FREQUENTLY ASKED QUESTIONS BY LANDLORDS
1. I need to go into a rental unit to do some maintenance work. How much notice do I need to give the tenant? Does the notice have to be in writing? For what reasons can I enter a rented unit? Can I enter to check for drug use? Or to see if the tenants are good housekeepers?
The circumstances and manner in which a landlord may enter an occupied rental unit are governed by Civil Code section 1954, which provides that a landlord may enter the unit only in the following cases:
(a) In case of emergency;
(b) To make necessary or agreed repairs, decorations, alterations or improvements;
(c) To supply necessary or agreed services;
(d) To show the unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors;
(e) When the tenant has abandoned or surrendered the premises; or
(f) Pursuant to court order.
A landlord, therefore, may enter the unit to do maintenance work if it is necessary or agreed to by the tenant. The landlord must give “reasonable notice” of the intent to enter the unit--24 hours is generally considered to be reasonable notice. The entry may only be made during normal business hours, unless the tenant consents to entry at a different time. Written notice of the intent to enter is not required but it is generally advisable in order to minimize misunderstandings. Checking for drug use or to see if the tenants are good housekeepers are not valid reasons for entering a tenant’s apartment and would constitute an invasion of the tenant’s right to privacy. A landlord who abuses the right of access or uses it to harass the tenant may be subject to legal action.
2. Is it OK if I say I won’t rent to families with children? What about if I just exclude toddlers?
It is against federal, state and local law to discriminate on the basis of “familial status” in the leasing and renting of housing accommodations. This prohibition means a landlord cannot discriminate against families with minor children, pregnant women or persons in the process of securing legal custody of a minor child. Therefore, it is unlawful to refuse to rent to families with children under the age of 18. The only exception is where the landlord has publicly established and carried out a legally valid policy of renting exclusively to senior citizens.
3. I have a one-bedroom unit. Can I limit the number of tenants to 1? Can I charge more rent if I rent to more people?
A landlord generally has a right to limit the number of tenants who occupy a rental unit as long as the limitation is applied uniformly and is reasonable based on the unit’s size. An unreasonable limitation policy that has the effect of denying housing to families with children violates fair housing laws. A landlord’s policy that is more restrictive than two persons per bedroom plus one additional occupant (i.e., 2 or fewer for a 1 BR, 4 or fewer for a 2 BR, etc.) is considered suspect by the California Fair Employment and Housing Commission, the agency responsible for enforcing the state’s fair housing laws.
In Berkeley, the decision to limit the number of tenants may affect the amount of the legal rent. For tenancies beginning after January 1, 1999, the landlord may, at the beginning of the tenancy, set the amount of rent and limit the number of tenants allowed to occupy the unit. The number of tenants allowed to occupy the unit at the beginning of a post-1/1/99 tenancy is the “base occupancy level” for that unit. For tenancies that began before January 1, 1999, the base occupancy level is the highest number of tenants that occupied or were allowed to occupy the unit between June 1979 and May 1980.
If the landlord later allows additional tenants, the rent ceiling may be increased by 10% for each additional tenant allowed above the base occupancy level, unless the additional tenant is a spouse, registered domestic partner, child or parent of any of the original tenants. The landlord must file a petition with the Rent Board in order to have this increase included in the legal rent. If for any reason, the landlord insists on reducing the number of allowed occupants (e.g., refusal to allow the replacement of a roommate), the legal rent will be reduced in proportion to the decrease in allowed tenants. For example, if the base occupancy level for a unit is three and the landlord refuses to allow replacement of a roommate, the two remaining tenants will be entitled to a 33 1/3% rent ceiling decrease.
4. Can I say that I prefer a professional or a married couple?
The Fair Employment and Housing Act prohibits housing discrimination on the basis of race, color, religion, sex, marital status, national origin, ancestry, familial status, disability and source of income. The prohibition against discrimination on the basis of marital status means that a landlord cannot advertise a preference for nor refuse to rent to either married or unmarried tenants on that basis.
The prohibition against discrimination on the basis of “source of income” was added to the law, effective January 1, 2000. “Source of income” means “lawful, verifiable income paid directly to a tenant or paid to a representative of a tenant.” This means that, while a landlord may establish procedures to evaluate an applicant’s financial ability to pay rent and refuse to rent to someone with insufficient income or a poor credit history, the landlord may not advertise a preference for nor refuse to rent to a person based on their source of income (e.g., social security, public assistance, hourly wages) as long as the income is lawful. Therefore, a landlord cannot restrict occupancy to only “professional” persons.
5. Can I refuse to rent to smokers?
Yes. The fair housing laws do not specifically protect smokers and addiction to nicotine does not qualify as a handicap for purposes of the laws protecting the rights of the disabled. Although the California Supreme Court has ruled that the Unruh Civil Rights Act bars arbitrary discrimination on the basis of a person’s “personal characteristics” (e.g., hair style) or “personal traits” and it might be argued that refusal to rent to smokers is this type of discrimination, it is very unlikely that such an argument would be successful in court because there are valid business reasons for refusing to rent to smokers, e.g., concern for the health of other tenants, fire safety, lower insurance costs, reduced cleaning and maintenance expenses. The federal Fair Housing Act, in fact, provides that a landlord is not required to rent to anyone whose tenancy would constitute a direct threat to the health and safety of others or pose a risk of damage to property. As long as a no-smoker policy is applied uniformly, it is likely to be legal.
6. Can I refuse to rent to a person with a seeing-eye dog if I have a no pets policy?
No. Under state law (Civil Code §54.1), it is unlawful housing discrimination to refuse the rental of housing accommodations to (1) an individual who is blind or visually impaired on the basis that the individual uses the services of a guide dog, (2) an individual who is deaf or hearing impaired on the basis that the individual uses the services of a signal dog, or (3) an individual with any other disability on the basis that the individual uses the services of a service dog. Nor may a landlord refuse to permit such an individual to keep a guide, signal or service dog on the premises or require an additional security deposit for such dogs. The law does not, however, prevent a landlord from putting terms in the lease that reasonably regulate the dog’s presence on the premises nor does it relieve the tenant from liability for damage caused by the dog. A landlord with a no-pets policy is not required to rent to a disabled person with a pet that is not a guide, signal or service dog.
7. Can I charge an extra deposit for pets?
State law limits the amount that a landlord can charge as a security deposit to an amount no greater than the equivalent of two months rent for an unfurnished unit and three months rent for a furnished one. A landlord may not charge above these amounts even if the tenant has a pet.
8. 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.
9. Can I charge an applicant for a credit report? How much can I charge? Can I charge an application fee? How many people can I charge such a fee?
State law governs credit reports and application fees. The law permits an owner who has a rental unit available to rent to charge an “applicant” for the unit an “application screening fee” to cover the cost of obtaining information about the applicant, including personal reference checks and consumer credit reports. The fee can be no more than the greater of $44.51 or the landlord’s actual out-of-pocket costs (e.g., payment to tenant screening service or consumer credit reporting agency) plus the reasonable value of the landlord’s (or agent’s) time spent gathering the information. [The $44.51 limit may be increased by any increases in the CPI since January 1, 1998.] The landlord must give the applicant an itemized receipt and, if requested by the applicant, a copy of any consumer credit reports concerning that applicant. The landlord can charge the fee to all applicants and if several persons are seeking to rent the unit together, the landlord may charge a separate fee for each one. If, for any reason, the landlord does not perform a reference check or obtain a credit report, the applicant is entitled to a refund of some or all of the fee.
10. What should I say to applicants who I did not select to be tenants? How can I tell people I didn’t choose them without getting into trouble?
Generally, a landlord is not required to give a rejected applicant an explanation for their not being selected. A landlord will not get into trouble if he or she politely tells the disappointed applicant that the unit is being rented to someone else. As protection against claims of housing discrimination, a landlord should establish a definite screening procedure and objective criteria for judging the qualifications of prospective tenants and apply them uniformly in a fair, reasonable, consistent manner. You should have an objective, non-discriminatory tie-breaker when you have a number of applicants who all meet your criteria (e.g., first to apply, highest income). It is also advisable to keep good records of applicants and to document specifically why applicants were rejected so that, if accused of discrimination, you will be able to show valid business reasons for your decision.
There are several situations that do require the landlord to give some information to a rejected applicant. Under the Consumer Credit Reporting Agencies Act (Civ. Code §§1785 – 1785.35), a landlord who rejects an applicant based on information received in a credit report must provide the applicant with: (1) written notice of the rejection; (2) the name, address and phone number of the credit reporting agency; (3) a statement that the decision to reject was based, at least in part, on the information in the report and (4) a statement that the applicant has the right, within 60 days, to obtain a copy of the report and to dispute the accuracy or completeness of any information contained in the report. Similarly, under the Investigative Consumer Reporting Agencies Act (Civ. Code §§1786 – 1786.56), if an applicant is rejected based on information contained in a screening report, the landlord must inform the applicant that they were rejected for that reason and provide him or her with the name and address of the reporting agency. If an applicant is rejected based on information received from a third party other than a reporting agency (e.g., previous landlord, personal reference), the federal Fair Credit Reporting Act (15 U.S.C §1681m) requires that the applicant be informed at the time of the rejection that he or she may, within 60 days, make a written request for disclosure of the nature of the information obtained from the third party. Upon receipt of such a request, the landlord must disclose the nature of the information within a reasonable period of time.
11. If I have an unrelated group of tenants sharing a unit, should I use one agreement or multiple agreements?
When a group of unrelated tenants rent a unit together and all sign the same rental agreement, they are known as co-tenants and each has the same rights and responsibilities as the others. Each co-tenant is liable for the full amount of the rent even though they may have an agreement among themselves regarding the amount of each tenant’s share. The co-tenants are also equally responsible for any violations of the rental agreement. For example, if one co-tenant keeps a pet in violation of the lease, the landlord may evict all of the co-tenants. If, instead, the landlord has a separate rental agreement with each person, the individual tenants would not be liable for the rent or responsible for the violations of any of the other tenants. As long as a tenant adhered to the terms of his or her individual agreement, the landlord would have no recourse against him or her for violations committed by other tenants.
Another possibility is to have a single rental agreement with one master tenant who assumes responsibility to the landlord for all terms of the lease but is allowed to share the rental unit with roommates or subtenants. The subtenants’ agreement is with the master tenant, not the landlord, and their right to stay is dependent on the master tenant remaining in good standing. The master tenant becomes the subtenants’ landlord and can evict them if they violate the material terms of their agreement with the master tenant. The landlord retains the right to evict the master tenant, and anyone whose right to occupancy is dependent on the master tenant, for violations of the master rental agreement.
12. What is Section 8? What advantages are there for a landlord? What disadvantages?
The Section 8 rental voucher program is a federal program operated by the U.S. Department of Housing and Urban Development (HUD) that provides assistance to very low-income families, the elderly and the disabled by paying a portion of the tenants’ rent directly to the landlord. The name refers to Section 8 of the United States Housing Act of 1937, which was added by the Housing and Community Development Act of 1974. The Berkeley Housing Authority administers the Section 8 program locally.
Tenants who are found eligible for the program are issued a voucher (formerly called a certificate) and are then responsible for finding a rental unit that meets minimum health and safety standards, as determined by the housing authority. If the landlord agrees to rent to the tenant and to participate in the Section 8 program, the landlord enters into a Housing Assistance Payment (HAP) contract with the local housing authority. The housing authority pays the landlord the difference 30% of the tenant’s household income and the “fair market rent” (FMR) for the local metropolitan area, as determined by the housing authority based on HUD standards. The total rent agreed to by the landlord and tenant may actually exceed the FMR by an amount equal to10% of the tenant’s household income.
Owners executing their first HAP contract are briefed individually about the roles and responsibilities of the participants in the program. The landlord and tenants also sign a one year lease that runs concurrently with the HAP contract. After the first year, the landlord may initiate another lease or allow the family to remain in the unit on a month-to-month basis. The program is entirely voluntary for the landlord who may “opt out” of the program upon the expiration of the HAP contract, after giving at least 90 days notice.
For a landlord, the principal advantage of participation in the Section 8 program is the assurance that the majority of the rent will be paid on time by the housing authority. Because the tenant’s portion is relatively modest, the tenants are usually able to pay their share on time as well. Section 8 housing is also exempt from most provisions of Berkeley’s rent control law, which means the landlord may obtain a market rent for a unit that would otherwise be controlled.
There are no glaring disadvantages to participation in the Section 8 program. Some landlords complain about the red tape that goes along with the program and that the housing authority’s determination of a fair market rent is sometimes on the low side.
Go to the Rent Board "Mailbag" for additional questions and answers.