Almost anyone can be a “tenant” for purposes of the law.  This includes your mother in law in the unit downstairs and the nice European family with which you do a house trade.  Your rights and theirs are determined by (a) the laws of Berkeley,  (b) the laws of California; and by (c) your lease agreement.  This article focuses on the lease.

Leases more often protect tenants than landlords. That doesn’t mean you shouldn’t require one:  on the contrary, you need a lease even where the tenancy is “month to month”.  There are just too many things, which, absent a lease, will be decided against you if you get into a dispute with the tenant.  Also, there is the fact that Berkeley’s “just cause” eviction rules mean that even a month-to-month tenancy may end up lasting for years.  An indefinite tenancy, without a clear, written understanding about all of the issues that may come up, is a recipe for tragedy.

 Leases should always be signed by the tenant, and any deposit paid, prior to the tenant’s moving in (otherwise a court may say that the agreement was imposed by duress).  The number of permitted occupants should be specified, and the actual lessee or lessees (as compared to other permitted occupants) identified.  Note here that while it is may be a good idea in other jurisdictions to name all resident adults as tenants (so that you may look to any one of them to pay you in the event of a default), this is not necessarily the case in Berkeley, where the presence of multiple named tenants may mean that years go by before the last tenant leaves and you are free to adjust the rent to market levels.

The lease must identify the premises, and should be specific about allowed uses of the premises and about areas which the tenant has no right to occupy (e.g. may the tenant grow vegetables in your garden?  Leave his dog in the common patio? Store his bike in the garage? May he run a private business out of his unit?).   The lease should specify the rent and deposit amounts, and the manner of payment, and should be specific about metered and/or unmetered utilities. The term of the lease should be stated (though evictions for no other reason than expiration of the lease term are difficult in California and virtually impossible in Berkeley).  Pets, roommates, overnight guests, all-night parties, noise restrictions, lack (or availability) of site parking –anything that is a potential concern to you—should be covered. Potential hazards on the property should be revealed.

Berkeley-specific hint:  where you provide extras, like furniture, laundry facilities, parking, and storage, the terms might better be put in a separate agreement insulated from the jurisdiction of the Rent Board.  The same is true of deals which allow the tenant to perform gardening or maintenance services on the property:  while you may intend that the amounts earned should be an offset against rent, it is far better it keep your obligation to pay for personal services separate from the tenant’s obligation to pay rent.

There are certain things a lease cannot do.  You may not require a tenant to waive his/her rights under the rent control laws (that probably invalidates annual COL adjustments in residential lease forms).  You may not ask a tenant to waive his/her right to a habitable unit, or to basic utilities (all residential units must have phone jacks, for example).  Nor may you make a tenant promise not to sue you if he/she slips on a crack in the sidewalk or gets bitten by another tenant’s dog (you should carry insurance for such things).  The amount and treatment of deposits is controlled by California and Berkeley law, and you may not impose further requirements by lease.  Forcing a tenant to agree to arbitration (in lieu of going to the Rent Board or to court) is also a no-no.

Attorneys fee clauses are controversial:  under California law, a provision giving a landlord a right to recover attorneys’ fees is construed automatically to include an equivalent right for the tenant if he/she prevails in court. Given that it is a whole lot easier for a losing tenant to skip town without paying you, than it would be for you to vanish in the event you lose, and given the added fact that it is extremely difficult to prevail against a tenant in Berkeley’s political climate, we think the better course in most cases is to have no attorneys fee provision in your rental agreements.

But on all the other issues, a well-drawn lease may be your best friend. In this regard you may wish to consider the forms available on the BPOA website, and/or other landlord-friendly locations.  Where to find out more on the law?  The RentBoard  regs are at  http://www.ci.berkeley.ca.us/rent/ordregs/regs/regcov.html   California law is at California Civil Code Sections 1940 et seq. which may be found at http://wwwleginfo.ca.gov/calaw.html