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November 8, 2016 — California General Election
Ballot and voting information for Alameda County.
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Amend Rent Stabilization OrdinanceOrdinance

Local
November 8, 2016California General Election

City of Berkeley
Measure AA Ordinance - Majority Approval Required

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Election Results

Passed

39,332 votes yes (73.16%)

14,427 votes no (26.84%)

  • 100% of precincts reporting (108/108).

Shall an ordinance amending the Rent Stabilization Ordinance to: prohibit owner move-in evictions of families with children during the academic year; increase the amount of relocation assistance required for owner move-in evictions to $15,000 with additional $5,000 for certain tenants; clarify protections for elderly/disabled tenants; require filing of eviction notices; change the source of interest rates for security deposits; and clarify exemptions and penalties to conform with state law, be adopted?

Impartial analysis / Proposal

 

 

 

 

 

This measure would amend the Rent Stabilization and Eviction for Good Cause Ordinance (BMC Chapter 13.76) in the following respects.

 

It would require that landlords pay $15,000 to all tenant households evicted for owner move-ins (OMI), with an additional $5,000 ($20,000 maximum per rental unit) for low-income, disabled, elderly, families with minor children, or tenancies that began prior to 1999, and would allow a Rent Board hearing examiner to adjudicate disputes as to tenants’ eligibility to receive the additional $5,000.

 

It would also prohibit owner move-in evictions of families with school-age children during the academic year.

 

It would change the term “residential rental units” to “residential units” in Section 13.76.130A.9.k.(i) to protect seniors and disabled tenants who have occupied their units for five or more years from OMI evictions if their landlord owns three or more total residential units in Berkeley.

 

It would clarify that security deposits shall bear interest at a rate equal to the 12-month average of the average rates of interest paid on six-month certificates of deposit by banks doing business in Berkeley.

 

It would clarify that Annual General Adjustments may be restored.

 

It would clarify that fraternity and sorority rooms occupied by active members of the fraternity or sorority are exempt from the Ordinance.

 

It would clarify that only units that received a certificate of occupancy after June 30, 1980, are exempt from rent controls and registration as new construction.

 

It would require filing of eviction notices with the Rent Board.

The Ordinance currently requires landlords to provide relocation assistance of $4,500 to low-income tenants, but not other tenants, who are evicted from their units for owner occupancy. The proposed amendments would increase this amount to $15,000, and require that it be paid to all tenant households evicted for owner move-ins, with an additional $5,000 for certain categories of tenants.

 

 
— Zach Cowan, Berkeley City Attorney

Arguments FOR

Measure AA increases protections for renters evicted through no fault of their own during this unprecedented housing crisis, including families with children, and updates the Rent Ordinance to conform to changes in state law. This measure was placed on the ballot by the Mayor, Rent Board, and a unanimous City Council because it requires a vote of the people.

EVERY CHILD deserves the security of the same home and classroom throughout the school year. This is true whether the child’s parents own their home or are tenants. Measure AA would delay owner move-in evictions of children until school is out for summer and require fair relocation payments. As in other cities, this measure will bring needed stability to our classrooms.

Moving is expensive! The number of “no-fault” evictions have tripled in the last few years. Without fair relocation payments tenants cannot afford to stay in Berkeley.


Measure AA will increase relocation payment amounts, which have not been adjusted in thirty years, and are far less than in cities like San Francisco, Santa Monica and Los Angeles.

A few “good government” clean-up changes to the Rent Ordinance are included in Measure AA. These changes will not weaken the law or change the way the Rent Board administers it, but will make the law easier to understand and follow.

A YES vote will:

  • Protect Families with Children from owner move-in evictions during the school year.
  • Provide Fair Relocation Payments to tenants who are evicted for owner move-in.
  • Protect Landlords and Tenants by making the Rent Ordinance easier to understand.
  • Promote Neighborhood Stability and Preserve Diversity

Join City Council and School Board members, the Associated Students of the University of California, Berkeley Tenants Union, Landlords, and East Bay Young Democrats in Voting YES ON MEASURE AA.

—Judy Appel, Berkeley School Board
—Maxwell G. Anderson Jr., City Councilmember District 3
—Katherine Harr, Vice-Chair Rent Stabilization Board; Small Property Owner
—Matthew Lewis, ASUC Housing Commission Chair, on behalf of the Associated Students of the University of Calfiornia
—Christina Murphy, Housing Coordinator    

— Alameda County Registrar of Voters

Arguments AGAINST

No arguments against were filed.

— Alameda County Registrar of Voters

Proposed legislation

AN ORDINANCE OF THE CITY OF BERKELEY AMENDING BERKELEY MUNICIPAL CODE CHAPTER 13.76 TO PROHIBIT OWNER MOVE-IN EVICTIONS OF FAMILIES WITH CHILDREN DURING THE ACADEMIC YEAR; INCREASE THE AMOUNT OF RELOCATION ASSISTANCE AND EXPAND ELIGIBILITY FOR RELOCATION ASSISTANCE; CLARIFY PROTECTIONS FOR CERTAIN TENANTS; CHANGE THE SOURCE OF THE INTEREST RATE FOR SECURITY DEPOSITS; AND CHANGE LANGUAGE REGARDING EXEMPTIONS AND PENALTIES TO CONFORM TO STATE LAW

THE PEOPLE OF THE CITY OF BERKELEY ORDAIN AS FOLLOWS:

Section 1. Section 13.76.050 of the Berkeley Municipal Code is amended to read as follows:

Section 13.76.050 Applicability.

This chapter shall apply to all real property that is being rented or is available for rent for residential use in whole or in part, except for the following:

     A. Rental units which are owned by any government agency. However, the exemption of units owned by the Berkeley Housing Authority from the terms of this chapter shall be limited to their exemption from the terms of Section 13.76.080, Rent Registration; Section 13.76.100, Establishment of Base Rent Ceiling and Posting; Section 13.76.110, Annual General Adjustment of Rent Ceilings; and Section 13.76.120, Individual Adjustments of Rent Ceilings, of this chapter.

     B. Rental units which are rented primarily to transient guests for use or occupancy less than fourteen consecutive days in establishments such as hotels, motels, inns, tourist homes, and rooming and boarding houses. However, the payment of rent every fourteen days or less shall not by itself exempt any unit from coverage by this chapter.

     C. Rental units in nonprofit cooperatives owned and controlled by a majority of the residents.

     D. Rental units leased to tenants assisted under the Section 8 program (42 U.S.C. Section 1437f) or the Shelter Plus Care Program (42 U.S.C. 11403 et. seq.) or similar federally funded rent subsidy program. Except as may be preempted by state or federal law, the exemption of such rental units from the terms of this chapter shall be limited to Section 13.76.080, Rent Registration; Section 13.76.100, Establishment of Base Rent Ceiling and Posting; Section 13.76.110, Annual General Adjustment of Rent Ceilings and Section 13.76.120, Individual Adjustments of Rent Ceilings, of this chapter. However, the exemption from Sections 13.76.080, 13.76.110 and 13.76.120 shall apply only for so long as the rent demanded does not exceed the authorized Payment Standard, which, for purposes of this subsection, is the maximum monthly rental assistance potentially available to an assisted household before deducting the household share of income paid for rent and utilities as established by the Berkeley Housing Authority or successor agency. For units where the rent demanded exceeds the Payment Standard, the Payment Standard or an initial rent above the Payment Standard if approved by the Berkeley Housing Authority, as reported to the board by the Berkeley Housing Authority or successor agency, shall become the unit's base rent ceiling and the reference point from which the rent ceiling shall be adjusted in accordance with Sections 13.76.110 and 13.76.120.

     E. Rental units in any hospital, skilled nursing facility, health facility, asylum, or non-profit home for the aged.

     F. Rental units in a residential property which is divided into a maximum of four units where one of such units is occupied by the landlord as his/her principal residence. Any exemption of rental units established under this subsection (13.76.050 F.) shall be limited to rental units that would have been exempt under the provisions of this chapter had this chapter been in effect on December 31, 1979. After July 1, 1982, this exemption shall no longer apply to rental units in a residential property which is divided into three or four units. It shall continue to apply to rental units in a residential property which is divided into two units, and which meet all the other requirements of this subsection (13.76.050F). Rental units which become non-exempt under this provision shall have the provisions of Subsections 13.76.080I and 13.76.100C. applied to them.

     G. A rental unit in a residential property where the landlord shares kitchen or bath facilities with the tenant(s) of such rental unit and where the landlord also occupies a unit in the same property as his/her principal residence.

     H. For the purposes of Subsections 13.76.050 F. and G., the term landlord shall be defined only as the owner of record holding at least 50% interest in the property.

     I. Newly constructed rental units that have received a certificate of occupancy issued after June 30, 1980. which are completed and offered for rent for the first time after the effective date of this chapter, provided that such new units were not created as a result of rehabilitation or conversion as opposed to new construction. However, the exemption of such newly constructed units shall be limited to their exemption from the terms of Section 13.76.080, Rent Registration; Section 13.76.100, Establishment of Base Rent Ceiling and Posting: Section 13.76.110, Annual General Adjustment of Rent Ceilings; and Section 13.76.120, Individual Adjustments of Rent Ceilings, of this chapter.

    J. A rental unit which is rented by a nonprofit, accredited institution of higher education to a tenant or tenants who are student(s), faculty, or staff of the institution or of a member school of the Graduate Theological Union, provided, however, that the institution owned the unit as of January 1, 1988.

     K. A rental unit in a residential property owned by an organization exempt from federal income taxes under Section 501(c)(3) of the Internal Revenue Code that is rented to a low income tenant and subject to a regulatory agreement with a governmental agency that controls the unit's rent levels. However, the exemption for such rental units from the terms of this chapter shall be limited to Section 13.76.080, Rent Registration; Section 13.76.100, Establishment of Base Rent Ceiling and Posting; Section 13.76.110, Annual General Adjustment of Rent Ceilings; and Section 13.76.120, Individual Adjustments of Rent Ceilings of this chapter and shall apply only for so long as the regulatory agreement is in effect. This exemption shall not apply to rental units at the property that are not subject to a regulatory agreement with a governmental agency or that are rented by a tenant who occupied the unit prior to the property's acquisition by the tax-exempt organization.

      L. Rental units in a facility owned or leased by an organization exempt from federal income taxes under Section 501(c)(3) of the Internal Revenue Code that has the primary purpose of operating a treatment, recovery, therapy, sanctuary or shelter program for qualified clients, where such rental units are provided incident to the client's participation in the primary program and where the client has been informed in writing of the temporary or transitional nature of the housing at the inception of his or her participation in the program. However, except as may be preempted by the Transitional Housing Participant Misconduct Act (California Health and Safety Code Sections 50580 et. seq.) or other state or federal law, such rental units shall not be exempted from the terms of Section 13.76.130, Good Cause Required for Eviction. For purposes of Section 13.76.130.A.2, the client's continued eligibility for participation in the treatment, recovery, therapy, sanctuary or shelter program shall be deemed a material term of the client's rental agreement with the program's operator.

      M. A rental unit or room which is rented by an active member of a fraternity or sorority recognized by the University of California Berkeley, or a rental unit or room which is rented by an active member of a fraternity or sorority identified by Rent Board Resolution. To qualify for the exemption, the rental unit must be owned by the fraternity or sorority or by an entity whose sole purpose is the maintenance and operation of the fraternity or sorority’s rental units for the benefit of the members in order to provide housing to said members at cost.

Section 2. Section 13.76.070 of the Berkeley Municipal Code is amended to read as follows:

Section13.76.070 Security Deposits.

Any payment or deposit of monies by the tenant, the primary function of which is to secure the performance of a rental agreement or any part of such agreement, including an advance payment of rent, shall be held by the landlord, in a fiduciary capacity for the benefit of the tenant and shall accrue simple interest at the rate equal to the average rates of interest paid on six-month certificates of deposit by insured commercial banks doing business in the City of Berkeley until such time as the payment or deposit is returned to the tenant or entitled to be used by the landlord as provided in Civil Code Section 1950.5. The interest accrued by said payment or deposit through October 31st of each year shall be returned to the tenant annually in December of each year, either through a rent rebate or cash payment, and shall be at a rate equal to the 12-month average of the average rates of interest paid on six-month certificates of deposit by insured commercial banks doing business in the City of Berkeley as published by the Federal Reserve Board on the first business day of each month for the prior 12 months ending on November 1st, rounded to the nearest tenth. On or before November 15th of each year, the board shall give public notice of the rate to be effective for the following December. Upon the tenant's departure from the premises, the balance of any interest accrued since the last October 31st shall be paid at the average monthly rate from the last November 1st to the date of departure and shall be returned to the tenant along with the appropriate part of the principal and any prior unpaid interest. The board shall compute and publicize the interest rate applicable under this section on an ongoing basis.

Section 3. Section 13.76.110 of the Berkeley Municipal Code is amended to read as follows:

Section13.76.110 Annual General Adjustment of Rent Ceilings.

     A. Effective January 1 of each year, the rent ceiling for all rental units covered by this chapter for which the landlord did not establish an initial rent during the prior calendar year shall be adjusted by 65% of the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U) in the San Francisco-Oakland-San Jose region as reported and published by the U.S. Department of Labor, Bureau of Labor Statistics, for the twelve month period ending the previous June 30. In determining the allowable percentage rent increase, numbers of .04 and below shall be rounded down to the nearest tenth decimal place and numbers of .05 and above shall be rounded up to the nearest tenth decimal place. In no event, however, shall the allowable annual adjustment be less than zero (0%) or greater than seven percent (7%). The board shall publish and publicize the annual general adjustment on or about October 31st of each year.

     B. An upward general adjustment in rent ceilings does not automatically provide for a rent increase. Allowable rent increases pursuant to a general upward adjustment shall become effective only after the landlord gives the tenant at least a 30 days written notice of such rent increase and the notice period expires.

     C. If the maximum allowable rent specified under this chapter for a rental unit is greater than the rent specified for such unit in the rental agreement, the lower rent specified in the rental agreement shall be the maximum allowable rent until the rental agreement expires. If the maximum allowable rent specified under this chapter for a rental unit is less than the rent specified for such unit in the rental agreement, the lower rent specified under this chapter shall be the maximum allowable rent.

     D. No rent increase pursuant to an upward general adjustment of a rent ceiling shall be effective if the landlord:

          1. Has continued to fail to comply, after order of the board, with any provisions of this chapter and/or orders or regulations issued thereunder, or

          2. Has failed to bring the rental unit into compliance with the implied warranty of habitability, or

          3. Has failed to make repairs as ordered by the housing inspection services of the City of Berkeley, or

          4. Has failed to completely register by July 1, except as provided in Subsection E. below.

     E. The amount of an upward general adjustment for which a landlord shall be eligible shall decrease by ten percent (10%) per month for each month beyond October 1 for which the landlord fails to register.

     F. A landlord who is ineligible to raise rents under an upward general adjustment for an entire calendar year shall not be eligible to raise rents under that particular general adjustment in future years. An owner who has previously been out of compliance with the ordinance, regulations, or applicable housing, health and safety codes, and has been denied Annual General Adjustments, may be granted them prospectively as set forth in Rent Board Regulations.

Section 4. Section 13.76.130 of the Berkeley Municipal Code is amended to read as follows:

Section13.76.130 Good cause required for eviction.

     A. No landlord shall be entitled to recover possession of a rental unit covered by the terms of this chapter unless said landlord shows the existence of one of the following grounds:

          1. The tenant has failed to pay rent to which the landlord is legally entitled pursuant to the lease or rental agreement and under the provisions of state or local law, unless the tenant has withheld rent pursuant to applicable law; and said failure has continued after service on the tenant of a written notice setting forth the amount of rent then due and requiring it to be paid, within a period, specified in the notice, of not less than three days.

          2. The tenant has continued, after written notice to cease, to substantially violate any of the material terms of the rental agreement, except the obligation to surrender possession on proper notice as required by law, and provided that such terms are reasonable and legal and have been accepted in writing by the tenant or made part of the rental agreement; and provided further that, where such terms have been accepted by the tenant or made part of the rental agreement subsequent to the initial creation of the tenancy, the landlord shall have first notified the tenant in writing that he or she need not accept such terms or agree to their being made part of the rental agreement. Notwithstanding any contrary provision in this chapter or in the rental agreement, a landlord is not entitled to recover possession of a rental unit under this subsection where a tenant permits his or her rental unit to be occupied by a subtenant, provided:

               a. The landlord has unreasonably withheld consent to the subtenancy; and

               b. The tenant remains an actual occupant of the rental unit; and

               c. The number of tenants and subtenants actually occupying the rental unit does not exceed the number of occupants originally allowed by the rental agreement or the board's regulations, whichever is greater.

               d. Withholding of consent by the landlord shall be deemed to be unreasonable where:

                    (i) The tenant's written request for consent was given at least two weeks prior to commencement of the subtenancy;

                    (ii) The proposed new subtenant has, upon the landlord's written request, completed the landlord's standard form application or provided sufficient information to allow the landlord to conduct a standard background check, including references and credit, income and other reasonable background information; and

                    (iii) The proposed new subtenant meets the landlord's customary occupancy qualifications and has not refused the landlord's request to be bound by the terms of the current rental agreement between the landlord and the tenant; and

                    (iv) The landlord has not articulated in writing a well-founded reason for refusing consent.

          3. The tenant has wilfully caused or allowed substantial damage to the premises beyond normal wear and tear and has refused, after written notice, to pay the reasonable costs of repairing such damage and cease damaging said premises.

          4. The tenant has refused to agree to a new rental agreement upon expiration of a prior rental agreement, but only where the new rental agreement contains provisions that are substantially identical to the prior rental agreement, and is not inconsistent with local, state and federal laws.

          5. The tenant has continued, following written notice to cease, to be so disorderly as to destroy the peace and quiet of other tenants or occupants of the premises or the tenant is otherwise subject to eviction pursuant to subdivision 4 of Code of Civil Procedure Section 1161.

          6. The tenant has, after written notice to cease, refused the landlord access to the unit as required by state or local law.

          7.   a. The landlord, after having obtained all necessary permits from the City of Berkeley, seeks in good faith to undertake substantial repairs which are necessary to bring the property into compliance with applicable codes and laws affecting the health and safety of tenants of the building or where necessary under an outstanding notice of code violations affecting the health and safety of tenants of the building, and where such repairs cannot be completed while the tenant resides on the premises.

               b. Where such repairs can be completed in a period of 60 or fewer days, and the tenant, within 30 days after the service of a notice of termination of his or her tenancy, agrees in writing to vacate the premises during the period required to complete the repairs at no charge to the landlord, other than abatement of the obligation to pay rent for the premises during the period required to complete the repairs, the landlord may not recover possession pursuant to this subsection (13.76.130A.7.) unless the tenant shall fail or refuse to vacate the premises in accordance with such agreement.

               c. Where the landlord owns any other residential rental units in the City of Berkeley, and any such unit is vacant and available at the time of premises or the entry of a judgment by a court of competent jurisdiction awarding possession of the premises to the landlord, the landlord shall, as a condition of obtaining possession pursuant to this subsection (13.76.130A.7.), notify tenant in writing of the existence and address of each such vacant rental unit and offer tenant the right, at the tenant's option:

                    (i) To enter into a rental agreement (to be designated as a "temporary rental agreement") on any available rental unit which the tenant may choose, at a rent not to exceed the lesser of the lawful rent which may be charged for such available rental unit or the lawful rent in effect, at the time of the notice of termination of tenancy, on the unit being vacated, said rental agreement to be for a term of the lesser of ninety days or until completion of repairs on the rental unit being vacated by tenant; or

                    (ii) To enter into a new rental agreement or lease for such available rental unit at a rent not to exceed the lawful rent which may be charged for such available rental unit.

               d. Where the landlord recovers possession under this subsection (13.76.130A.7.), the tenant must be given the right of first refusal to re- occupy the unit upon completion of the required work. In the event the landlord files an application for an individual rent adjustment within six months following the completion of the work, the tenant shall be a party to such proceeding the same as if he or she were still in possession, unless the landlord shall submit, with such application, a written waiver by the tenant of his or her right to re-occupy the premises pursuant to this subsection.

          8. The landlord, after having obtained all necessary permits from the City of Berkeley, seeks in good faith to recover possession of the rental unit, in order to remove the rental unit from the market by demolition.

          9. Owner Move-in Evictions.

               a. The landlord seeks in good faith with honest intent and without ulterior motive to recover possession for his/her own use and occupancy as his/her principal residence for a period of at least 36 consecutive months; or

               b. For the use and occupancy as the principal residence by the landlord's spouse or by the landlord's child, or parent for a period of at least 36 consecutive months.

               c. For the purposes of this subsection (13.76.130A.9.), the term landlord shall be defined as the owner of record, as of the time of giving of a notice terminating the tenant's tenancy, and at all times thereafter to and including the earlier of the tenant's surrender of possession of the premises or the entry of a judgment of a court of competent jurisdiction awarding possession of the premises to the landlord, holding at least a 50% interest in the property and shall not include a lessor, sublessor, or agent of the owner of record.

               d. A landlord who endeavors to recover possession under this subsection shall, at the time of giving notice terminating the tenant's tenancy, notify the tenant in writing of theAll notices terminating tenancy pursuant to subsection 13.76.130.A.9 shall include the following: the existence and availability of relocation assistance under subsection 13.76.130A.9.g; the existence of tenant protections for families with minor children as defined in subsection 13.76.130A.9.k; the name and relationship of any qualified relative for purposes of subsection 13.76.130A.9b; and the landlord's ownership interest in any residential properties in the City of Berkeley where such interest, in any form whatsoever, is ten percent (10%) or greater. and,The landlord shall, within ten days of giving notice, file a copy of the notification of such ownership interest notice terminating tenancy with the Rent Board.

               de. The landlord may not recover possession under this subsection (13.76.130A.9.) if a comparable unit, owned by the landlord in the City of Berkeley, was, at the time of the landlord's decision to seek to recover possession of the rental unit, already vacant and available, or if a comparable unit, owned by the landlord in the City of Berkeley, thereafter becomes vacant at any time until the earlier of the tenant's surrender of possession of the premises or the entry of a judgment of a court of competent jurisdiction awarding possession of the premises to the landlord. In an action by or against the tenant, evidence that a comparable unit was vacant and available within ninety days prior to the date of a notice terminating the tenant's tenancy shall create a presumption that such unit was vacant and available at the time of the landlord's decision to seek to recover possession of the premises. "Presumption" means that the court must find the existence of the presumed fact unless and until the contrary is proven by a preponderance of the evidence.

               ef. The landlord shall offer any non-comparable unit owned by the landlord to the tenant if a non-comparable unit becomes available before the recovery of possession of the tenant's unit at a rate based on the rent the tenant is paying with an upward or downward adjustment based on the condition, size, and other amenities of the replacement unit. Disputes concerning the initial rent for the replacement unit shall be determined by the Rent Board.

               fg. Where a landlord recovers possession of a unit under subsection 13.76.130A.9, the landlord is required to provide standard relocation assistance in the amount of $15,000 to any low-income tenants tenant households where at least one occupant has who have resided in the unit for one year or more in the amount of four thousand five hundred ($4500). The landlord is required to provide an additional $5,000 relocation assistance to tenant households that qualify as low-income; or include disabled or elderly tenants; minor children; or tenancies which began prior to January 1, 1999. The maximum amount of relocation assistance per household required by this subsection shall be $20,000 prior to any applicable increases provided by subsection 13.76.130A.9.h below. The procedures for payment of this relocation assistance are set forth below in subsection 13.76.130A.9.p.(i) through (iv). For the purposes of this subsection (13.76.130A.9f) The following definitions apply for any tenant households evicted for owner move-in under subsection 13.76.130A.9:

                    (i) "low-income tenants" means persons and families whose income does not exceed the qualifying limits for lower income families as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937, or as otherwise defined in Health and Safety Code Section 50079.5.

                    (ii) a person is “disabled” if he/she has a physical or mental impairment that limits one or more of a person's major life activities within the meaning of the California Fair Housing and Employment Act (Government Code § 12926).
                    (iii) “elderly” is defined as sixty (60) years of age or older.
                    (iv) “minor child” means a person who is under 18 years of age.
                    (v) “tenancy began prior to January 1, 1999” is a tenancy where an “original occupant” (as defined by Berkeley Rent Board Regulation) still permanently resides in the rental unit.

               h. Effective January 1 of each year beginning in 2018, the fees set forth above in subsection 13.76.130A.9.g., shall be increased by the percentage increase in the Consumer Price Index - All Urban Consumers in the San Francisco-Oakland-San Jose Region for the 12-month period ending June 30, of the prior year, as published by United States Department of Labor. Any increase shall be published by the Board on or before October 31st of each year.

               gi. It shall be evidence that the landlord has acted in bad faith if the landlord or the landlord's qualified relative for whom the tenant was evicted does not move into the rental unit within three months from the date of the tenant's surrender of possession of the premises or occupy said unit as his/her principal residence for a period of at least 36 consecutive months.

               hj. Once a landlord has successfully recovered possession of a rental unit pursuant to this subsection (13.76.130A.9.a.), then no other current or future landlords may recover possession of any other rental unit on the property pursuant to Ssubsection 13.76.130A.9.a. It is the intention of this subsection that only one specific unit per property may be used for such occupancy under Ssubsection 13.76.130A.9.a and that once a unit is used for such occupancy, all future occupancies under Ssubsection 13.76.130A.9.a must be of that same unit.

               k. A landlord may not recover possession of a unit from a tenant under subsection 13.76.130A.9 if any tenant in the rental unit has a custodial or family relationship with a minor child who is residing in the unit, the tenant with the custodial or family relationship has resided in the unit for 12 months or more, and the effective date of the notice of termination of tenancy falls during the school year. The term “school year” as used in this subsection means the first day of instruction for the Fall Semester through the first day of the month following the last day of instruction for the Spring Semester, as posted on the Berkeley Unified School District website for each year.

                     (i) For purposes of subsection 13.76.130A.9.k, the term “custodial relationship” means that the person is a legal guardian of the child, or has a caregiver’s authorization affidavit for the child as defined by Section 6550 of the California Family Code, or that the person has provided full-time custodial care of the child pursuant to an agreement with the child’s legal guardian or court-recognized caregiver and has been providing that care for at least one year or half of the child’s lifetime, whichever is less. The term “family relationship” means that the person is the biological or adoptive parent, grandparent, brother, sister, aunt or uncle of the child, or the spouse or domestic partner of such relations.

               il. A landlord may not recover possession of a unit from a tenant under Ssubsection 13.76.130A.9 if any tenant in the rental unit:

                    (i) Is 60 years of age or older and has been residing on the property for five years or more; or
                    (ii) Is disabled and has been residing on the property for five years or more. For the purposes of this subsection (13.76.130A.9i) a person is "disabled" if he/she has a physical or mental impairment that substantially limits one or more of a person's major life activities within the meaning of the California Fair Housing and Employment Act (Government Code § 12955.3.); or
                    (iii) Has resided on the property for five years or more and the landlord has a ten percent (10%) or greater ownership interest, in any form whatsoever, in five or more residential rental units in the City of Berkeley.

               jm. A tenant who claims to be a member of one of the classes protected by Ssubsection 13.76.130A.9.il must submit a statement, with supporting evidence, to the landlord. A tenant's failure to submit a statement at any point prior to the trial date of an unlawful detainer action for possession of the tenant's unit shall be deemed an admission that the tenant is not protected by Ssubsection 13.76.130A.9.il. A landlord may challenge a tenant's claim of protected status by raising it as an issue at trial in an unlawful detainer action for possession of the tenant's unit.

               kn. The provisions of Ssubsection 13.76.130A.9.il shall not apply to the following situations:

                    (i) Where a person is the owner a landlord of three or fewer residential rental units in the City of Berkeley and has no greater than a nine percent (9%) ownership interest in any other residential rental unit in the City of Berkeley; or
                    (ii) Where each residential rental unit in Berkeley in which the landlord holds an ownership interest of ten percent (10%) or greater is occupied by a tenant otherwise protected from eviction by Ssubsection 13.76.130A.9.Ii and the landlord's qualified relative who is seeking possession of a unit subject to Ssubsection 13.76.130A.9.b is 60 years of age or older or is disabled as defined in Ssubsection 13.76.130A.9.il.(ii) above; or
                    (iii) Where each residential rental unit in Berkeley in which the landlord holds an ownership interest of ten percent (10%) or greater is occupied by a tenant otherwise protected from eviction by Ssubsection 13.76.130A.9.Ii, the landlord has owned the unit for which possession is being sought subject to Ssubsection 13.76.130A.9.a for five years or more and is 60 years of age or older or is disabled as defined in Ssubsection 13.76.130A.9.il.(ii).

lo. The provisions established by Subsection 13.76.130A.9i include, but are not limited to, any rental unit where a notice to vacate/quit has been served as of the date this amendment takes effect but where the rental unit has not yet been vacated or an unlawful detainer judgment has not been issued.

               mo. Where a landlord recovers possession under Subsection 13.76.130A.9, the tenant must be given the right of first refusal to re-occupy the unit upon its next vacancy.

               np. When a landlord is required to provide a relocation assistance payment subject to Ssubsection 13.76.130A.9.gf above, the payment shall be divided among the tenants occupying the rental unit equally among all low-income tenants occupying the rental unit at the time of service of the notice to terminate tenancy. Only those persons who have a written or oral agreement with the owner for possession of the rental unit or who have paid rent to the landlord shall be deemed low-income tenants for purposes of Subsection 13.76.130A.9f.

                    (i) Within ten days of service of a notice terminating tenancy under subsection 13.76.130A.9, the landlord shall deposit the standard relocation assistance (for households where an occupant has resided one year or more) with the City or its designated agent to be held in escrow. Within ten days after the funds are deposited into escrow, the City shall release the standard relocation assistance to the tenant household, unless the landlord notifies the Rent Stabilization Program in writing that he/she disputes the tenant household’s eligibility to receive such assistance.
                    (ii) In order to claim entitlement to additional relocation assistance under Ssubsection 13.76.130A.9.gf, a tenant must notify the landlord and the Rent Board Stabilization Program in writing that he/she is claiming "low-income, disabled, elderly, tenant with minor child status, or a claim that the tenancy began prior to January 1, 1999 (hereinafter “entitlement to additional relocation assistance”) tenant" status per Ssubsection 13.76.130A.9.gf within 30 days of filing receipt of the notice of termination of tenancy with the Rent Stabilization Program. The landlord shall deposit the fulladditional relocation payment with the City Rent Stabilization Program or its designated agent to be held in escrow for any tenant household who claims entitlement to additional relocation assistance tenants who claim low-income status within ten days after such notice claiming low-income status entitlement to additional relocation assistance is mailed. Thereafter, the City or its designated agent shall distribute amounts held in escrow as follows: 1. Within ten days after the funds are deposited into escrow, the Rent Stabilization Program shall authorize release of the relocation assistance to the tenant household that claims entitlement to additional relocation assistance, unless the landlord notifies the Rent Stabilization Program in writing that he/she disputes the tenant’s eligibility to receive such assistance. If no written challenge is made to the tenant's claim of low-income within ten days after the notice claiming such status is mailed, the City shall release the relocation assistance to the tenant.
                    2.(iii) When a tenant household’s eligibility to receive standard or additional relocation assistance as described in subsection 13.76.130A.9.g is disputed, either party may file a Rent Board petition requesting a determination of eligibility or file a claim in a court of competent jurisdiction. If the City receives conflicting information or assertions which indicate that there is a dispute or uncertainty concerning the tenant's qualification or status as low- income, the City shall continue to retain the disputed relocation assistance funds in escrow. The City Rent Stabilization Program shall release disputed relocation assistance funds to either the tenant or the landlord upon receipt of either a written agreement by both the landlord and the affected tenant(s), an order of a court of competent jurisdiction, or an order of a City or Rent Board hearing examiner issued pursuant to a petition process conducted in accordance with applicable Rent Board Regulations.
                       (ivi) The landlord may rescind the notice of termination of tenancy prior to any release of relocation payment to the low-income tenants by serving written notice stating such rescission on the tenants. In such instance, the relocation payment shall be released to the landlord. Subsequent to the release of any relocation payment to the low-income tenants, the landlord may rescind the notice of termination of tenancy only upon the written agreement of the tenants to remain in possession of the rental unit. If the low-income tenants remain in possession of the rental units after service of a landlord's written notice of rescission of the eviction, the low-income tenants shall provide an accounting to the landlord of the amount of the relocation payment expended for moving costs, return to the landlord that portion of the relocation payment not expended for moving costs, and assign to the landlord all rights to recover the amount of relocation payment paid to third parties. If a rescission occurs under this subsection, the tenant(s) shall continue the tenancy on the same terms as before the notice was served.
                    (iiiv) Where a landlord has served a notice of termination of tenancy on a tenant prior to the date that this amendment takes effect and the notice of termination of tenancy has not expired, the landlord shall deposit the full relocation payment with the City or its designated agent to be held in escrow for the low-income tenants if the tenants have not vacated the rental unit as of the effective date of this amendment, and the landlord shall pay the full relocation payment to the low income tenants if the low-income tenants have vacated the rental unit as of the effective date of this amendment. Said deposit in escrow or payment to the low-income tenants shall be made within ten days of the effective date of this amendment.
                    (ivi) Failure of the landlord to make any payment specified herein shall be a defense to any action to recover possession of a rental unit based upon the landlord's termination of tenancy notice pursuant to this subsection (13.76.130A.9). In addition, if the low-income tenants of a rental unit have vacated the unit as a result of a notice of termination of tenancy pursuant to this subsection (13.76.130.A.9), and the landlord fails to make any payment specified herein, the landlord shall be liable to the low-income tenants for three times the amount of the payment as well as reasonable attorney fees.

               oq. A tenant who prevails in an action brought under this subsection (13.76.130A.9), in addition to any damages and/or costs awarded by the court, shall be entitled to recover all reasonable attorney's fees incurred in bringing or defending the action.

               pr. At least twice annually, Rent Board staff shall report to the Rent Board regarding the occupancy status of units possession of which has been recovered pursuant to this subsection (13.76.130A.9) within the prior 36 months.

               qs. If any provision or clause of this subsection (13.76.130A.9) or the application thereof to any person or circumstance is held to be unconstitutional or to be otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect other provisions or clauses, and to this end the provisions and applications of this subsection are severable.

          10. A landlord or lessor seeks in good faith to recover possession of the rental unit for his/her occupancy as a principal residence, where the landlord or lessor has previously occupied the rental unit as his/her principal residence and has the right to recover possession of the unit for his/her occupancy as a principal residence under an existing rental agreement with the current tenants.

          11. The tenant fails to vacate a rental unit occupied under the terms of a temporary rental agreement entered into pursuant to the provisions of Ssubsection 13.76.130A.7.c., following expiration of the term of said temporary rental agreement, and following written notice of the availability of tenant's previous rental unit for re-occupancy by tenant (if the term of the rental agreement has expired by reason of the completion of repairs on the old rental unit), or of written notice to quit (if the term of the rental agreement has expired by reason of the expiration of a period of 90 days).

     B. A landlord's failure to specify good cause as listed above in Ssubsections 1. through 11. of Section 13.76.130A. in the notice of termination or the notice to quit and in the complaint for possession shall be a defense to any action for possession of a rental unit covered by the terms of this chapter.

     C. In any action to recover possession of a rental unit covered by the terms of this chapter, except an action to recover possession under Ssubsection 13.76.130A.7., 13.76.130.A.8, or 13.76.130.A.11., a landlord shall allege, as to each rental unit on the property, substantial compliance as of the date of the notice of termination or notice to quit and as of the date of the commencement of the action for possession with the implied warranty of habitability and compliance as of the date of the notice of termination or notice to quit and as of the date of the commencement of the action for possession with Sections 13.76.100 (Rent Ceiling) and 13.76.080 (Rent Registration) of this chapter.

     D. The landlord shall file with the board a copy of any notice of termination, notice to quit, and/or summons and complaint, within ten days after the tenant has been served with such notice or summons and complaint.

Section 5. Severability.

If any word, phrase, sentence, part, section, subsection, or other portion of this ordinance, or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the prescribed application thereof, shall be severable, and the remaining provisions of this chapter, and all applications thereof, not having been declared void, unconstitutional or invalid, shall remain in full force and effect. The People of the City of Berkeley hereby declare that they would have passed this ordinance, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases had been declared invalid or unconstitutional.

 

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