter 12 of the Regulations

Landlord Schedule A 

Capital Improvements

Regulation 1267 

Landlord Schedule C 

Increased Occupancy (Additional Tenants)

Regulation 1270 

Landlord Schedule D 

Change in Space or Services 

Regulation 1269 

Landlord Schedule E 

Adjustment and/or Maintenance of Base Year Net Operating Income (MNOI)

Regulations 1262, 1264

Landlord Schedule G 

Historically Low Rent (HLR)

Regulation 1280 

Landlord Schedule H 

Restoration of Previously Lost AGA's

Regulation 1278 

Landlord Schedule I 

Low Rent in 1976-79

Regulation 1268 

Landlord Schedule J 

Increased Debt Service

Regulation 1276 

Landlord Capital Improvements 

Capital Improvements ONLY

Regulation 1267 

Landlord Increased Occupancy 

Increased Occupancy ONLY

Regulation 1270 

Landlord Historically Low Rent 

                    Historically Low Rent ONLY

Regulation 1280 

Landlord No Vacancy Increases since 1998

(Forms and Q&A)

For Units in Properties with no Vacancy Increases since 1998 (More Info)

Regulation 1282

For information on the Landlord Petition to Implement Rent Increases Conditionally Granted in Previous Advisory Decision and the Request to Implement Preliminarily Approved Capital Improvement Increases, see the respective sections below.

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Completing the Petition

A complete petition includes the following:

1.  Landlord IRA petition (2 pages), including the grounds for the petition; 

2.  The appropriate Schedule for each type of increase requested (if multiple grounds are claimed); 

3.  Supporting documentation required by, and organized according to, the relevant schedule(s); 

4.  Proof of service showing that the tenants of each affected rental unit have been sent a complete copy of the petition.

The schedules contain information and instructions on completing them. A landlord should let tenants know of the impending petition. If the tenants agree that the landlord is eligible for the requested rent adjustment, they may be willing to sign an Agreement of Parties/Waiver of Right to Hearing. This Agreement may be filed with the petition, or after the petition is filed. (Note that petitions submitted with an Agreement of Parties must still be accompanied by a proof of service indicating that all parties have been served with a copy.)

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Processing the Petition

If a petition is filed that is incomplete or for which required documentation is missing, Rent Board staff will notify the landlord in writing and give the landlord an opportunity to make corrections.

Once a petition is accepted, unless it is accompanied by an Agreement of Parties, Rent Board staff will mail all affected tenants the appropriate Notice of Right to Object to Landlord's Individual Rent Adjustment Petition. The notice provides detailed information regarding the various grounds for objection. Tenants have 20 days from the date of mailing to file an objection (Board staff will determine the deadline date and include it on the Notice). Low-income tenants have the same 20 days to request a phase-in of increases (see below). An objecting tenant must attach a proof of service to the objection, showing that a copy has been sent to the landlord. Failure to file an objection may constitute a waiver of the tenant's right to raise the objection. See Petition Filing for more information about settlement conferences and hearings.

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Phase-in of Increases

All tenants. Regulation 1274(B) limits the implementation of increases. The current limitation is the greater of: 1) $67.00 per month; or 2) 15 percent of the rent ceiling on the date the petition is filed, to a maximum of $100.00. The limitations are increased each January 1 by the percentage increase in the Consumer Price Index. When a decision grants increases that exceed the limitation, a phase-in schedule is included. A tenant may waive his/her right to the phase-in of increases, but the waiver must be in writing.

Limited income tenants. Low-income tenants, as defined in the applicable regulation, may qualify for a more gradual phase-in of rent increases granted in certain types of petitions. These include petitions for:  

  1. Historically Low Rent (Regulation 1274(C));

  2. Capital Improvements/Major Repairs (Regulation 1267(E)(5)); and

  3. Restoration of Previously Lost AGAs (Regulation 1278(D)(1)).

Tenants who think they qualify for such a phase-in should contact Rent Board staff for assistance. Tenants who appear to qualify will be asked to complete a Declaration of Household Income form, which must be filed with the objection form.

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Temporary Adjustments For Petitions Taking Over 120 Days

If a decision takes more than 120 days from the date a complete petition was filed, the hearing examiner may award a temporary increase to compensate the petitioner for any monetary loss caused by the delay. The petitioner must request this increase, and it will not be granted if the petitioner's conduct or other good cause is responsible for the delay. Temporary adjustments awarded under this regulation (Regulation 1281) are not subject to the Regulation 1274 phase-in.

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Advisory Decisions for Exempt Units

Individual rent adjustments cannot be granted for units that are exempt from the Ordinance. However, under Regulation 1214, in connection with any IRA petition, a landlord may request an advisory decision that conditionally grants building-wide rent ceiling increases (for instance, for capital improvements or MNOI) to units that are exempt when the petition is filed. An advisory ruling can be issued only if no more than 50 percent of the building's units are exempt and no more than 50 percent of the non-exempt units are vacant. When a unit loses its exempt status, the landlord may petition to implement (increase the rent ceiling by) the conditionally granted increase.

Although landlords are now permitted to set an initial rent for most new tenancies, the implementation of a conditionally granted rent increase may still be relevant in cases where the landlord is not eligible to set an initial rent. (Go to Non-qualifying vacancies in the Guide to Rent Control for more on this subject.) For more information, see the instructions for The Landlord Petition to Implement Rent Increases Conditionally Granted in Previous Advisory Decision.

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Request to Implement Preliminarily Approved Capital Improvement Increases

In addition to rent increases for completed capital improvements, Regulation 1267 authorizes preliminary approval of capital improvements to be completed within two years of the petition filing date. Such a request is made on Table B (Planned Capital Improvements) of Landlord Schedule A. The hearing examiner will decide whether the proposed improvement qualifies for a rent increase under Regulation 1267, and whether the written estimate or proposal is adequate.

After work is completed for a preliminarily approved capital improvement, a landlord must file with the Board a Request to Implement Preliminarily Approved Capital Improvement Increases with documentation of the actual cost and payment for the work done, and serve a copy on the tenants. Tenants will have 15 days from the date the landlord mails the Notice to file a written challenge to the rent adjustments based on the cost, completion, or quality of the work, or to report a new, post-January 1, 1999 tenancy that the landlord did not report on the Notice. (Under Regulation 1267(I), rent increases granted after January 1, 1999, may be reduced or eliminated by vacancy increases implemented on or after that date.) If a tenant objects or the hearing examiner needs additional evidence, a hearing will be scheduled.

The hearing examiner's decision will be mailed to all parties. Only after the decision is issued and the requisite notice given may the landlord implement authorized rent increases. The landlord must give 30 days' written notice for a rent increase that is up to 10 percent of the rent charged in the past 12 months, and 60 days' written notice for a rent increase that is more than 10 percent of the rent charged in the past 12 months.

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PETITION FOR RENT WITHHOLDING FOR FAILURE TO REGISTER

General Information

The Rent Stabilization Ordinance requires landlords to file a completed registration statement and pay an annual registration fee for every unit that is being rented or is available for rent for residential use, unless specifically exempted. Exemptions are found in B.M.C. section 13.76.050 and Regulation 508. (Go to Exemptions in the Guide to Rent Control for a description of the units exempt from registration.) A tenant who resides in a unit that is subject to the Ordinance's registration requirements but is not properly registered may petition the Board for authorization to withhold rent until the property is registered. Chapter 15 of the Regulations covers rent withholding petitions.

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Completing the Petition

A tenant should first consult with Rent Board staff about the status of their unit. If it appears that the property is subject to rent control and not properly registered, the tenant should complete the Petition for Rent Withholding. All petitioners must sign the declaration on the last page of the petition form. See Petition Filing for further filing instructions.

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Processing the Petition

The Board will schedule a hearing before a hearing examiner. Hearings on rent withholding petitions are conducted in accordance with the regulations governing Individual Rent Adjustment petitions (Regulations 1221 - 1259), as long as they don't conflict with regulations governing rent withholding petitions. (Regulation 1506.) See Petition Filing for information about hearings.

The parties to a rent withholding petition alleging a failure to register are the petitioning tenant, the landlord, and the Rent Board, as represented by administrative staff. Board administrative staff will research the property's registration status and prepare a report. The report will be mailed to the parties at least five days prior to the hearing on the petition. Be advised that the petition process may continue even if the petitioner requests dismissal of the petition or fails to appear at the hearing, and that the parties cannot enter into a settlement agreement regarding the property's registration status. (Regulations 1501 - 1503.)

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Dismissal of Petition upon Proper Registration

If, before the hearing date, the landlord properly registers the property, the hearing examiner will dismiss the petition and notify all parties of the dismissal. (Regulation 1528.)

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Following the Hearing

If the hearing examiner determines either that the property is properly registered or that it is exempt from registration, she or he will issue a decision denying the petition and explaining why. Rent withholding will not be authorized in such cases.

If the hearing examiner determines that the rental property is subject to registration but not properly registered, she or he will issue a decision ordering the landlord to register the property and authorizing the tenant(s) to withhold future rent beginning with the next regularly scheduled rent payment after the effective date of the order. The effective date of the rent withholding order is 35 days following the date Board staff mails the hearing examiner's decision. The rent withholding order does not become effective if, within the 35 days, the landlord registers the property or files an appeal. The filing of an appeal stays (delays) the effective date of the rent withholding order. (Regulation 1529.)

If the petitioning tenant moves out before the hearing examiner issues a decision, but the property is not properly registered, the hearing examiner will issue a decision ordering the landlord to register, and dismiss the request for rent withholding as moot.

If the order to withhold rent becomes effective, the tenant must deposit rent into an escrow account maintained by the Board. When the landlord properly registers the property, the hearing examiner will issue a compliance decision dissolving the rent withholding order, and ordering the disbursement of any monies in escrow. If the landlord registers the property within 60 days of the effective date of the order, the tenant and the landlord will each receive one-half of the funds in escrow. If the landlord fails to register the property within 60 days, all funds in escrow will be disbursed to the tenant, and the tenant will remain entitled to withhold rent until the landlord properly registers the property. (Regulations 1531, 1532.)

The compliance decision becomes effective 10 days after the date the Board mails it to all parties, unless a tenant requests a compliance hearing within that time. If a compliance hearing is not requested, the tenant must resume regular rent payments beginning with the next regularly scheduled rent payment due. In addition, if the tenant withheld rent but did not comply with an order to pay it into escrow, the tenant must pay the withheld rent to the landlord. (Regulation 1530.)

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PETITION APPEALING CERTIFICATE OF PERMISSIBLE RENT LEVEL

General Information

A landlord or a tenant can challenge a Certificate of Permissible Rent Level by filing an appeal, which the Board processes as a petition. The appeal must state the factual basis for contesting the certificate, and it must be filed within 15 calendar days of the date the certificate is issued if it is personally served, or within 20 calendar days if the certificate is served by mail. Tenants who allege rent overcharges must file a separate Tenant Petition for Individual Rent Adjustment with this appeal petition.

Regulations 1004 - 1006 govern Certificates of Permissible Rent Levels. Appeals of Certificates are covered in Regulation 1007.

Common grounds for appeal are:

1.  The certificate does not accurately reflect a prior rent ceiling determination;

2.  The certificate does not reflect an initial rental rate established for a new tenant on or after January 1, 1996; and

3.  The unit was not eligible for Annual General Adjustments (AGAs) after the last rent ceiling determination or establishment of the initial rental rate.

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Completing the Appeal of Certificate

Provide all information requested on the Appeal of Certificate form. Go to Petition Filing for information on filing the Appeal of Certificate and the hearing.

A decision on an Appeal of Certificate is the Board's final decision and can only be appealed directly to court.

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PETITION TO DETERMINE EXEMPT STATUS OF RENTAL UNIT

General Information

Under Regulation 521, a landlord who believes a rental unit is exempt from registration may advise Rent Board staff of the nature of the claimed exemption, and the facts supporting the claim. Rent Board staff will issue an administrative determination and mail a copy to the landlord and the tenants.

If Rent Board staff denies exempt status, the landlord may request a hearing on the issue by filing a Petition to Determine Exempt Status of Rental Unit, within 15 days of the date the Board mails its determination.

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Completing the Petition

Provide all information requested on the Petition to Determine Exempt Status form. Information must be provided for all owners of record, and they must all sign the petition. See Petition Filing for information on filing the petition and the hearing on the petition. Note that a filing fee is charged for this petition:  $10 for the first unit, and $10 for each additional unit. 

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Tenant Review of Exempt Status

A tenant of a unit determined by Board staff to be exempt may, at any time, obtain review of the unit's exempt status by filing a Petition for Rent Withholding for Failure to Register. However, if the exempt status resulted from a landlord-initiated hearing on a Petition to Determine Exempt Status, a tenant's rent withholding petition will be denied, unless the tenant shows either that there has been a material change in the facts since the first hearing was held, or that the information the landlord supplied in support of the exemption was false. (Regulation 522.)

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PETITION FOR DETERMINATION OF OCCUPANCY STATUS

General Information

Rental units that are kept primarily for secondary residential occupancy, such as a pied-a-terre or vacation home, or primarily for non-residential use, such as storage (with certain exceptions), commercial, or office use, are not subject to the rent ceiling limitations of the Rent Stabilization Ordinance. A landlord may file a petition seeking a determination that a tenant does not occupy the unit as a primary residence.

Regulations 524 and 525 contain the policy and procedures for determining whether a tenant occupies a unit as a primary residence. Regulation 524(B) lists some of the factors used to determine primary residency. Tenants may be temporarily absent from their homes for employment, family or personal reasons, but still maintain their Berkeley apartment as their primary residence. More detailed information is contained in the "D" Petition packet (two files:  petition and information).

If subtenants occupy the unit as their primary residence, they are "tenants in occupancy" and rent control protections still apply. The landlord may, however, be entitled to set a new initial rent for the subtenants under the Costa-Hawkins Act and Regulation 1013(O) if all the "original occupants" have vacated the unit.

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Completing The Petition

Complete the Petition for the Determination of Occupancy Status, including a brief explanation of the basis for the petition. A copy of the petition, with all supporting documentation, must be served on all tenants claiming a right to possession of the unit. (The petition form is combined with the Petition for Eligibility to Set Initial Rent.)

These petitions are expedited: a hearing is scheduled within 30 days of the petition filing, and a decision will be issued within 30 days of the hearing. If the owner presents sufficient evidence that the unit is not continuously occupied by the tenant as a primary residence, the tenant will have the burden of proving that the unit is the tenant's usual place of return.

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Effect of Determination

A unit that is used for secondary occupancy or non-residential use is not subject to rent control. The landlord may, following proper notice under state law, raise the rent to whatever the market will bear. The tenant does not, however, lose possession of the unit, and the landlord must keep the unit registered with the Rent Board. If the tenant thereafter occupies the unit as a primary residence, the tenant must notify the owner, and the owner must file a Vacancy Registration Form with the Rent Board to report the new initial rent.

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PETITION FOR ELIGIBILITY TO SET INITIAL RENT

General Information

For most new tenancies that begin on or after January 1, 1999, a landlord may set the initial rent, as allowed by the Costa-Hawkins Rental Housing Act (Civil Code sec. 1954.50 et seq.) and Regulation 1013. If the new tenancy follows a non-qualifying vacancy, however, the landlord may not set a new initial rent but instead is limited to the rent ceiling in effect for the prior tenancy. Regulation 1018 provides a way for landlords and tenants to settle any questions over whether or not the vacancy was a qualifying one. A landlord can file this "IRD" petition before a new tenancy begins. A tenant may challenge the landlord's eligibility to set an initial rent by filing this petition, but a tenant who seeks a refund of rent overcharges must file a separate Tenant Petition for Individual Rent Adjustment with this petition.

A non-qualifying vacancy occurs where the landlord: 

If a landlord serves a 30-day notice to terminate the tenancy to recover possession of the unit so the landlord or a relative can occupy the unit as their principal residence, and the tenant vacates within one year, the tenancy is presumed terminated as a result of the notice, even if the notice is rescinded or eviction proceedings are never commenced or stopped. (Reg. 1016.) A landlord may seek to overcome this presumption by filing the Petition to Determine Eligibility to Set Initial Rent.

Completing the Petition

Complete the Petition for Eligibility to Set Initial Rent, including a brief statement about why the landlord is or is not eligible to set an initial rent. Landlords filing this petition must provide the name, address and phone number of the last tenants to vacate, the dates of their tenancy, the reason their tenancy ended and, if a 30-day notice to vacate was served, a copy of that notice. A copy of the petition, and any supporting documents, must be served on the opposing party. (The petition form is combined with the Petition for the Determination of Occupancy Status.)

These petitions are expedited: a hearing is scheduled within 30 days of the petition filing and a decision will be issued within 30 days of the hearing. A copy of the petition will be referred to Rent Board administrative staff, who will investigate the basis for the petition and prepare a report of his or her findings.

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APPEALING A DECISION ON A PETITION

Any hearing examiner's decision, except a decision on a Certificate of Permissible Rent Level, can be appealed to the Rent Board Commissioners. On appeal, the Board is limited to reviewing the evidence that was presented at the original hearing on the petition. The Board will not permit or consider new evidence. You may appeal the Decision of the Hearing Examiner within 30 days of the date you received it.  A decision is presumed to be received within 5 days of the date it is mailed.  Therefore, an appeal that is filed more than 35 days after the date the hearing examiner’s decision was mailed will be dismissed unless it is proven that the decision was not received within five days of mailing.  An appeal is filed when it is received in the Rent Board offices. Appeals mailed to the Rent Board are filed on the date the mailed documents are received by the Board, not the date the appeal is postmarked.

Before appealing a decision, you should review Regulation 1242, governing appeals.

To appeal a decision, you must do the following:

1.  Complete the Appeal form.

2.  Serve a copy of the completed Appeal form, including any attachments, on the opposing parties by first-class or certified mail, or hand-delivery. The person appealing cannot be the person who mails or delivers the Appeal.

3.  Complete a Proof of Service form indicating that all opposing parties have been served with copies of the completed Appeal and any attachments.

4.  File the Appeal, with the Proof of Service, by bringing or mailing it to the Board, and pay a filing fee of $50 per unit, up to a maximum of $250.

Any party opposing an appeal may, within 15 days from the date of receiving the appeal, submit a written response to the Board. The response must be accompanied by a Proof of Service showing all parties have been served with a copy.

All parties will receive notice of the date of the appeal hearing before the Rent Board Commissioners and a copy of the legal staff's recommendation (to affirm, modify, reverse or remand the hearing examiner's decision) at least 14 days before the hearing date. A party may submit a written response to the staff recommendation up to six days before the hearing date.

At the appeal hearing, each party or their representative is allowed seven minutes to address the Board. After hearing the appeal, the Commissioners vote to affirm, modify, reverse, or remand the hearing examiner's decision. (Five votes are needed.) Once the Board has acted, it will send a Notice of Decision on Appeal to all parties. A party who disagrees with the Board's decision may seek judicial review within 90 days of the date of the Board's decision.

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Request for Reconsideration

If an appeal is based on the claim that: 1) good cause existed for failing to respond to a petition; 2) good cause existed for failing to appear at a hearing; or 3) relevant evidence is now available that could not, with reasonable diligence, have been discovered and produced at the hearing; the Board's Executive Director may treat the appeal as a request for reconsideration and refer the matter back to the hearing examiner.

The hearing examiner will schedule and notify the parties of a hearing on reconsideration, where the threshold issue will be whether a preponderance of the evidence supports the appellant's assertion (one of the three claims above). The appellant must prove the claim before the hearing examiner will proceed to reconsider the merits of the petition.

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HOW TO COMPLETE A PROOF OF SERVICE FORM

proof of service is required with the filing of a petition, a request for certificate of permissible rent levels, an appeal, and all written communications to the Rent Board concerning a petition, certificate, or appeal. A properly completed proof of service provides evidence that a document has been served on (delivered to) another party or the party's representative.

Proper service of documents in connection with Rent Board matters means either: 1) mailing the documents via first-class mail with the proper postage, or 2) hand-delivering the documents (also called personal service). Documents should be served by an adult who is not a party in the case.

To complete the Proof of Service , the person serving the documents must fill in the following (numbers are keyed to the numbers in the sample form below): 

1.  County of residence. 

2.  The date of service. 

3.  The documents being served (e.g., Landlord Petition for Individual Rent Adjustment). 

4.  The appropriate box checked, indicating whether the documents are being delivered in person or through the mail. 

5.  The name of the person or persons served, and their addresses; if by mail, each person's address must be stated as it appears on the envelope. 

6.  Signature. 

7.  Date.

8.  Printed name.

The original proof of service must be filed with the documents being submitted to the Rent Board.

 


PROOF OF SERVICE

I am a resident of           1.           County and was, at the time of the service, over eighteen years of age. 
On                    2.                    (date), I served one copy of the following document(s):
                                               3.                                                                          
by: (check appropriate box)

4. Delivering the documents in person to the following individual(s): 
(print name of each party served:) 

5.

4. Placing the documents, enclosed in a sealed envelope with first-class postage fully paid, into a U.S. Postal Service mailbox, addressed as follows: (print name and address of each party served:) 

5.

I declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct. 

                                              6.                                                                        7.                        
                                       (signature)                                                          (date)

                                              8.                                           
                                    (printed name)

 


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HOW TO OBTAIN A SUBPOENA OR SUBPOENAS DUCES TECUM

A subpoena is an order that requires the attendance of a witness to testify at a particular time and place; a subpoena duces tecum is an order that requires a witness to bring books, documents or other things under his or her control, which he or she is bound by law to produce into evidence. The subpoena process is available to compel the attendance of a witness who would otherwise be uncooperative. Parties to a Rent Board hearing need not be subpoenaed; their testimony can be compelled directly by the hearing examiner.

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How to obtain a subpoena.

To complete the Application for Subpoena/Subpoena Duces Tecum and the Subpoena, name the person whose testimony and/or documents are being requested. Explain why the testimony or documents are relevant to the issues in the case and why the witness is unwilling to appear at the hearing or provide the documents voluntarily.

The hearing examiner assigned to the case will review the application for subpoena or subpoena duces tecum to determine if the witness or documents are relevant to the case. Hearings Unit staff may ask for clarification or modification if the request is too broad or too vague.

If the request is approved, staff will prepare a subpoena/subpoena duces tecum, and telephone the person who applied for the subpoena that it has been issued and is ready to be picked up at the Board's office.

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Service of the subpoena.

The person requesting the subpoena is responsible for serving the original subpoena and, in the case of a subpoena duces tecum, a copy of the application for the subpoena so that the witness will know exactly what documents to deliver. The subpoena should be served as soon as possible to allow the witness a reasonable time for preparation.

The subpoena must be served personally; it cannot be mailed, nor can it be left with someone else or slipped under a door when the person to be served is not present. The subpoena may, however, be placed in the immediate presence of the person to be served as long as the person is told that the document is a subpoena and that it is being served.

Section 1987 of the Code of Civil Procedure provides that any person may serve a subpoena. The person requesting the subpoena may, at their expense, hire a private process server. After service is completed, the server is to complete the Proof of Service printed on the back of the Subpoena. The person requesting the subpoena is responsible for submitting the completed Proof of Service to the Hearings Unit as soon as possible, and in no event later than the date of the hearing.

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Witness fees.

In most cases, a witness is entitled to a fee of $35.00 per day, plus twenty cents per mile both ways for mileage to the hearing site. Certain persons, such as expert witnesses and city, state and county employees, are entitled to a higher fee; Hearings Unit staff can help determine if a witness falls into this category. Be prepared to provide these fees at the time of service. If the witness demands fees upon service and fees are not paid at that time, service is improper. If the witness does not ask for fees upon service, service is proper and the witness is required to attend the hearing; however, the witness is still entitled to these fees and may demand them at any time thereafter. If a witness raises the issue of unpaid fees at the hearing, the hearing examiner may dismiss that witness if fees are not paid at that time.

A person requesting documents (a subpoena duces tecum) must bear the expense of producing the documents. Some businesses charge copying and research fees. Those requesting documents from a business are advised to contact the business about their fee schedule and the time needed to supply the documents. A person subpoenaing documents may have to request that the hearing be postponed in order to obtain documents from some businesses. If a postponement is granted, the subpoena must be revised to indicate the rescheduled hearing date and time.

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