Under the Berkeley Rent Ordinance, landlords are permitted to terminate a tenancy to perform an owner move-in eviction or relative move-in eviction, which requires the owner or relative to reside in the unit as their principal residence following the eviction.  Despite being a lawful good cause eviction reason, the owner, or qualified relative, must follow strict rules following the eviction.  Their failure to comply with the Berkeley Rent Ordinance following such an eviction establishes a wrongful eviction claim for the former tenant.

Owner Move-In Defined

An owner move-in eviction occurs where the landlord seeks to recover possession of a rental unit in good faith with honest intent and without ulterior motive for their use and occupancy as their principal residence.  Berkeley Municipal Code § 13.76.130(A)(9).  Additionally, an owner can perform a relative move-in eviction by designating a spouse, child, or parent to move into the rental unit.  Id.

To perform an owner move-in, the owner must be a natural person and own at least 50 percent of the property at the time of serving the termination of tenancy notice.  Id; Regulations of the Berkeley Rent Stabilization Board Regulation 503(B).

What is a Principal Residence?

Under the Berkeley Rent Ordinance, a principal residence is the dwelling place where the person actually resides a majority of the time.  Regulations of the Berkeley Rent Stabilization Board Regulation 503(C). A person may only have one principal residence.  Id.

In determining whether a home is a principal residence, the Berkeley Rent Ordinance considers the following factors:

  1. Whether the person carries on basic living activities at the home;
  2. Whether the person maintains another dwelling, and if so, the amount of time that they spend at each home;
  3. Whether the person has filed for and obtained a homeowner’s exemption for the home;
  4. Whether the person is a registered voter at the home; and,
  5. Other relevant factors. Regulations of the Berkeley Rent Stabilization Board Regulation 503(D).

Owner Move-In Termination of Tenancy Requirements

Where the landlord terminates a tenancy to perform an owner move-in or relative move-in eviction, the termination of tenancy must contain the following information:

  • The existence and potential for relocation money;
  • The existence of tenant protections for families with minor children;
  • The name and relationship of any qualified relative who will move into the unit;
  • The landlord’s ownership interest in any Berkeley residential properties, where the interest is 10% or greater. Berkeley Municipal Code § 13.76.130(A)(9).

Within ten days of serving the notice, the landlord shall file it with the Berkeley Rent Board.  Id.

Following an Owner Move-In or Relative Move-In Eviction, How Long Must the Owner or Qualified Relative Reside in the Unit?

Following an owner move-in or relative move-in eviction, the owner or qualified relative must reside in the unit for at least thirty-six continuous months. Berkeley Municipal Code § 13.76.130(A)(9).

What Limitations Does the Berkeley Rent Ordinance Place on Owner Move-In Evictions & Relative Move-In Evictions?

Under the Berkeley Rent Ordinance, a landlord may not perform an owner move-in or relative move-in eviction where the owner owns a vacant and available comparable unit located within the City of Berkeley.  Berkeley Municipal Code § 13.76.130(A)(9)(e).  Further, if such a unit becomes vacant at any time until the tenant moving out or the landlord obtains an eviction judgment, the landlord may cease performing the owner move-in or relative move-in eviction.

If a non-comparable unit located in Berkeley and owned by the owner becomes available before the owner move-in or relative move-in eviction occurs, the landlord must offer the unit for rent.  Berkeley Municipal Code § 13.76.130(A)(9)(f).  Although the tenant’s base rent carries over to the replacement non-comparable unit, the landlord or tenant can petition the Berkeley Rent Board for an upward or downward rental adjustment.  Id.  Prior to petitioning the Berkeley Rent Board, the parties should attempt an informal resolution.  Upward or downward rental adjustments should be based on the condition, size, and other unit amenities.  Id.

Which Berkeley Tenants are Protected from an Owner Move-In or Relative Move-In Eviction?

A landlord may not perform an owner move-in or relative move-in eviction on a unit where any tenant:

  1. Is 60 years of age or older and has resided at the property for five or more years;
  2. Is disabled and has resided at the property for five or more years; or,
  3. Has resided at the property for five or more years, and the landlord has a 10% or greater ownership interest in at least five residential rental units within the City of Berkeley. Berkeley Municipal Code § 13.76.130(A)(9)(l).

To assert status as a protected tenant, the tenant must submit a written statement, with supporting evidence, to the landlord.  Berkeley Municipal Code § 13.76.130(A)(9)(m).

A landlord may still perform an owner move-in or relative move-in on a protected tenant where:

  • The landlord owns three or fewer residential units in the City of Berkeley and has no greater than a 9% interest in any other residential unit in Berkeley;
  • Where each Berkeley residential unit in which the landlord owns at least a 10% ownership interest is occupied by a protected tenant, and the qualified relative seeking possession of the unit is 60 years of age or older, or disabled; or,
  • Where each Berkeley residential unit in which the landlord owns at least a 10% ownership interest is occupied by a protected tenant, the landlord has owned the unit for at least five years, and the landlord is 60 years of age or older, or disabled. Berkeley Municipal Code § 13.76.130(A)(9)(n).

Is an Owner Move-In or Relative Move-In Eviction Possible Where the Landlord or Qualified Relative Already Occupy a Different Unit at the Property?

Yes, provided the landlord offers the unit that will become vacant to the tenant under their current terms and conditions, including the same rent.  Regulations of the Berkeley Rent Stabilization Board Regulation 1300.  This requirement does not apply where the number of tenants being offered the unit exceeds the unit’s maximum occupancy, and the tenants are not willing to reduce the total number of occupants.  Id.

What Relocation Payments are Berkeley Tenants Owed for Owner Move-In or Relative Move-In Evictions?

Under the Berkeley Rent Ordinance, landlords must pay relocation assistance when performing an owner move-in or relative move-in eviction.  Where at least one occupant has resided in a rental unit for one year, the entire unit is owed $15,000 in relocation payment. Berkeley Municipal Code § 13.76.130(A)(9)(g).  Units that qualify as low-income, include a disabled or elderly tenant, minor children, or where an original occupant has been residing in the unit since before January 1, 1999 must receive an additional $5,000 relocation payment.  Id.

The Berkeley Rent Ordinance defines low-income tenants as persons or families whose income does not exceed the qualifying limits for low-income families established by Section 8.  Id.

The Berkeley Rent Ordinance defines disabled as a person with a physical or mental impairment that limits one or more major life activities.  Id.

Under the Berkeley Rent Ordinance, elderly is any person who is 60 years of age or older.  Id.

How Do Berkeley Tenants Claim Additional Relocation Payment?

To claim additional relocation payment for an owner move-in or relative move-in eviction, the tenant must notify the landlord and the Berkeley Rent Board, in writing, that they are claiming low-income, disabled, elderly, tenant with minor child status, or a claim that the tenancy began before January 1, 1999 within thirty days of the landlord filing the notice of termination of tenancy with the Berkeley Rent BoardBerkeley Municipal Code § 13.76.130(A)(9)(p)(ii).

May A Landlord Dispute A Tenant’s Claim for Additional Relocation Payment?

Yes, a landlord may dispute a tenant’s claim for additional relocation payment by filing a petition for determination of eligibility at the Berkeley Rent Board or by filing a claim in court.  Berkeley Municipal Code § 13.76.130(A)(9)(p)(iii).

Does the Berkeley Rent Ordinance Require Landlords to Divide Owner Move-In or Relative Move-In Eviction Relocation Payments?

Yes, Berkeley landlords must divide owner move-in or relative move-in eviction relocation payments among the tenant occupying the unit at the time of service of the notice to terminate the tenancy.  Berkeley Municipal Code § 13.76.130(A)(9)(p).

Do Tenants Receive Relocation Payments Before Having to Vacate Due to An Owner Move-In or Relative Move-In Eviction?

Yes. Berkeley Municipal Code § 13.76.130(A)(9).

What Happens if the Landlord Rescinds the Owner Move-In or Relative Move-In Eviction Notice After Relocation Payments Have Been Distributed to the Tenant?

The Berkeley Rent Ordinance permits a landlord to rescind an owner move-in or relative move-in eviction notice before the tenant vacates their unit.  Berkeley Municipal Code § 13.76.130(A)(9)(p)(iv). If the landlord rescinds the termination of tenancy notice after the tenant(s) receive their relocation payment, the parties must enter into a written agreement stating that the tenants are allowed to remain in their home.  Id.  The tenants must return the relocation payment, less any monies already spent on relocation.  Id.  The tenants must provide the landlord with an accounting evidencing any amounts already spent for moving costs.  Id.  The tenants must assign to the landlord all rights to recover the expended amounts from third parties.  Id.

Following an Owner Move-In or Relative Move-In Eviction, How Long Can the Owner or Qualified Relative Wait Before Actually Moving In?

Under the Berkeley Rent Ordinance, the owner or qualified relative must move into the unit within three months from the date the tenant relinquished possession of the unit.  Berkeley Municipal Code § 13.76.130(A)(9)(i).

Can Owners Perform Owner Move-In Evictions on Multiple Units at a Single Property?

No, the Berkeley Rent Ordinance prohibits landlords from performing owner move-in evictions on multiple units at a single property.  Berkeley Municipal Code § 13.76.130(A)(9)(j).  Once a landlord performs an owner move-in eviction on a unit, that unit becomes the designated owner move-in unit forever.  Id.  Future owners are bound by this restriction.

Can Berkeley Landlords Perform Owner Move-In or Relative Move-In Evictions During the School Year?

No, a landlord may not perform an owner move-in or relative move-in eviction during the school year if any tenant has a custodial or family relationship with a minor residing in the unit.  Berkeley Municipal Code § 13.76.130(A)(9)(k).  The tenant with the custodial or family relationship with the minor must have resided in the unit for at least twelve months for this restriction to apply.  Id.  For purposes of this prohibition, the effective date of the notice must fall during the Berkeley Unified School District school year.  Id.

Under the Berkeley Rent Ordinance, custodial relationship means a person who:

  1. Is the legal guardian of a child;
  2. Has a caregiver’s authorization affidavit for the child, as defined by California Family Code section 6550;
  3. Provides full-time custodial care to the child per an agreement with the child’s legal guardian; or,
  4. Has been appointed by the court as a caregiver and has been providing that care for at least one year, or half of the child’s lifetime, whichever less. Id.

Under the Berkeley Rent Ordinance, family relationship means a person who is the biological or adoptive parent, grandparent, brother, sister, aunt, or uncle of the child, or the spouse or domestic partner of such people.  Id.

Following an Owner Move-In or Relative Move-In, Does the Tenant Have a Right of First Refusal?

Yes, after a landlord performs an owner move-in or relative move-in, the tenant must be given a right of first refusal to re-occupy the unit upon its next vacancy. Berkeley Municipal Code § 13.76.130(A)(9)(o).  This means that if the landlord or qualified relative ever move out, the landlord must contact the former tenant and offer the unit back.

My Landlord May Have Violated the Berkeley Rent Ordinance, Do I have a Claim?

Yes, you may have a claim for unlawful rent increase or wrongful eviction, which could entitle you to money damages.  Unscrupulous Berkeley landlords often increase rent to an amount in violation of Berkeley Rent Control, or in lieu of performing a Berkeley Ellis Act eviction, or Berkeley owner or relative move-in eviction.  Contact Astanehe Law to discuss the Berkeley Rent Ordinance, Berkeley Rent Control, or California Rent Control with an attorney today.