On Tuesday, March 10, 2020, Berkeley joined its southern neighbor, Oakland, California, in protecting tenants with conviction histories, by prohibiting landlords from asking prospective Berkeley tenants about their conviction history.  Berkeley’s new law, officially known as the Ronald V. Dellums Fair Chance Access to Housing and Public Health and Safety Ordinance, bans the box in housing. Berkeley’s new Fair Chance Housing Ordinance is codified at Berkeley Municipal Code Chapter 13.106.  Unscrupulous landlords who ignore the Berkeley Fair Chance Housing Ordinance face lawsuits carrying severe penalties.

Berkeley Units Covered by the Berkeley Fair Chance Housing Ordinance

The Berkeley Fair Chance Housing Ordinance covers all residential rental housing in Berkeley. Berkeley Municipal Code § 13.106.30(k). However, certain units are not covered by the Berkeley Fair Chance Housing Ordinance, including:

• Single-family homes where at least one owner occupies the home as their principal residence;
• Single-family homes with an accessory dwelling unit or cottage unit where either unit is occupied by at least one owner as their principal residence;
• Duplexes or triplexes where at least one owner occupies one of the units as their principal residence;
• Property owners renting their primary home while on sabbatical;
• Units in HUD assisted housing are partially exempted, to the extent they are complying with federal regulations requiring them to exclude certain tenants based on conviction history;
• Units rented to tenants where the owner seeks to recover the unit for their re-occupancy as their principal residence, and the owner has the right to re-occupy the unit in the existing lease agreement; and,
• Tenants renting rooms to cotenants or subtenants in the unit in which the tenant resides. Berkeley Municipal Code § 13.106.30(k).

Does the Berkeley Fair Chance Housing Ordinance Apply to Affordable Housing Units?

Yes, the Berkeley Fair Chance Ordinance covers Berkeley tenants and applicants in affordable housing units.  Berkeley Municipal Code § 13.106.050(D).  Affordable Housing units are any housing that has or is receiving government funding, tax credits, or other subsidies connected to developing, rehabilitating, restricting rents, subsidizing ownership, or otherwise providing rental housing to low income people.  Berkeley Municipal Code § 13.106.30(B).  However, landlords accepting tenant-based voucher programs are not providing affordable housing.  Id.  Units subject to the City of Berkeley’s Below Market-Rate Rental Housing Program are included. Id.

Does the Berkeley Fair Chance Housing Ordinance Ban the Box on Rental Applications?

Yes, the Berkeley Fair Chance Housing Ordinance bans the box by prohibiting landlords from asking applicants about their criminal history on initial rental applications or during the application process.  Berkeley Municipal Code § 13.106.040(A).  Additionally, landlords may not verbally ask about an applicant’s criminal history. This prohibition exists throughout the entire screening process.  Berkeley landlords are prohibited from discovering an applicant’s conviction history.

Does the Berkeley Fair Chance Housing Ordinance Ban Background Checks During the Renal Application Process?

Yes, the Berkeley Fair Chance Housing Ordinance bans initial background checks during the rental application process.  Berkeley Municipal Code § 13.106.040(A).  Landlords may not conduct a background check on prospective Berkeley tenants. This prohibition exists throughout the entire screening process. Berkeley landlords are prohibited from discovering an applicant’s conviction history.

Does the Berkeley Fair Chance Housing Ordinance Prohibit Berkeley Landlords from Discovering All Conviction History?

No, the Berkeley Fair Chance Housing Ordinance does not cover lifetime sex offenders.  Berkeley Municipal Code § 13.106.040(C). Berkeley landlords may review the California sex offender registry when screening applicants.  However, before being able to check the register lawfully, Berkeley landlords must:

• State its lifetime sex offender screening requirement in the written rental application;
• First determine that the applicant is qualified to rent the unit under the landlord’s other criteria;
• Provide a conditional rental agreement that commits the unit to the applicant as long as the applicant passes the landlord’s criminal history criteria; and,
• Inform the applicant in advance that it will check the sex offender registry. Berkeley Municipal Code § 13.106.040(C).

Additionally, the Berkeley Fair Chance Housing Ordinance permits certain landlords to conduct criminal background checks to comply with federal or state laws.  For example, public housing landlords may inquire into an Applicant’s conviction history as required by the Ineligibility of Dangerous Sex Offenders for Admission to Public Housing law (42 U.S.C. § 13663(a)) and the Ineligibility of Individuals Convicted for Manufacturing Methamphetamine on Premises of Federally Assisted Housing for Admission to Public Housing and Housing Choice Voucher Programs law (24 C.F.R. § 982.553).  Berkeley Municipal Code § 13.106.040(B).  However, the Berkeley Fair Chance Housing Ordinance requires the landlord to first comply with the following:

• Inform the applicant in advance that it will check for certain conviction history;
• Obtain the applicant’s written consent to the conviction history check; and,
• Inform the applicant that the landlord may be required to share the applicant’s conviction history with the City of Berkeley for Berkeley Fair Chance Housing Ordinance enforcement.

Any denial of housing may only be based on state and federal requirements.

After Lawfully Reviewing Conviction History, What Must Berkeley Landlords Provide an Applicant When Denying Housing?

As stated above, some Berkeley landlords are exempt from the Berkeley Fair Chance Housing Ordinance.  Additionally, Berkeley landlords may perform limited inquiries into an applicant or tenant’s conviction history, provided they comply with the law. Where a landlord is permitted to inquire into an applicant’s conviction history, and denies housing, the landlord must give the applicant a written notice containing the following information:

• The reason(s) for the housing denial, or other adverse action;
• Instructions on how to file a complaint about the housing denial with the City of Berkeley;
• A list of local legal service providers including contact information; and,
• A copy of the background check report or other information related to the applicant’s criminal history.  Berkeley Municipal Code § 13.106.050(E).

The applicant has an opportunity to respond with rebutting or mitigating information prior to the final denial of the housing application.  Id.

Berkeley Fair Chance Housing Ordinance’s Other Important Prohibitions

The Berkeley Fair Chance Housing Ordinance also mandates that covered landlords comply with the following requirements:

• Berkeley landlords cannot state in housing advertisements that they will refuse to consider a person with a conviction history;
• Include a City published multi-language notice informing applicants of their Berkeley Fair Chance Housing Ordinance rights in applicant materials, on websites, and in leasing offices;
• Maintain applicant criminal background checks for at least three years;
• Keep criminal history obtained confidential; and,
•  Affordable housing providers must submit an annual certificate of compliance with the Berkeley Fair Chance Housing Ordinance to the City of Berkeley.  Berkeley Municipal Code §§ 13.106.050, 13.106.070.

Can Berkeley Landlords Retaliate Against Berkeley Tenants & Applicants for Exercising Berkeley Fair Chance Housing Ordinance Rights?

No, landlord retaliation following a tenant or applicant exercising their Berkeley Fair Chance Housing Ordinance rights is prohibited.  Berkeley Municipal Code § 13.106.060.  Common Berkeley Fair Chance Housing Ordinance landlord retaliation examples include:

• Unjustifiably denying housing despite an applicant providing sufficient evidence that their prior conviction is not a valid bar to housing;
• Charging more rent to tenants with conviction histories;
• Requiring tenants with conviction history to pay a higher security deposit;
• Failing to permit a tenant’s family member to move into a unit due to conviction history;
• Denying housing following an applicant refusing to respond to a conviction history question on an application; and,
• Evicting a tenant who reports a landlord’s violation of the Berkeley Fair Chance Housing Ordinance to the City of Berkeley.

Can I Sue My Landlord for Violating the Berkeley Fair Chance Housing Ordinance?

Yes, Berkeley tenants and applicants can sue Berkeley landlords in court.  The Berkeley Fair Chance Housing Ordinance contains a private right of action.  Berkeley Municipal Code § 13.106.100(C).

Money Damages Available to Tenants & Applicants Under the Berkeley Fair Chance Housing Ordinance

Any person who suffers a rights violation or retaliation under the Berkeley Fair Chance Housing Ordinance may submit a complaint to the City of Berkeley or file a lawsuit in court. Berkeley Municipal Code § 13.106.100. Further, tenants and applicants who believe a close family member had their Berkeley Fair Chance Housing Ordinance rights violated may submit a complaint to the City of Berkeley or file a lawsuit in court.  Berkeley Municipal Code § 13.106.30(D).  Under the Berkeley Fair Chance Ordinance, close family members are spouses, registered domestic partners, children, siblings, parents, grandparents, and grandchildren. Berkeley Municipal Code § 13.106.30(H).

Upon filing a civil lawsuit, an aggrieved person is entitled to recover actual damages, including emotional distress damages, or statutory damages of three times one months’ rent.  Berkeley Municipal Code § 13.106.100(D).  Actual damages are trebled where the landlord acts in knowing violation of or reckless disregard of the Berkeley Fair Chance Housing Ordinance.  Id.  Punitive damages are awarded where the landlord’s violation was committed with oppression, fraud, or malice.  Berkeley Municipal Code § 13.106.100(C).  Further, the prevailing party can recover their attorney fees and court costs.  Id.

No Upfront Cost for Berkeley Fair Chance Housing Ordinance Lawsuit

Astanehe Law will not charge you any fees or costs until after you obtain a successful settlement or judgment.  Astanehe Law offers contingency representation, which means there is no upfront cost in securing legal representation.

Astanehe Law Knows Tenants Rights

Michael M. Astanehe possesses a zeal for helping tenants bring claims against their landlord. Mr. Astanehe is an aggressive litigator with several years of civil litigation experience. He is willing to take your case to trial if necessary. This ferocity ensures that Astanehe Law will obtain the highest recovery possible for each client.

Litigation is stressful. To that end, Mr. Astanehe provides each client with comprehensive legal service so that they remain fully informed and comfortable throughout the process. Astanehe Law strives to make litigation as stress-free as possible.

To discuss the Berkeley Fair Chance Housing Ordinance, Berkeley Rent Control, or California Rent Control (AB 1482), contact Astanehe Law to speak with an attorney today.

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