1271. Overcharges and Other Violations
(A) Overcharges. If the landlord has received rent in violation of the Ordinance, on or after June 29, 1980, the landlord shall be ordered to refund the overcharge. Any overcharge refund shall be paid to the person or persons overcharged, except as provided in Subsection (B) below. For purposes of this Regulation, any receipt or retention of rent, including security deposits and interest earned on security deposits, in violation of any order, rule or regulation of the Board or any other applicable law shall be deemed to be an overcharge.
(B) Overcharges from former Tenants. If any of the rent overcharge was received from former tenant(s), the landlord shall make reasonable efforts to find the former tenant(s) and refund the overcharge. The landlord shall notify the Board in writing of the nature, extent, and result of those efforts within 60 days of the overcharge refund order.
If the landlord does not refund any past overcharge(s) to any former tenant(s) within 60 days, or has made reasonable but unsuccessful efforts to locate the former tenant(s), the landlord shall pay the overcharge(s) to the Rent Stabilization Board to be held in trust for the former tenants for one year. Each year, no later than the second meeting in March, staff shall provide the Rent Board with an accounting of any unclaimed funds, following which, the Board, by resolution, shall designate a program of the City of Berkeley that benefits low- and/or moderate-income tenants to which the unclaimed funds shall be transferred.
(C) Petition Fee. If the landlord has received and retained rent in violation of the Ordinance, or has failed to comply with the Ordinance or any rule, regulation, or order of the Board, for any unit in a property for which he/she has filed an individual rent adjustment petition, and such failure or violation continues at the time of the filing of the petition, then the landlord shall not be entitled to recover any part of the petition fees from the tenants affected by the petition, notwithstanding the provisions of Regulation 1247.
(D) Other Violations. If the landlord has failed to comply with the Ordinance or any rule or regulation of the Board or in any way charges unlawful rent, the hearing examiner may make an appropriate order for compliance or other appropriate relief.
(E) Limitation on Liability for the Refund of Overcharges.
(1) Except as provided in subsection (2), no order for the refund of rent overcharges shall require the repayment of overcharges that were actually received by the landlord more than three years prior to the date upon which the Individual Rent Adjustment petition is filed.
(2) The three year limitation period shall not apply and the landlord shall be ordered to refund to the tenant(s) of the affected unit(s) that portion of the rent payments made by such tenant(s) that have been illegally retained by the landlord from the date, subsequent to June 28, 1980, of which the tenant(s) first paid excess rent, upon proof of any of the following:
(a) the landlord willfully failed to register the affected property, or
(b) the landlord willfully provided false or inaccurate information on rent registration forms filed with the Board and that the tenant(s) were thereby induced to pay excess rent in reliance upon said information, or
(c) the landlord, through threats of eviction, physical violence, coercive actions, or intentional misrepresentation on which the tenant reasonably relied, prevented a more timely filing of the petition.
(d) the rent overcharge resulted from the landlord's failure to annually refund interest earned on the tenant's security deposit.
(3) If landlord has willfully failed to register the affected property, the three year limitations period shall commence to run on the date upon which the landlord completes all required registration forms for the affected property.
(4) Within 21 days of recovering full possession of a rental unit, state law requires a landlord to either return to the tenant the full security deposit or provide the tenant with an itemized accounting of how any nonrefunded portion of the deposit was used. Therefore, unless otherwise provided in the lease or rental agreement, a landlord shall not be liable under this Section for the refund of a security deposit until 22 days after full possession of the rental unit has been recovered by the landlord.
(F) Supporting documentation.
For tenant petitions under this Regulation, the documentary evidence attached to the petition shall include any copies of canceled checks, rent receipts or other documentary evidence of the claimed overcharge. If no such documentary evidence is in the possession of the tenant, the tenant shall state on the petition that he or she does not have documentary evidence of the overcharge and set forth the factual basis for the claim of overcharge. Where the basis of any overcharge is ineligibility for Annual General Adjustments due to violation of housing codes, the tenant shall attach documentation indicating that the unit was in violation of the warranty of habitability on January 1 of the applicable year. Such documentation may include a copy of an inspection report issued by the Department of Codes and Inspection of the City of Berkeley.
[Amended April 11, 1997; July 9, 1999; November 5, 1999 change to (A) and addition of (E)(2)(a)(d); amended January 7, 2002; and April 4, 2005.]