Q & A
Answers to Common Questions
Rental units on a two unit property where one unit was, on December 31, 1979, and is, currently, the principal residence of at least a 50 percent owner of record, are EXEMPT from rent stabilization AND good cause for eviction requirements, and need not be registered with the rent board. (See Regulation 13.76.050)
Needless to say, people have sometimes gone to great lengths researching the status of their property at the end of 1979! The quickest and easiest way to do this is to contact BPOA. We have the property tax records for 1979. If your property address notes in 1979 that the owner of record took a homeowners exemption on their taxes, then your property could be considered a Golden Duplex. Email us or call us for more information.
"Rent Control" means a couple of different things in Berkeley. Your unit may be exempt from some or all provisions of the rent control Ordinance.
The following units are exempt from rent stabilization requirements (and therefore registration), but they are NOT exempt from the security deposit and good cause eviction requirements:
- Rental units owned by a government agency.
- Units leased by the Berkeley Housing Authority, or to tenants assisted under the Section 8 or the Shelter Plus Care Programs.
- Rental units constructed after June 30, 1980, provided such units were not created by rehabilitation or conversion.
- Single family residences first subject to the Rent Ordinance on or after January 1, 1996.
- Single family residences re-rented on or after January 1, 1996, unless: (1) the landlord evicted the prior tenant for owner-occupancy or by changing the terms of tenancy; (2) the landlord receives a financial contribution from a public entity in exchange for reducing the rent; or (3) the unit contains serious, cited code violations that have been outstanding for at least 6 months. (See Regulation 508.)
The following properties are EXEMPT from BOTH rent stabilization and good cause for eviction requirements.
- Units rented primarily to transient guests for less than 14 consecutive days and subject to the hotel tax are subject to the Short Term Rental oridinance and not the Rent Stablization Ordinance.
- Accessory Dwelling Unit (ADU) parcels in which the owner of record of at least 50% lives in one of the units as their primary residence. There are certain AUDs that are subject to the Rent Stablization Ordinance and it is important to check those laws before proceeding with renting your ADU.
- Non-profit cooperative housing owned and controlled by a majority of the residents.
- Rental units in any hospital, skilled nursing facility, health facility, asylum, or non-profit home for the aged.
- Rental units on a two unit property where one unit was, on December 31, 1979, and one unit is, currently, the principal residence of a 50 percent owner of record. (aka Golden Duplex)
- Rental units where the tenant shares kitchen and/or bath facilities with an owner of record who holds least a 50 percent interest, provided the owner maintains his or her principal residence on the property.
- Units rented by non-profit accredited institutions of higher learning to tenants who are faculty, staff or students of the institution, or of a member school of the Graduate Theological Union, provided that the institution owned the unit as of January 1, 1988.
For more information, see Regulation 13.76.050.
All units in Berkeley (regardless of whether they are subject to the Rent Stablization Ordinance or not) are required to annually perform a Rental Housing Safety Inspection (otherwise known as Schedule A). You are also required to pay an annual fee to the Rental Housing Safety Program for the cost of your self certification.
Previously, there was a gas heater inspection requirement (also known as Schedule B), but that has since been discontinued due to the inception of requirements around carbon monoxide detectors.
The City of Berkeley Residential Housing Safety Program office may be reached at (510) 981-5444.
Q: My lessee took in two roommates. They left and my lessee took on two replacements who now also want to leave. The problem is that the roommates say they contributed to the security deposit and that they want their share back. The place is in a mess, which the roommates say was there when they arrived. What do I do?
Stay out of it! The cardinal rule in a multi-tenant situation is to name only one person as the lessee, and to accept money from only that one person. While the lease may allow the lessee to take in roommates (or you may be required by Berkeley law to let him/her to that), you want to look to only one person for payment of deposits, and you want to be responsible to only one person when the tenancy ends. An incidental benefit from following this cardinal rule is that once your named lessee moves, you may reset the rent to market for the stay-behinds.
And before you let your lessee into the place be sure there has been a pre-occupancy inspection verifying the presence (or absence) of any damages (or pre-existing �messes�) that might give rise to a dispute over the deposit. This should be acknowledged in the lease.
Q: I moved into a house with three other roommates two years ago. We each paid one roommate $500 for the security deposit, and he, in turn, paid the landlord $2000. Now I am moving out and I want my security deposit back, but our landlord says he doesn't have to return it until my roommates move out. Is that correct?
Yes. According to Rent Board Regulation 706, a landlord is not required to refund any portion of a security deposit until he has recovered possession of the unit, i.e., until the unit is vacant. Because there is no telling when the unit will be vacant, especially if roommates are replaced as each one moves out, you should ask for your share of the security deposit from the remaining tenants or from your replacement, if there is one.
For general information on renting to roommates, and structuring the lease agreements, the member should (1) read the section on "replacing roommates" in the rent board's Guide to Rent Control (on line), (2) take a look at Landlord/Tenant Law 101 Room Mates on this website.
Members can access our COVID-19 Guidance Document, expanded FAQ and Lease Forms by logging into their member account and choosing Forms Library.
What is A.B. 3088 & S.B. 91?
These are the state's Eviction Moratorium and Rent Relief laws. They are meant to prevent evictions for those who cannot pay rent due to COVID-19. Read our FAQ document to better understand S.B. 91 which replaces AB 3088.
What if my tenant says they can't pay rent because of COVID-19?
If a tenant indicates they cannot pay rent due to COVID-19, then they may not be evicted for nonpayment of rent, as long as the local state of emergency is in effect. A.B. 3088 requires that in order for a tenant not to be evicted for nonpayment of rent, they must pay at least 25% of the rent between September 1 and January 31. It must be paid in full by January 31 in order not to be evicted for nonpayment. The remaining balance of rent becomes consumer debt which can be recovered by the owner in small claims court. For more specific guidance on how to manage discussing non-payment of rent, log into our Forms Library and choose "COVID-19".
We have released guidance, expanded FAQs and forms for members only. These can be used to help you through the scenario of nonpayment of rent. Please understand that these are highly unusual circumstances and we are working with a multitude of resources to provide you with the best guidance possible, but there is no subsitute for advice from your attorney or rental property consultant. This includes an expanded FAQ, the state's required Financial Hardship Declaration Form and other guiding documentation. These forms are only available to members.
What if my tenant wants to break their lease early?
We recognize that this may be a very real possibility for some owners, especially if you rent to students. With classes at the University being moved to online forums only, some tenants may need to make different plans for their living situation. Leases are contracts, therefore it is up to you on a case-by-case basis to decide what to do. Our FAQ in the Forms Library provides some additional thoughts on lease breaks. NOTE: you may no longer charge or apply an automatic lease break fee.
What if I can't pay my mortgage or expenses on the rental housing? Are there any resources for me?
Our industry partners are working at both the state and Federal level to provide relief for mortgage payments and property taxes. We still maintain that the best way to stem the potential tidal wave of trouble is for tenants to be given financial assistance to pay their rent. However, if you have an income loss because of your own job, there may be resources for you. Check the Employment Development Department of California or the Governor's website for more details.
Is it true I can't evict someone during the COVID-19 crisis?
The City Council has passed a moratorium on evictions on March 17. It prohibits you from serving a 3-day notice for nonpayment of rent or serving an eviction for an Owner Move In during the course of the state of emergency. It's important to note that the moratorium does not absolve a tenant's responsiblity to pay the rent once the moratorium is lifted, however you will never be able to evict the tenant for nonpayment of deferred rent due to COVID-19. It will be your responsibility (and choice) to determine how you manage a tenant's inability to pay the rent.
Does my tenant have to stay in their unit during Berkeley's shelter in place? Can someone move in/move out of my unit?
The City of Berkeley's Health Official is recommending that citizens shelter in their homes and only move about for "essential business" only. We know there are a lot of questions about what constitutes "essential business" and whether moving in or out of a unit is permitted. While the order does not speak specifically to move ins/outs, we recommend using caution during this time. The City of Berkeley's FAQ document states that the intent of the order is to "ensure that people remain in their residences and minimize social interactions outside of their immediate family unit." However, we recognize that some people may need to move out to be with family or if they are a student, to move back home.
Can I have open houses for vacant or available units during this time?
Expanded guidance by the state have allowed for the showing of units in very limited instances. You must take precautions to prevent the spread of COVID-19 while showing the unit including limiting the unit to showing only to one prospective tenant at a time and the wearing of protective gear. This is a perfect time to learn how to utilize technologies that allow for "virtual showings" if you haven't already done so! Find more specific guidance on showings here.
How do I handle repairs during the shelter in place?
We recommend that your carefully consider each repair during the shelter in place. Emergency repairs are always recommended to be done, especially ones of health and safety. Others you may choose to push off until there is less risk of exposure to the Coronavirus. Be sure to communicate clearly to your tenants how you are making decisions on what repairs to do. You are still responsible for maintaining safe and habitable living conditions, and any repair request that involves issues of electricity, plumbing, heat or structural safety must continue to be responded to in a timely manner. We recommend all vendors, tradespeople or landlords wear protective gear at all time when working in and around the unit.
What if my tenant won't allow me or a repair person in the unit because they are scared of catching the virus?
First and foremost, it is important to recognize that managing people's fears during a pandemic or crisis is very important. There may be some tenants who may be very scared about the possibility of getting COVID-19. That fear must be balanced with making sure that issues of safety and health are being taken care of. If you have a repair that is an issue of health and safety, try to work with your tenant to assure them you are only doing what is highly necessary. See if the repair person is willing to wear fully-protective gear to help minimize their exposure to the tenants. If all else fails with the tenant, make sure to carefully document their refusal to allow entry, in case there is a question about the habitability of the unit in the future. At the end of the day, a tenant does have a right to refuse entry out of fear of exposure to the virus.
What if my rental housing has a common area space (i.e. patio, laundry room, storage area)? What responsibility do I have to disenfecting these areas?
Because we are in unknown territory with the pandemic, there are no specific requirements -- legal or otherwise. But it is recommended by the National Apartment Association and its industry partners, that rental housing providers step up their cleaning practices to make sure that they are properly (and more regularly) disenfecting common areas. This means wiping down high-touch areas (laundry machines, door handles, etc.) on a regular basis. We also recommend reaching out to your tenants and providing them with guidance on how best to keep both their units and common areas as clean as possible during this time of pandemic. You can also refer to some of the guidance provided by the National Apartment Association, listed in the Resources section below.
What if I believe my tenant has been exposed to, or has COVID-19?
It's very important to remember that whatever illness anyone has, there are privacy laws that limit what you may divulge to others, or what you may request to know from someone. If a tenant notifies you that they have been exposed, or that they have tested positive, you will need to keep that person's identity (and any supporting documentation) in confidence. If you suspect that a tenant has been exposed to the virus and/or has the virus, please contact the Alameda County Public Health Department to receive more specific guidance. They can provide advice on how to manage notifying tenants of the property, that someone in the building has or has been exposed to COVID-19.
Webinar: Coronavirus Outbreak: What Real Estate Managers Need to Know
Guidance on how to address the spread of COVID-19 and developing policies and procedures around the virus. Click here to listen to the webinar.
Frequently Asked Questions: Resident/Tenant Relationships, Business Operations & Cleaning
Answer to some of the questions about COVID-19 in rental housing. Click here for access.
Additional information from the CDC on cleaning recommendations for common areas can be found here.
Employees, Workplace Policies, Communications to Tenants & More
This guide provides some information about how to manage in a time of a pandemic, including what to do if a tenant has a known exposure to COVID-19. Click here for the "Pandemic Guide for Real Estate Managers."
City of Berkeley's Shelter in Place Frequently Asked Questions