Exercising The Auto-Renewal Clause in the BPOA Lease

Including an auto-renewal clause in a Berkeley lease is legal, but only if you follow very specific rules under Berkeley Municipal Code Chapter 13.79. Many landlords don’t realize that improper use of an auto-renewal clause can lead to civil penalties and make the provision unenforceable.

The BPOA lease includes an auto-renewal clause that members may elect to exercise. This clause allows the lease to automatically renew for another fixed term, typically 12 months, unless the tenant provides written notice that they do not wish to renew.

In practice, this means:

• If the tenant gives no notice, the lease renews for another full term.

• If the tenant declines to renew, but does not give notice to vacate, the lease transitions to month-to-month.

• If the tenant gives notice to vacate, the tenancy ends at the end of the term.

There are several reasons a landlord might choose to exercise the auto-renewal clause. It can provide predictability for both parties by locking in another year-long term unless the tenant actively opts out. It can reduce turnover and vacancy risk by discouraging casual mid-year move-outs. It may also streamline management by avoiding the need to re-sign leases every year. Most importantly, it sets clear expectations: unless the tenant speaks up by a specific date, the lease continues for another term under the same conditions.

Under Berkeley Municipal Code Chapter 13.79, landlords must meet the following obligations when exercising an auto-renewal clause:

1. Provide the tenant with a written “intent not to renew” form at lease signing. (BMC § 13.79.010) This form must be provided when the lease is executed. Tenants may use this form or submit their notice in writing in another way.

2. Honor the tenant’s right to opt out up to 30 days before the lease expires. (BMC § 13.79.020) Tenants can opt out of auto-renewal at any time prior to 30 days before the lease ends. If they miss the deadline, the lease renews automatically, unless the landlord failed to meet other requirements.

3. Notify the Rent Board that the lease contains an auto-renewal clause. (BMC § 13.79.030) For rent-controlled (registered) units, this must be done at the time of filing the Vacancy Registration Form. For exempt units, notice must be submitted to the Rent Board within 20 days of lease execution.

4. Reissue the opt-out form before each renewal cycle. Even though not stated explicitly in the ordinance, providing the opt-out form again before each subsequent automatic renewal is best understood as required by law in spirit and in practice. Otherwise, the tenant would have no meaningful way to opt out, and the clause could be challenged.

Best practice: Provide the opt-out form 45 to 60 days before the lease is set to auto-renew. This gives the tenant time to consider their plans and respond before the 30-day deadline.

Under BMC § 13.79.040, if a landlord fails to comply:

• The auto-renewal clause may be unenforceable

• The tenancy may default to month-to-month

• The tenant (or City) may pursue civil penalties, including damages, attorney’s fees, and other costs of enforcement

As of December 2024, Berkeley’s Rent Ordinance was amended by Measure BB, which eliminated “refusal to sign a lease” as a valid ground for eviction. So even if a tenant opts out of auto-renewal and doesn’t leave, the tenancy simply becomes month-to-month, and you cannot evict for failing to renew.

If you are using the BPOA lease and choose to exercise the auto-renewal clause, be sure to fulfill all required steps, including proper delivery of the opt-out form at lease signing and again before each automatic renewal. When used properly, the clause can simplify lease management. When used incorrectly, it can expose you to significant legal risk.