Rent Stabilization Board
Rent Stabilization Board

Guide to Berkeley’s Rent Stabilization Program
Rent Control & Eviction Protection
February 2013

Evictions

Proceed with Caution

Evictions are governed mainly by state law, but the Rent Stabilization Ordinance imposes additional requirements. Evictions are complex proceedings. A landlord must follow state and local law to the letter to successfully evict a tenant. Furthermore, a landlord’s failure to follow certain procedures may entitle a tenant to substantial damages. Rent Board counselors are available to help parties understand their rights and responsibilities, but they do not provide legal advice to landlords or tenants regarding eviction proceedings in court. Landlords and tenants are strongly urged to obtain legal advice before filing an eviction action or contesting an eviction attempt. Consult the Other Sources page on our website for referrals and publications.


Eviction Checklist – Local Requirements

The Ordinance adds the following requirements to state law procedures for evictions (see B.M.C. section 13.76.130 B, C and D):

In the notice to quit or notice of termination, and in the summons and complaint (the lawsuit to evict):

  • The landlord must specify one or more of the good causes for eviction listed below.
  • The landlord must allege compliance with B.M.C. section 13.76.080 (registration) for all covered units on the property (compliance means that all registration fees are paid and all registration forms are completed and filed), and with B.M.C. section 13.76.110 (lawful rent levels).
  • The landlord must allege substantial compliance with the implied warranty of habitability (no serious repair problems) for all covered units on the property.

The landlord must file with the Rent Stabilization Board a copy of the notice to quit or notice of termination, and of the summons and complaint, within ten days of the date they are given to the tenant(s).

Good Cause Required

The “good cause for eviction” sections of the Ordinance (B.M.C. section 13.76.130) apply to most rental units in Berkeley, including some units that are exempt from registration with the Board or from rent ceiling controls, such as: those constructed after 1980, single-family residences described in Regulation 508, units owned or leased by the Berkeley Housing Authority, and units rented to federal Section 8 participants.

“Good cause” is any one of the following:

  1. The tenant fails to pay rent that the landlord is legally entitled to, after receiving a notice to pay or move out within a period of at least three days (also known as a 3-day Notice to Pay or Quit).
  2. After a written request to stop the violation, the tenant continues to violate a material term of the original rental agreement or a new provision that was mutually and voluntarily agreed to. However, a landlord may not evict a tenant for violating a subletting prohibition if: 1) the landlord has unreasonably withheld consent to the subtenancy; 2) the tenant still lives in the unit; and 3) the number of total occupants does not exceed the number originally allowed by the rental agreement or the Board’s regulations, whichever is greater.
  3. The tenant willfully causes or allows substantial damage to the rental unit to occur, and refuses to pay or make adequate repairs after being asked in writing to do so.
  4. When a fixed-term lease expires, the tenant refuses to sign a new lease that is substantially identical to the expired one.
  5. The tenant continues to disturb the peace and quiet of other occupants after receiving a written request to stop.
  6. After receiving a written request to stop denying entry, the tenant refuses to allow the landlord access to the rental unit during normal business hours to show, inspect or make repairs on the unit after receiving at least 24 hours’ written notice.
  7. The landlord wants to bring the unit into compliance with the Housing Code or other law by making substantial repairs that cannot safely be made while the tenant lives there. (See additional requirements below.)
  8. The landlord has received a permit to demolish the unit.
  9. The owner of at least a 50 percent recorded interest in the property, or such an owner’s spouse, parent, or child, wishes to occupy the rental unit as their principal residence and there is or was, for 90 days before the tenant was given notice to vacate, no vacant comparable unit available on any property owned by the landlord in Berkeley. (See additional conditions in the Owner move-in section below.)
  10. The owner or lessor wishes to move back into a rented or sub-leased unit as permitted in the rental agreement with the current tenant or subtenant.
  11. The tenant refuses to vacate temporary housing offered by the landlord after repairs to the tenant’s original unit are finished.
  12. The tenant engages in unlawful activity on the premises.

Note: The sale of property, the expiration of a rental agreement, or a change in the federal Section 8 status of a unit are not considered “good cause” for eviction.

Some events that are not good cause:

Foreclosure. If a rental property in Berkeley is foreclosed upon, it rarely means that the tenant must move. Despite what lenders or new owners may say, Berkeley tenants are entitled to remain in the property unless there is good cause to evict. Foreclosure is not one of the good causes listed in the Rent Ordinance. Recently passed Federal and state laws provide greater tenant protections and address abuses by foreclosing lenders. Contact a Rent Board housing counselor for the latest information about rights of tenants in properties facing foreclosure or recently foreclosed upon.

Condo conversions. Tenants in properties that are converted to condominiums receive substantial protections under the City’s ordinance governing those conversions. (B.M.C. Chapter 21.28.) Most significantly, the good cause for eviction provisions of the Rent Ordinance will apply, so most tenants in converted properties will not be required to move. An owner planning to convert a rental unit to a condominium must notify the tenant of their rights to: 1) continue to rent the unit, even if converted, and 2) purchase the unit, if they wish.

Relocation Ordinance. Tenants who are given a notice to vacate so the landlord can perform substantial repairs are entitled to payments under the City’s Relocation Ordinance (B.M.C. Chapter 13.84) and have the right to re-occupy the rental unit once the repairs are completed. The owner must first obtain all necessary permits for the work. Rent Board mediation is provided if the landlord and tenant cannot agree on the need for relocation. The amount of payments depends on how long the repairs take.

Owner move-in. The Ordinance bans evictions for owner or relative move-in where either: (1) the tenant has lived on the property for five or more years and the landlord has a 10% or greater ownership interest in 5 or more residential units in Berkeley, or (2) the tenant is at least 60 years old or disabled, has lived on the property for 5 or more years, and the landlord has a 10% or greater ownership interest in 4 residential units in Berkeley. If all the landlord’s units are limited by the above, an eviction for the owner or relative to move in is permitted where: the landlord has owned the property for 5 years and is at least 60 years old or disabled, or the landlord’s relative is at least 60 years old or disabled.

The landlord must include, in the notice of termination, information about all Berkeley residential properties in which he or she has a 10% or greater ownership interest, and must always offer the tenant any unit that he or she owns in Berkeley that becomes available before the tenant vacates his or her unit.

The landlord must provide a $4,500 relocation payment to any low-income household with at least one tenant who has resided in the unit for one year or more. To be eligible for this payment, the tenant must, within 30 days of receiving the notice of termination of the tenancy, notify the landlord and the Rent Board in writing that he or she is claiming low-income tenant status for the household.

The landlord must give the terminated tenant the right to re-occupy the unit when the landlord or his or her relative moves out. Also, when the landlord or his or her relative moves out, the rent for the next tenant will be limited to the old rent ceiling plus AGAs.

Finally, if a landlord cancels a notice of termination or stops eviction proceedings for owner or relative move-in, and the tenant vacates within one year of the notice date, it is presumed that the tenancy terminated because of the notice, and the rent for the next tenancy will be limited to the old rent ceiling plus AGAs. (Regulation 1016.)

Ellis Act. This state law allows landlords to evict tenants in order to remove units from the rental housing market. (Government Code sections 7060-7060.7. A local ordinance, Berkeley Municipal Code Chapter 13.77, establishes specific procedures under the state law.) Generally, an owner must withdraw all units on a property to evict under the Ellis Act. Tenants must be given at least 120 days’ notice, and the notice period is one year for tenants who are disabled or 62 years of age or older. Tenants evicted under Ellis are entitled to $8,700 in relocation monies divided equally among all tenants in the unit, with an additional $5,000 to households whose tenancies began before January 1, 1999. Low-income, elderly and disabled tenants, and households with minor children are entitled to an additional $2,500. Displaced tenants may request the opportunity to re-occupy the unit, on substantially the same terms as during their former tenancy, if it is re-rented within ten years of the withdrawal date.

When a landlord sends a notice of intent to withdraw rental units from the market under the Ellis Act, the rents will be regulated for the next five years (even if the landlord later cancels the Ellis notice). During this time, the rent ceiling may be increased only as authorized by the Board, and none of the rents may be increased to market level following a vacancy.

Wrongful eviction. If a landlord evicts a tenant to perform repairs or demolish the property, and the repair or demolition is not begun within two months, or if the landlord’s claim was false or in bad faith, the tenant may sue to move back into the unit and be compensated for damages. If the tenant can prove the landlord's conduct was willful, the tenant can recover the greater of $750 or three times the actual damages. (B.M.C. section 13.76.150 B.)

Bad faith is presumed where a landlord evicts for owner or relative move-in, and the owner or relative does not move in within three months of the tenant’s vacancy, or does not occupy the unit as a principal residence for at least 36 continuous months. (B.M.C. section 13.76.130 A.9.g.) Under state law, a tenant who can show an owner’s fraudulent intent not to reside in the property for at least six months may receive additional compensation. (Civil Code section 1947.10.) If a unit that was withdrawn under the Ellis Act is re-rented within two years of the withdrawal date, displaced tenants may sue for damages resulting from their displacement. If the re-rental occurs more than two, but less than ten years from the withdrawal date, displaced tenants may sue for damages if the owner failed to offer them the chance to re-rent. (B.M.C. section 13.77.040.)

Improper Landlord Actions

A landlord may not retaliate against a tenant for exercising his or her rights under the Rent Ordinance or other laws. “Retaliation” can take the form of attempting to evict the tenant, increasing rent, refusing to renew a lease, or threatening to do any of those things. Tenant actions protected by law include reporting housing code violations or filing a petition with the Rent Board. A landlord’s retaliatory motive can be a defense to an eviction action.

“Self-help” evictions – that is, forcing a tenant out of a unit without a court order – are prohibited in California. It is illegal for a landlord to:

  • remove exterior doors or windows,
  • change the locks to prevent a tenant from entering the rental unit,
  • remove a tenant’s personal property from the rental unit, or
  • cut off utilities with the intent to deny the tenant use of the unit.

A landlord may not try to force a tenant to move out through theft, fraud or extortion, or by using, or threatening to use, force, threats, or menacing conduct that interferes with the tenant’s right to quiet enjoyment of the premises. However, a warning given in good faith that a tenant’s conduct violates or may violate the lease or applicable laws, or an explanation of the lease terms or applicable law, is permissible.

A landlord may not demand or collect rent, or issue a no- tice of rent increase, or issue a three-day notice to pay rent or quit if all of the following are true:

  • The unit substantially lacks any of the standards of a habitable unit listed in Civil Code section 1941.1, contains lead hazards, or is deemed and declared substandard because a condition listed in Health and Safety Code section 17920.3 (e.g., lack of sanitation, pest infestation) endangers the life, health, property, safety, or welfare of the public or the unit’s occupants;
  • The landlord has received a written citation directing him or her to abate the nuisance or repair the substandard conditions;
  • The conditions have existed for more than 35 days after issuance of the citation and there is no good cause for the delay in repairing them; and
  • The conditions were not caused by the tenant.

A tenant who is being evicted may assert, as a defense, that the landlord failed to provide a tenantable unit or breached the implied warranty of habitability. In addition, a landlord who tries to evict a tenant for nonpayment of rent where all of the above conditions exist is liable to the tenant for attorney’s fees and costs.

A tenant who is illegally evicted may sue to regain possession of the unit and for damages. A tenant should contact an attorney or tenants’ rights group if the landlord takes retaliatory action or attempts to force him/her out without going through the eviction process.

Download a PDF of the Berkeley Eviction Process and Chronology of a Typical Eviction Proceeding  (two-page document intended for side-by-side viewing)

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