Rent Stabilization Board
Rent Stabilization Board

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

SUBLETTING AND REPLACING ROOMMATES

Subletting Generally

To sublet or sublease is to rent part of the unit to another person for all or part of the lease term, or to rent all of the unit to another for a portion of the lease term. Thus, a sublet exists where the original (or “master”) tenant takes in a roommate whose name is not on the lease and who pays rent to the master tenant, or where the master tenant rents the unit to another during the master tenant’s absence. A master tenant remains obligated to the landlord to comply with the lease requirements. A master tenant who takes in a roommate may not charge more than an amount substantially proportional to the space occupied by the subtenant (Regulation 1003(C)), and a master tenant subletting the entire premises may not charge a subtenant more than the rent the master must pay the landlord (Regulation 1003(B)).

A tenant may sublet a unit if the lease does not specifically prohibit it. If the lease says that subletting is allowed subject to the landlord’s approval, the landlord may refuse consent only when he or she has a reasonable objection to the proposed subtenant. The proposed subtenant’s financial responsibility or rental history are examples of reasonable objections.

Caution: Where a lease specifically prohibits it, a non-occupying master tenant’s subletting of the entire premises may be a violation of the lease and grounds for eviction. If you have questions about whether a lease allows this type of subletting, you should seek legal advice.

Replacement Tenants

A landlord generally must let an original tenant replace a roommate who was allowed under the lease. If the lease requires the landlord’s approval of a sublet, the landlord may object to a replacement tenant only if the landlord has a reasonable basis to do so. If a landlord unreasonably objects to replacing a vacating roommate, the remaining tenant may petition the Board for a rent reduction. (See Regulation 1270(C).) A landlord does not have good cause to evict a tenant who replaces a roommate without the landlord’s consent if the landlord unreasonably withholds consent to a subtenant, the tenant remains in the unit, and the number of occupants in the unit does not exceed the number originally allowed by the rental agreement, or the Board’s regulations, whichever is greater. (B.M.C. section 13.76.130.A.2.) A landlord who forces remaining tenants to move out by refusing to allow a replacement roommate is not entitled to set an initial rent for the next tenancy, because the vacancy was not voluntary.

Partial Turnovers in Tenancies — When a Vacancy Increase May Be Imposed

A common question is when may a landlord set a new initial rent under Costa-Hawkins where several tenants rent a unit together, who are gradually replaced over time by new roommates, never leaving the unit entirely vacant. New roommates are considered subtenants of the original occupants as long as they do not sign a lease or rental agreement with the landlord, and the landlord may increase the rent when the unit is occupied only by subtenants who did not live there before 1996. Thus, a landlord may set a new initial rent by giving proper written notice if: (1) there has been a complete turnover of original occupants; (2) none of the remaining occupants lawfully resided in the unit before January 1, 1996; (3) none of the remaining occupants has signed a lease or rental agreement with the landlord; and (4) the landlord has not accepted rent after receiving written notice from the last original occupant that he or she has moved out or will be moving out permanently. (Regulation 1013(O).) (If the subtenants hide the fact that the last original occupant has moved out permanently, the landlord’s acceptance of rent does not preclude the landlord from implementing a vacancy increase.) The landlord can defer a vacancy rent increase for up to six months after receiving written notice of the last original occupant’s departure, by agreeing in writing with the remaining tenants to do so.

When the landlord lawfully sets a new initial rent, the tenants at that time become a new set of “original” occupants to which the same rules regarding a vacancy increase will apply. The landlord should file a Vacancy Registration form to report that new initial rent.

Under Regulation 1013(O)(5), when a landlord rents a unit and places only one tenant’s name on the lease, but authorizes more than one tenant to occupy the unit, all tenants who occupy the unit within one month, with the landlord’s express or implied permission, are considered “original occupants.” This covers situations where a landlord accepts a group of new tenants, but has only one of them sign the lease; and where a landlord has a lease with a single master tenant, who is allowed to sublet to several roommates. In either case, the landlord cannot raise the rent simply because the signing tenant or master tenant moves out permanently.

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Rent Stabilization Board, 2125 Milvia Street, Berkeley, CA 94704
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