Proceed With Caution
Evictions are governed primarily by state law, but the Rent Stabilization Ordinance imposes additional requirements. Evictions are complex proceedings; a landlord must follow state and local law to the letter to successfully evict a tenant. Furthermore, a landlord’s failure to follow certain procedures may entitle a tenant to substantial damages. Rent Stabilization Board counselors are available to help parties understand their rights and responsibilities, but they do not provide legal advice to landlords or tenants regarding eviction proceedings in court. Landlords and tenants are strongly urged to obtain legal advice before filing an eviction action or contesting an eviction attempt. Consult the Other Sources page on our website for referrals and publications.
Eviction Checklist - Local Requirements
The Ordinance imposes the following requirements (see B.M.C. section 13.76.130 B, C and D) in addition to state law procedures for evictions:
In the notice to quit or notice of termination, and in the summons and complaint (the lawsuit to evict):
The landlord must specify one or more of the good causes for eviction listed below. (Regulation 1310)
The landlord must allege compliance with B.M.C. section 13.76.080 (registration) for all covered units on the property (compliance means that all registration fees are paid and all registration forms are completed and filed), and with B.M.C. section 13.76.110 (lawful rent levels). (Regulation 1311)
The landlord must allege substantial compliance with the implied warranty of habitability (no serious repair problems) for all covered units on the property.
The landlord must file with the Rent Stabilization Board a copy of the notice to quit or notice of termination, and of the summons and complaint, within ten days of the date they are given to the tenant(s). (Regulation 1312)
Good Cause Required
The “good cause for eviction” provisions of the Ordinance (B.M.C. section 13.76.130) apply to most rental units in Berkeley, including some units that are exempt from registration with the Board or from rent ceiling controls, such as: those constructed after 1980, single-family residences described in Regulation 508, units owned or leased by the Berkeley Housing Authority, and units rented to federal Section 8 participants.
“Good cause” is any one of the following:
1. The tenant fails to pay rent to which the landlord is legally entitled, after receiving a notice to pay or move out within a period not less than three days (also known as a 3-day Notice to Pay or Quit).
2. After a written request to stop the violation, the tenant continues to violate a material term of the original rental agreement or a new provision that was mutually and voluntarily agreed to. However, a landlord may not evict a tenant for violating a subletting prohibition if: (1) the landlord has unreasonably withheld consent to the subtenancy; (2) the tenant still lives in the unit; and (3) the number of total occupants does not exceed the number originally allowed by the rental agreement or the Board's regulations, whichever is greater.
3. The tenant willfully causes or allows substantial damage to the rental unit to occur, and refuses to pay or make sufficient repairs after being asked in writing to do so.
4. On the expiration of a fixed term lease, the tenant refuses to sign a new lease that is substantially identical to the expired one.
5. The tenant continues to disturb the peace and quiet of other occupants after receiving a written request to stop.
6. The tenant, after receiving a written request to cease, refuses to allow the landlord access to the rental unit during normal business hours to show, inspect or make repairs on the unit after receiving at least 24 hours' written notice.
7. The landlord must bring the unit into compliance with the Housing Code by making substantial repairs that cannot be made while the tenant lives there. (See additional requirements below.)
8. The landlord has received a permit to demolish the unit.
9. The owner of at least a 50 percent recorded interest in the property, or such an owner's spouse, parent, or child, wishes to occupy the rental unit as their principal residence and there is or was, for 90 days before the tenant was given notice to vacate, no vacant comparable unit available on any property owned by the landlord in Berkeley. (See additional conditions in the Owner move-in section below.)
10. An owner or lessor wishes to move back into a rented or sub-leased unit as permitted in the rental agreement with the current tenant(s).
11. A tenant refuses to vacate temporary housing offered by the landlord after repairs to the tenant's prior unit have been completed.
12. A tenant engages in unlawful activity on the premises.
The sale of property, the expiration of a rental agreement, or a change in the federal Section 8 status of a unit do not constitute "good cause" for eviction.
Foreclosure on a property does not automatically mean that the tenants must move. Despite what lenders and other successor owners may say, tenants are entitled to remain in the property unless there is good cause to evict. Foreclosure is not one of the good causes listed in the Rent Ordinance. See the discussion of "good cause" above and consult a Rent Board counselor for more information.
The City's ordinance governing conversions of property to condominiums and tenancies-in-common (TICs) includes substantial protections for sitting tenants. Most significantly, the good cause for eviction provisions of the Rent Ordinance will apply, so most tenants in converted properties will not be required to move. An owner planning to convert a rental unit to a condominium must notify the tenant of their rights to: 1) continue to rent the unit, even if converted, and 2) purchase the unit, if they wish. A tenant in a unit converted to a TIC may be evicted only if an owner of a 50 percent or more interest, or the owner's qualifying relative, will occupy the unit. See the discussion of "good cause" above and consult a Rent Board counselor for more information.
Before giving a tenant notice to vacate to perform substantial repairs, the owner must obtain all necessary permits. If, from the time notice is given until the tenant leaves the unit, the owner has other vacant units in Berkeley, one of these units must be offered to the tenant to occupy temporarily or permanently. If the repairs can be completed in 60 or fewer days and the tenant honors a written agreement to vacate the unit at no cost to the landlord (other than the abatement of rent during the repair period), the tenant cannot be evicted. Finally, the tenant must be given the option to re-occupy the rental unit once the repairs have been completed.
Owner move-in (Measure Y)
The Ordinance prohibits evictions for owner or relative occupancy where either: (1) the tenant has lived on the property for 5 or more years and the landlord has a 10% or greater ownership interest in 5 or more residential units in Berkeley, or (2) the tenant is at least 60 years old or disabled, has lived on the property for 5 or more years, and the landlord has a 10% or greater ownership interest in 4 residential units in Berkeley. If all the landlord’s units are limited by the above, an eviction for the owner or relative to move in is permitted where: the landlord has owned the property for 5 years and is at least 60 years old or disabled, or the landlord’s relative is at least 60 years old or disabled.
The landlord must include, in the notice of termination, information about all Berkeley residential properties in which he or she has a 10% or greater ownership interest, and must always offer the tenant any unit that he or she owns in Berkeley that becomes available before the tenant vacates his or her unit.
The landlord must provide a $4,500 relocation assistance payment to any low-income household with at least one tenant who has resided in the unit for one year or more, if the tenant notifies the landlord and the Rent Board in writing, within 30 days of receiving the notice of termination of the tenancy, that he or she is claiming low-income tenant status for the household.
The landlord must give the terminated tenant the right to re-occupy the unit when the landlord or his or her relative moves out. Also, when the landlord or his or her relative moves out, the rent for the next tenant will be limited to the prior rent ceiling and intervening AGAs.
Finally, if a landlord rescinds a notice of termination or stops eviction proceedings for owner or relative move-in, and the tenant vacates within one year of the notice date, it is presumed that the tenancy terminated as a result of the notice, and the rent for the next tenancy will be limited to the prior rent ceiling and intervening AGAs. (Regulation 1016 .)
This state law (Government Code sections 7060 – 7060.7) allows landlords to evict tenants in order to remove units from the rental housing market. (Search California Government Code for Section 7060.) (A local ordinance, Berkeley Municipal Code Chapter 13.77, establishes specific procedures under the state law.) Generally, an owner must withdraw all units on a property in order to evict under the Ellis Act. Tenants must be given at least 120 days’ notice; the notice period is extended to one year for tenants who are disabled or 62 years of age or older. Previously, only low-income, elderly or disabled tenants were eligible for a relocation payment. Now all tenants evicted under Ellis are entitled to $8,700 in relocation monies, divided equally among all tenants in the unit, with an additional $5,000 to households whose tenancies began before January 1, 1999. Low-income, elderly and disabled tenants, and tenant households with minor children, who claim and prove their status are entitled to an additional relocation payment of $2,500. Displaced tenants may request the opportunity to re-occupy the unit, on substantially the same terms as during their former tenancy, if it is re-rented within ten years of the withdrawal date. This right to re-occupy applies only to the first re-rental within ten years.
When a landlord issues a notice of intent to withdraw rental units from the market under the Ellis Act, the rents for all units on the property will be regulated for the next five years, even if the landlord subsequently rescinds the Ellis notice. During this time, the rent ceiling may be increased only by Board-authorized rent adjustments; none of the rents may be increased to market level following a vacancy. After this five-year period, the landlord may be eligible for a rent increase to market level following a qualifying vacancy. (Civil Code section 1954.53(a).)
Under the Ordinance, if a landlord evicts a tenant to perform repairs or demolish the property, and the repair or demolition is not initiated within two months, or if the landlord’s claim was false or in bad faith, the tenant may sue to move back into the unit and be compensated for damages incurred. If the tenant can prove the landlord’s conduct was willful, the tenant can recover the greater of $750 or three times the actual damages. (B.M.C. section 13.76.150 B.)
Bad faith is presumed where a landlord evicts for owner or relative move-in, and the owner or relative does not move in within three months of the tenant’s vacancy, or does not occupy the unit as a principal residence for at least 36 continuous months. (B.M.C. section 13.76.130 A.9.g. ) Also, under state law, a tenant who can show an owner’s fraudulent intent not to reside in the property for at least six months may receive additional compensation. (Civil Code section 1947.10.) (Search California Civil Code for Section 1947.10.) If a unit that was withdrawn under the Ellis Act is re-rented within two years of the withdrawal date, displaced tenants may sue for damages resulting from their displacement; if the re-rental occurs more than two, but less than ten years from the withdrawal date, displaced tenants may sue for damages if the owner failed to offer them the opportunity to re-rent. (B.M.C. section 13.77.040.)
The Eviction Process
Following is a chronological account of a typical eviction proceeding. Remember that the Rent Board does not provide legal advice about eviction lawsuits, and that the following process is governed by state law and subject to change.
The property owner gives the tenant a written three-day notice to quit (leave) or perform (e.g., pay rent or comply with the rental agreement); or a 30-day notice of termination for other good causes under the Rent Ordinance (60 days' notice is required if the tenancy has lasted more than one year); or a 120-day notice under the Ellis Act. Days are counted starting with the day after the tenant receives notice; if the last day falls on a Saturday, Sunday, or legal holiday, the tenant has until the following business day to vacate.
After a three- or thirty-day notice expires without the tenant having complied, the owner may file papers with the court, called a Summons and Complaint for Unlawful Detainer, which continue the eviction process.
A copy of the Summons and Complaint for Unlawful Detainer is served (delivered to) the tenant (usually by personal delivery).
The tenant has five days to file a written response with the court. Saturdays and Sundays are included in counting the five days, but court holidays are not. If the fifth day falls on a Saturday or Sunday, the response may be filed the next court day. (If the tenant fails to respond in writing to the Summons and Complaint within the required time, then the property owner will probably win by default.)
If the tenant has filed a written response, a date is set for a hearing before a judge, or a judge and jury. Both tenant and landlord appear in court to present their cases.
If Property Owner Wins at Trial or by Default
The owner is awarded possession of the property, and the tenant may be asked to pay back rent. If the tenant does not move voluntarily, the owner asks the court to issue a writ of possession, which authorizes the sheriff to evict the tenant. The sheriff serves a notice on the tenant to move within five days. If the tenant does not move, the sheriff will escort the tenant from the property. The tenant may not return to the property.
If the Tenant Wins: The tenant stays in the unit.
Improper Landlord Actions
A landlord may not retaliate against a tenant for exercising his or her rights under the Ordinance or other laws. “Retaliation” can take the form of attempting to evict the tenant, increasing rent, refusing to renew a lease, or threatening to do any of those things. Tenant actions protected by law include reporting housing code violations or filing a petition with the Rent Board. A landlord’s retaliatory motive is a defense to an eviction action.
“Self-help” evictions -- that is, forcing a tenant out of a unit without a court order -- are prohibited in California. It is illegal for a landlord to:
- remove exterior doors or windows,
- prevent a tenant’s access to the rental unit by changing the locks,
- remove a tenant’s personal property from the rental unit, or
- cut off utilities with the intent to deny the tenant use of the premises.
A landlord may not try to force a tenant to vacate a unit through theft, fraud or extortion, or by using, or threatening to use, force, threats, or menacing conduct that interferes with the tenant's right to quiet enjoyment of the premises. However, a warning given in good faith that a tenant’s conduct violates or may violate the lease or applicable laws, or an explanation of the lease terms or applicable law, is permissible.
A landlord may not demand or collect rent, or issue a notice of rent increase, or issue a three-day notice to pay rent or quit if all of the following conditions exist:
- The unit substantially lacks any of the standards of tenantability listed in Civil Code section 1941.1, contains lead hazards, or is deemed and declared substandard because a condition listed in Health and Safety Code section 17920.3 (e.g., lack of sanitation, pest infestation) endangers the life, health, property, safety, or welfare of the public or the unit’s occupants;
- The landlord has received a written citation directing him or her to abate the nuisance or repair the substandard conditions;
- The conditions have existed for more than 35 days after issuance of the citation and there is no good cause for the delay in repairing them; and
- The conditions were not caused by the tenant.
A tenant who is being evicted may assert, as a defense, that the landlord failed to provide a tenantable unit or breached the implied warranty of habitability. In addition, a landlord who tries to evict a tenant for nonpayment of rent where all of the above conditions exist is liable to the tenant for attorney’s fees and costs.
A tenant who is illegally evicted may sue to regain possession of the unit and for damages. A tenant should contact an attorney or tenants’ rights group if the landlord takes retaliatory action or attempts to force him/her out without going through the eviction process.