The Berkeley Rent Board Mailbag

Roommates & Neighbors

Q: I recently moved into a two-bedroom apartment. I received the owner's permission to move in, but I pay rent to my roommate, who has lived here for four years. She originally signed the lease with someone who moved out after a year, so she has had the place to herself for a few years now. She acts like she owns the place, and she uses the living room as her office, so I can't really use it and am confined to the kitchen or my bedroom. She further threatens that since I'm not on the lease she has the right to kick me out if I don't do as she asks. What are my rights?  (September 2004)

It doesn't much matter that your name is not on the lease. You are protected by the Rent Ordinance in that you can be evicted only for one of the good causes listed in the ordinance. You are a subtenant and your roommate is your 'landlord,' but you have the same right to occupy the apartment as she does.

Your roommate's ability to exclude you from the living room is governed by your original agreement with her. If you agreed to share the living room, or reasonably assumed this was the case, then you have a right to use that space. (This is a good reason to put a subtenancy agreement in writing.) But if it was clear when you moved in that the living room was her space, then you probably can't insist on being able to use it.

In any case, your rent cannot exceed an amount proportional to the space you occupy. If your roommate pays the owner $1,100 for the entire apartment and you occupy half of it - say, you each have exclusive use of a similarly-sized bedroom and share the rest of the space - your rent should not exceed $550. If your roommate has exclusive use of the living room, then your rent should be less than $550, reflecting her greater share of the unit. You should try to negotiate a lower rent if you think you're paying more than your fair share. If you cannot work out your differences, you may file a petition with the Rent Board. If it is determined that your roommate either reduced the space originally available to you, or is charging more than your proportionate share of rent, your rent will be reduced.

Q: I'm considering buying a six-unit building, and I am trying to determine a realistic income stream for the property. One of the units is occupied by an elderly tenant and his adult son. The father, who has been living there since 1985, is the only tenant on the lease. His son moved into the unit in 1995. If the father leaves or moves to a nursing home, may I increase the rent to "market" for the son? What if the son remains in the unit and then takes a new roommate (who is not related) -- may I increase the rents or bring them to market at that time?  (September 2004)

A simple change in ownership, alone, does not provide a basis for increasing the lawful rent ceilings. As long as the son lived in the unit before January 1, 1996 with the landlord's knowledge, he is considered an original occupant of the unit. You would not be allowed to increase his rent even if his father vacated and he acquired a new roommate. Once the son vacates, however, you would be able to increase the rent for any remaining subtenant. (See Board Regulation 1013(O)(1).) You should refrain from having the roommate sign a lease directly with you prior to the son's moving out.

As tenants leave voluntarily, or are evicted for non-payment of rent (for example), an owner may establish a new rent at whatever the market will bear. You should log on to the Rent Board's (Board's) website if you need specific information or wish to review the Rent Ordinance, Regulations or other pertinent State law. In addition, read the Board's Guide to Rent Control before deciding whether to purchase this building.

Q: My roommate's boyfriend sleeps over almost every night. I wouldn't mind if it were occasional, but it's as if he lives here, watching the television in the living room every night, taking showers every morning, and generally taking up space. Our lease says only 2 people can live here and that guests may stay for up to 2 weeks. I have asked my roommate to limit her boyfriend's visits to weekends but she refuses. Do I have the right to break my lease because my roommate is in violation? (September 2003)

This is a difficult situation, and one that you will probably have to work out with your roommate and her boyfriend. If you both signed the lease, you are both responsible for the lease obligations, even if one of you is in violation of one or more of the lease terms. Your landlord cannot evict your roommate for the lease violation without terminating the lease and also evicting you. Alternatively, if you break the lease, you can still be held responsible for fulfilling its terms, i.e., paying your portion of the rent. If you cannot come to an agreement or live with the current situation, and your lease does not prohibit subletting, you might consider subletting to someone who will not be bothered by the constant presence of your roommate's boyfriend.

Q: I rented a unit to 3 tenants, all of whom are named on the lease. One of them told me that he plans to move out and has found a replacement. Should I put the replacement roommate on the lease, make out a new lease, or treat the new person as a sublessee of the original tenants? (August 2003)

While any of those is a viable option, you should be advised that there are different legal consequences to each course. Once your three original tenants vacate the apartment, the Costa-Hawkins law will allow you to set a new market-rate initial rent on any "lawful sublessees or assignees" who remain in the unit. According to the decision in Cobb v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2002) 98 Cal.App.4th 345, if the replacement roommate has a direct landlord-tenant relationship with the owner, s/he will be considered an original tenant, not a sublessee or assignee. Having the replacement roommate sign either the original or a new lease will create a direct landlord-tenant relationship. This means that the two remaining original tenants and the replacement roommate will have to move before you can set a new initial rent.

However, if you do not name the newest tenant on the lease but treat him/her and any other replacement as a sublessee of the original tenants, you can re-set the rent after the two remaining original tenants move. In this case, the sublessee will not have a direct relationship with you but will be responsible to the master tenants to perform the lease obligations. You should also be advised not to accept rent directly from a replacement roommate, but to have the remaining original tenants pay the entire rent and collect the sublessee's portion. If you accept rent from the sublessee, s/he could argue that s/he has a direct relationship with you and, therefore, should be treated as an original tenant.

Q: I am having roommate problems. My two "former" friends and I rented a 2-bedroom apartment together. The landlord only wanted one person's name on the lease, so I agreed to be the signer and the other two sublet from me. I agreed to share a room with one roommate, and the other got his own room. I had the other two sign month-to-month sublet agreements specifying the rent amounts agreed upon. We each split utilities equally, and agreed that those sharing rooms would pay $75 less in rent, which seemed proportional to the space we used. The problem is, my roommate with whom I shared a room has moved out, and I don't want to replace him. So now, two of us need to pay the entire rent. I've asked the other person to pay half the rent now, since we both share equal space in the apartment, but he contends that I am changing the terms of his agreement and that he does not have to pay more than he originally agreed to. Is he correct? (February 2003)

No. Rent Board Regulation 1003C states that the maximum rent ceiling for a subtenant in a group living arrangement shall be substantially proportional to the space the subtenant occupies, adjusted for amenities. In this case, if the two of you are now sharing the space equally, you may raise your roommate's share of the rent. If there had been no subletting agreement, you and your remaining roommate most likely would have been obligated to split the rent when the other roommate vacated, even though you were the only tenant to sign the lease. However, because you and your remaining roommate had previously entered into a month-to-month sublet agreement that your roommate may legally enforce, to increase his share of the rent to the rent ceiling, you must give him a 30-day notice if the increase is 10% or less, or 60 days if it's more than 10%, before increasing the rent. (See Civil Code section 827.)

Q: My roommate and I both signed the lease for our apartment two years ago and are now on a month-to-month rental agreement. My roommate told me he is moving out next week. Doesn't he have to give me and the landlord 30 days' notice? Am I responsible for the entire rent for next month, even though I haven't had a chance to find a replacement to cover his half of the rent? (November 2002.)

You and your roommate are each independently responsible for the entire rent for the apartment. Your roommate is not required to give the landlord 30 days' notice, although most leases require tenants to inform the landlord of a change in occupants. And, while no statute specifically obligates him to give you notice before moving, the law might imply a reasonable amount of notice, which could be 30 days. You could ask your roommate to pay his share of next month's rent, depending on when a replacement is found, or ask him to forego the return of his half of the security deposit. Your last resort is to sue him in small claims court for the extra rent you pay while looking for a new roommate.

Q: I own my home in Berkeley, and I would like to share it with a roommate. Will I have trouble getting rid of the roommate if things don't work out?  (September 2002.)

A landlord who is at least a 50% owner of a property that he or she occupies as a principal residence, and who shares a kitchen or bathroom with a tenant, is not subject to the Berkeley Rent Ordinance. If you meet those criteria, you do not need good cause to evict a tenant. You are still bound by state law, however, so if you have a month-to-month agreement with your tenant, he or she will be entitled to a 30-day written notice to leave. 

Q: I am a renter in a two-bedroom apartment in Berkeley. In December my old roommate moved out and in January I got a new roommate. We are not getting along. I want him to leave, but he refuses, saying it's his apartment, too, and that he has a right to stay. Is there any way I can evict him?  (May 2002)

If he is paying rent to you, you are his landlord and need "good cause" under the Berkeley Rent Ordinance to evict him. Among the eleven good causes listed in the Ordinance (see Berkeley Municipal Code section 13.76.130 A) are grounds such as non-payment of rent and violation of the lease, but "not getting along" is not one of them. If you have good cause but he still refuses to leave, you have to take him to court to evict him.

If your roommate pays rent to the owner, you are not his landlord and have no authority to evict; only the owner does. Again, however, the owner must have good cause to evict.

Instead of trying to get rid of your roommate, you might seek out the assistance of a neutral third party, such as Berkeley Dispute Resolution Services (510/428-1811), to help you and your roommate work out your differences.

Q: I am a student and have been renting my apartment since last August. I am going away for almost 3 months this summer and want to sublet to someone. My landlord says it's okay, as long as I am the one paying him the rent. Are there any laws I should know about subletting? How can I make sure the person I rent to will move out when I return?  (May 2002)

Draw up a rental agreement with your subletter specifying that you have the right to re-occupy the unit by a certain date. If the subletter does not abide by the agreement, you may evict him or her. Under the Berkeley Rent Ordinance, a lessor who previously occupied a unit as a principal residence has good cause to evict when he/she seeks to re-occupy the unit as his/her principal residence, where this right to re-occupy is included in the rental agreement with the subtenant. (B.M.C. sec. 13.76.130 A.10.)

You should attach a copy of your lease with the owner to your agreement with the subletter, so he or she is informed of all lease obligations. Also, confirm your landlord's consent to the sublet in writing, and provide an address where notices can be served on you during the subtenancy. If the subletter violates your lease with the landlord, and the landlord serves the subletter with notice of a breach, you want to receive a copy of the notice and have an opportunity to cure the breach, so you aren't subject to eviction for the acts of your subletter.

Q: My friend and I moved into a 3-bedroom house with a guy who has been living there for about 5 years. He told us he pays the landlord $1500 a month for the house, and he's charging us $700 apiece. That means his rent is only $100. He says he's entitled to it because he was the original renter so he's the reason the rent is so low, and because he's the one responsible for the rent and for finding roommates. Is it legal for him to charge us so much more than he is paying?

No. Under Rent Board Regulation 1003, where a master tenant (one who rents the entire unit from the landlord and is solely responsible for rent) sublets portions of the unit to others, the subtenant's rent ceiling is presumed to be proportional to the space occupied by the subtenant. So, in your case, if the rent is $1500 and the 3 bedrooms are about equal in size, your rent ceiling is presumed to be $500. The presumption can be changed if the rooms vary in amenities; for instance, if one bedroom has a private bath and the others don't, the rent ceiling could be higher for that room.

If your master tenant does not agree to return the money you and your friend appear to have been overpaying and to reduce your rent to $500, or if you disagree as to the value of the relative amenities of the rooms, you may file a petition with the Rent Board against him for illegally high rent.

Q: My upstairs neighbors are very noisy and inconsiderate. As late as 4:00 a.m., they're up screaming and laughing in a raucous manner, watching their TV with the volume way too loud, and stomping across the floor. We had to complain to the managers several times before they finally took action. Even then, the managers' warning letter came only after they heard the noise for themselves. But then, on the very next night after receiving the letter, our noisy neighbors were back at it, this time hammering and using power tools until 3:00 a.m. Can't the landlord do more?

Yes. Your landlord has taken the proper first step by issuing a written warning to these tenants. Now, if these disturbances persist, there is just cause for your landlord to ask these tenants to leave. Under the Rent Stabilization Ordinance, tenants may be evicted if, after receiving written notice to cease, they continue to be "so disorderly as to destroy the peace and quiet of other tenants or occupants of the premises." (Berkeley Municipal Code section 13.76.130A5)

You may also want to consult your neighbors. If all of you contact the landlord and present him with a record of the dates, times and types of disturbances you have experienced, it may prompt him to take action. Finally, if all else fails, you and your neighbors may consider bringing a Small Claims Court action against both your upstairs neighbors and your landlord for your loss of quiet enjoyment.

Q: Recently, I signed a rental agreement for a two-bedroom apartment. The contract allows two tenants to live in the unit, and I immediately informed the landlady that I would be looking for a roommate. She gave me an application to be completed by my roommate when I found someone. When I returned my prospective roommate's application, the landlady instantly rejected it because the person I chose was not a student. Can she reject a qualified applicant for that reason?

Where a rental agreement allows the tenant to share or sublet the apartment, the landlord cannot unreasonably reject a prospective roommate. In addition, a "students only" policy is likely a violation of federal, state and local fair housing laws because it unfairly discriminates on the basis of age and familial status. Board Regulation 1270 authorizes a proportional rent ceiling decrease where the landlord's policies reduce the number of tenants allowed to occupy a rental unit to a number less than the base occupancy level. Thus, you might qualify for a 50% rent ceiling reduction if the landlord continues to insist that your roommate be a student. Informing the landlord of this regulation and your intent to file a petition with the Rent Board if she continues to unreasonably withhold her consent to a non-student roommate might persuade her to change her policy. If not, you should consider filing a petition or a lawsuit. Keep copies of any written explanations of the landlord's "students only" policy to submit as evidence if you do file a petition or a lawsuit.

Q: I was sharing a three-bedroom apartment with two roommates. One of my roommates moved out and I found a replacement. The landlord refused to rent to the person I proposed. I have since proposed three other roommates, all of whom the landlord has refused. My roommate and I can't afford the rent without a third roommate. What can I do?

The Rent Board regulations provide that if your landlord originally rented to three people and now will only rent to two people, you can petition the Rent Board for a decrease in rent equal to the percentage by which the number of allowable tenants has been reduced. In this case, since the landlord originally rented to three people and now will only permit two, you could ask for a thirty-three percent decrease in rent.

Q: Three roommates and I rented a three-bedroom unit in 1995. Two of my roommates moved out and two new roommates moved in. My landlord increased the rent by 10%. Is this legal? Can he do this after January 1, 1999 even if he can't do it now?

First, the rent may only be increased when there is a vacancy. A vacancy occurs only when all of the original tenants to the lease have moved. Thus, if three tenants signed a lease and two tenants moved out, there has not been a vacancy because one of the original tenants remains in possession of the rental unit. A vacancy will not occur until the last original tenant moves. So, if your landlord took a rent increase while an original tenant was still in the unit, this would be considered an overcharge and you should ask for a refund. The same rules will apply after January 1, 1999.

Recently, some landlords have been naming only one tenant on the lease, and then allowing the named tenant bring in a certain number of roommates. In such a case, the Rent Board has determined that each person who moves in within one month of the first tenant is considered an original tenant.

Have a question?  E-mail us at