CHAPTER 1. TITLE

101 - 199 (RESERVED)

CHAPTER 2. FINDINGS

201 - 299 (RESERVED)

301 - 304       (RESERVED)
305             Effect of Substantial Compliance on Penalties and Sanctions
306 - 399       (RESERVED)

305. Effect of Substantial Compliance on Penalties and Other Sanctions

Notwithstanding any other provision in the Regulation, no penalty or other sanction shall be assessed against a landlord for noncompliance with a provision of the Ordinance or Regulations if the landlord is in substantial compliance with the provision. As used in this Regulation, substantial compliance means:

(A) The landlord has made a good faith effort to comply with the provision of the Ordinance or Regulation sufficient to carry out the intent and purpose of the Ordinance or Regulation; and

(B) The landlord has cured any defect in compliance with the provision of the Ordinance or Regulation in a timely manner after receiving notice of a deficiency from the Board.

[Effective date of Section 305: 11/21/86]

306 - 399 (RESERVED)

401             Housing Services in Group Living Arrangements; definition
402             Rental Unit Occupied by a Group Living Arrangement; definition
403 - 499       (RESERVED)

The purpose of this regulation is to clarify the definition of "housing services" as that term is used in Berkeley Municipal Code 13.76.040.C when such housing services exist in a rental unit occupied by a group living arrangement as defined in Regulation 555. In such a rental unit, housing services shall include all such services provided by the owner or landlord to the unit or residents of the unit. Housing services do not include services provided by residents to other residents if there is no landlord-tenant relationship between any of the residents. Housing services also do not include services provided by someone other than the owner or landlord if the residents have mutually agreed to share the expenses of such services and no landlord-tenant relationship exists between any of the residents.

[Effective December 28, 1983]

402. Rental Unit Occupied by a Group Living Arrangement (definition)

For the purposes of Regulations 401, 555, 802 and 1003, a "rental unit" is a dwelling unit providing complete, independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation. Each dwelling unit which contains such independent living facilities is a separate unit notwithstanding the fact that the same group living arrangement may occupy more than one unit.

[Effective December 28, 1983]

403 - 499 (RESERVED)

501 - 549       (RESERVED)
550             Definition of Principal Residence
551             Transient Units
552             Non-transient Units
553             Changes in Status
554             Posting of Rents
555             Group Living Arrangement; definition
556             Group Living Arrangement of an Institution of Higher Education; definition
557             Institution of Higher Education; definition
558             Dormitory of an Institution of Higher Education; definition
559 - 565       Exemptions
566 - 599       (RESERVED)

550. Definition of Principal Residence

Principal residence, as used in Sections 5(f) and 5(g) of the Ordinance, is that dwelling place where the person actually resides a majority of the time. For the purpose of this Ordinance, a person may have only one principal residence.

In the determination as to the principal residence status of the dwelling place, the following factors shall be considered:

(A) whether the person carries on basic living activities at the dwelling place;

(B) whether the person maintains another dwelling and, if so, the amount of time that the person spends at each dwelling place;

(C) whether the person has filed for and obtained a homeowner's exemption for the dwelling place;

(D) whether the person is a registered voter at the dwelling place;

(E) other relevant factors.

[Effective Date: 11/26/80.]

551. Transient Units

A rental unit in an establishment such as a hotel, motel, inn, tourist home, or rooming or boarding house, shall be presumed to be rented primarily to transient guests and exempted from the Ordinance if all of the following facts exist:

(A) The establishment is properly licensed as a hotel, motel, inn, tourist home, rooming or boarding house, or similar establishment and said usage is lawful under the zoning laws of the City of Berkeley;

(B) The unit has been continuously occupied by its current occupant(s) for less than 14 days;

(C) The current occupant(s) of the unit have continuously resided in the property for less than 14 days. For purposes of this regulation, the term property shall be defined as set forth in Section 4(h) of the Ordinance;

(D) The occupancy is subject to the hotel tax; and

(E) The unit has been occupied by persons described in (B) through (D) above, for at least 184 days in the 12-month period immediately preceding September 1 of each year and/or has been vacant and available for rent to transient guests for 184 days.

[Effective Date: October 27, 1982]

552. Non-Transient Units

A rental unit in an establishment such as a hotel, motel, inn, tourist home, or rooming or boarding house, shall be presumed to be rented primarily to non-transients and subject to the provisions of the Ordinance if:

(A) The occupancy is not subject to the hotel tax; or

(B) The current resident(s) have continuously resided in any unit on the property for at least 14 days.

[Effective Date: October 27, 1982]

553. Changes in Status

If a unit becomes subject to the provisions of the Ordinance by virtue of Regulation 552, it shall be registered within 60 days as set forth in Section 8(i) of the Ordinance. If thereafter the unit becomes vacant and is rented to a transient, it shall be exempt for the period of time of such transient occupancy.

During such period of exemption, the provisions of the Ordinance relating to limitations on rents and eviction controls shall not apply. When the unit is again occupied by a nontransient, the rent must revert to the level which would have been lawful under the Ordinance had the unit continuously been occupied by a nontransient. A unit which is subject to the Ordinance need only be registered once each year regardless of the number of times its status changes.

[Effective Date: October 27, 1982]

554. Posting of Rents

The maximum lawful rent for non-transient occupancy shall be posted in a readily visible place in each unit subject to registration by virtue of these regulations. Such posting shall be done on a form approved or provided by the Board.

[Effective Date: October 27, 1982]

555. Group Living Arrangement (definition)

For the purposes of Regulations 401, 402, 820 and 1003, a "group living arrangement," other than a group living arrangement of an institution of higher education, is a situation in which a covered rental unit is rented or available for rent by two or more persons who share a common household including the use of common kitchen and bath facilities and, where rights of access to the various portions of the rental unit are determined by mutual agreement among the residents. An establishment such as a hotel, motel, inn, tourist home, rooming house, boarding house or dormitory, other than a dormitory of an institution of higher education, is not a group living arrangement notwithstanding the fact that the residents of the establishment may share common eating, cooking or sanitation facilities.

[Effective Date: December 28, 1983; amended May 9, 1984]

556. Group Living Arrangement of an Institution of Higher Education (definition)

For the purposes of Regulations 401, 802 and 1003, a dormitory of an institution of higher education shall constitute a group living arrangement.

[Effective May 9, 1984]

557. Institution of Higher Education (definition)

For the purposes of Regulations 555, 556, and 558, a "dormitory of an institution of higher education" is a post-secondary educational institution which is not operated for profit and is accredited by a national accrediting agency recognized by the United States Department of Education.

[Effective Date: May 9, 1984]

558. Dormitory of an Institution of Higher Education (definition)

For the purposes of Regulations 555, 556, and 558, a "dormitory of an institution of higher education" is a rental unit owned and operated by an institution of higher education for occupancy by students, faculty, administrators, or others affiliated with the institution, and which is rented or available for rent by two or more persons who share a common household including the use of common living and bath facilities.

[Effective Date: May 9, 1984]

559. Exemption

The landlord of any rental unit which is claimed to be exempted from the provisions of the ordinance by virtue of Section 5 shall inform the Board of the nature of the claimed exemption and the specific facts upon which the landlord relies in support of the exemption. The landlord shall supply such further information and documentation as the Program Chief or his or her designee may require to investigate and verify the claimed exemption. The landlord and all tenants of unit shall be notified in writing of the exemption determination.

[Effective Date: May 23, 1984]

560. Exemption If the Program Chief, or his or her designee, determines that the unit is subject to the ordinance and the landlord disagrees, the landlord may within 15 days of the determination, file a request for hearing on exemption status. The hearing shall be conducted in accordance with the rules for hearing regarding nonregistration of units.

[Effective Date: May 23, 1984]

561. Exemption

The tenant of a unit which has been determined to be exempt by the Program Chief, or his or her designee, may at anytime obtain review of the unit's exemption status by filing a tenant petition for rent withholding for non-registration. Such a petition shall not be granted if the property was previously held to be exempt after a landlord-initiated hearing on exemption status was held unless it can be shown that there has been a material change in the facts after the first hearing was held, or that the information supplied by the landlord in support of the exemption was false.

[Effective Date: May 23, 1984]

562. Exemption

Where the claimed exemption is based upon the grounds set forth in Ordinance Section 5.1., c., e., f. and g., the exemption need not be claimed or verified each year. However, if the facts which give rise to the exemption cease to exist, the landlord shall register the unit in accordance with Section 8.i. of the Ordinance within 60 days after the unit becomes subject to the Ordinance.

[Effective Date: May 23, 1984]

563. Exemption

Where the claimed exemption is based upon Section 5.b. or d., the exemption must be claimed and verified on an annual basis.

[Effective Date: May 23, 1984]

564. Exemption

Where the claimed exemption is based upon Section 5.i., the exempt status of the unit need only be claimed and verified once.

[Effective Date: May 23, 1984]

565. Exemption

Nothing in this regulation shall prevent the Program Chief or designee investigating and reviewing the status of any unit claimed to be exempt or previously found to be exempt if there is reason to believe that the claimed exemption is not supported by the facts or has been obtained as a result of falsely supplied information.

[Effective Date: May 23, 1984]

566 - 599 (RESERVED)

601 - 603       Adoption, Amendment and Repeal of Regulations
604             (RESERVED)
605             Hearing
606             (RESERVED)
607             Publications
608             Emergency Regulations and Orders of Repeal
609 - 630       (RESERVED)
631             Effective Date of Rules and Regulations
632             Application of New Regulations and Amendments to Existing Regulations to Actions Pending Before the Board
633 - 689       (RESERVED)
690             Litigation by Commissioner
691 - 699       (RESERVED)

It is the purpose of this article to establish basic minimum procedural requirements for adoption, amendment or repeal of Rent Stabilization Board Regulations. The provisions of this article shall not be superseded or modified by any subsequently adopted regulation except to the extent that such regulation shall do so expressly.

602. First and Second Readings and Effective Date of Regulation or Repeal

(A) There shall be a first and second reading of all proposed regulations and orders of repeal. At any meeting at which a proposed regulation has been placed on the agenda for second reading, the Board may adopt, amend, or repeal the regulation. Except as provided in Regulation 608, a regulation of an order or repeal shall become effective upon publication under Regulation 607 unless a later date is prescribed in the regulation or order. This subsection shall not apply to the adoption of any Annual General Adjustment.

(B) Prior to the first or second reading, the Board may make changes to a proposed regulation and may adopt the proposed regulation with the changes following the second reading without having to notice additional readings of the proposed regulation.

[Revised Regulation 603 effective April 19, 1991.]

603. Notice of Proposed Action

For any proposed revision of a regulation which the Board, in its discretion, determines that public comment should be solicited, the Board may direct that notice of the proposed revisions be given in the following manner:

(A) Mailed to every person who has filed a written request for notice of regulatory actions with the Board.

(B) When appropriate in the judgment of the Board, mailed to any person or group of persons whom the Board believes to be interested in the proposed action.

(C) Published in one or more newspapers serving the City of Berkeley in such form and manner as the Board shall prescribe.

The failure to mail notice to any person as provided in this section shall not invalidate any action taken by the Board pursuant to this article.

[Revised Regulation 603 effective April 19, 1991.]

604. (RESERVED)

[Regulation 604 deleted effective April 19, 1991.]

605. Hearing

The Board may, in its discretion, choose to hold a formal or informal public hearing concerning proposed adoption, amendment or repeal of a regulation. If a public hearing is held, statements, arguments, or contentions, either oral or in writing, or both shall be permitted. If the Board elects not to hold a public hearing, Board may, afford any interested person or his or her duly authorized representative, the opportunity to present statements, arguments or contentions in writing.

[Revised Regulation 605 effective April 19, 1991.]

606. (RESERVED)

[Regulation 606 deleted effective April 19, 1991.]

607. Publication of Regulations

Within five (5) business days of the adoption, amendment or repeal of any regulation, the Board shall cause to be published in one or more newspapers serving the City of Berkeley, a concise summary of the regulation or repeal order. The Board may, in its discretion, cause the entire text of the regulation or repeal order to be published.

608. Emergency Regulations and Orders of Repeal

(A) The provisions of Regulations 602 through 606 shall not apply to an emergency regulation or order of repeal adopted pursuant to this subdivision.

(B) If the Board makes a finding that the adoption of a regulation or order of repeal is necessary for the immediate preservation of public peace, health and safety or general welfare, the regulation or order of repeal may be adopted as an emergency regulation or order of repeal. Any finding of an emergency shall include a written statement which contains a description of the specific facts showing the need for immediate action. The enactment of an urgency statute or ordinance shall not, in and of itself, constitute a need for immediate action.

(C) The emergency regulation or order of repeal shall become effective upon adoption by the Board notwithstanding the provisions of Regulation 602 or upon any later date specified by the Board as part of the regulation or order of repeal.

(D) No regulation or order of repeal adopted as an emergency action shall remain in effect for more than 180 days unless the Board has complied with Regulations 602 through 605, inclusive, prior to the adoption of the emergency regulation or order of repeal, or has, within the 180 day period, completed the regulation adoption or repeal process by formally adopting the emergency regulation or order of repeal or any amendments thereto, pursuant to the provisions of Regulations 602 through 605.

(E) In the event an emergency regulation is adopted as an amendment to an existing regulation, upon failure of the Board to comply with subdivision (D), above, the regulation as it existed prior to such emergency amendment shall thereupon become effective.

(F) In the event a regulation is originally adopted as an emergency regulation and the Board fails to comply with subdivision (d), above, such failure shall constitute repeal of said regulation.

(G) In the event an order of repeal is originally adopted as an emergency order of repeal and the Board fails to comply with subdivision (D), above, the regulation as it existed prior to such emergency order of repeal shall thereupon become effective.

(H) The Board shall make reasonable efforts to notify the public and local media of the pendency of any emergency regulation or order of repeal prior to the adoption thereof.

[Revised Regulation 608 effective April 19, 1991.]

609 - 630 (RESERVED)

[Regulation 630 deleted effective April 19, 1991.]

631. Effective Date of Rules and Regulations

Rules and regulations adopted by the Board shall become effective on the date of publication under Regulation 607, unless a later date is specified by the Board.

[Revised Regulation 631 effective April 19, 1991.]

632. Application of New Regulations and Amendments to Existing Regulations to Actions Pending Before the Board

Unless otherwise stated, all newly adopted regulations and amendments to existing regulations shall apply to all petitions and appeals pending before the Board at the time of adoption or amendment.

[Effective April 10, 1992.]

633 - 689 (RESERVED)

690. Litigation by Commissioner

(A) Litigation v. Rent Stabilization and Eviction for Good Cause Ordinance. Any Commissioner of the Berkeley Rent Stabilization Board who is a plaintiff or petitioner in any court action challenging the validity or seeking to enjoin the enforcement of any part of the Rent Stabilization and Eviction for Good Cause Ordinance shall be deemed to have breached his or her public trust of office and to have thereby faithfully indicated an inability to faithfully discharge her or his duties and responsibilities as a Commissioner.

(B) Suspension. Upon a finding by the Board that any member is a plaintiff or petitioner in any court action prohibited by this rule, the Board shall immediately suspend said Commissioner from the Board, with such suspension subject to review and rescission by the City Council. If the suspended Commissioner is not present when the Board suspends, said Commissioner shall be promptly notified in writing of said suspension.

(C) Right to Hearing. Any Commissioner suspended pursuant to this rule has a right to request in writing a hearing before the Board, at which the suspended Commissioner may ask the Board to reinstate said Commissioner or rescind the suspension. The hearing shall be held within 15 days of receipt of the written request, and a final decision shall be made within 15 days of the hearing. The Board shall make every effort to expedite the hearing process by holding the hearing at its earliest opportunity at the request of the suspended Commissioner, particularly where the litigation status of the suspended Commissioner is the reason for the request for reinstatement. At the hearing, the suspended Commissioner shall have the right to be represented by counsel or a representative, to present evidence and make arguments.

(D) Rescission of Suspension. If, after the hearing, or at any subsequent hearing, the Board concludes that it incorrectly found that the suspended Commissioner was a plaintiff or petitioner to a court action prohibited by this rule, the Board shall immediately rescind the suspension.

(E) Reinstatement. If, after the hearing, or at any subsequent hearing, the Board finds that the suspended Commissioner is no longer a plaintiff or petitioner to any such prohibited court action, and that said Commissioner will be able to faithfully discharge the duties and responsibilities of being a Rent Stabilization Board Commissioner, the Board shall reinstate said member. In making this determination, the Board shall consider all evidence and factors relevant to said Commissioner's involvement in the litigation.

(F) Plaintiff or Petitioner. For purposes of this rule, a Commissioner shall be deemed to be a plaintiff or petitioner to a court action if the Commissioner is:

(1) a named plaintiff or petitioner;
(2) a general partner in a partnership which is named plaintiff or petitioner;
(3) an officer or director in a corporation or unincorporated association which is a named plaintiff or petitioner; or
(4) a trustee of a trust which is a named plaintiff or petitioner.

(G) Effective Date. This rule shall take effect immediately upon approval by a majority of the Board and the City Council after it is publicized by the Board.

[Effective Date: November 3, 1980.]

[Original policy adopted 9/30/80. Modified and approved by City of Berkeley Council on 10/14/80. Adopted by the Board on October 29, 1980.]

691 - 699 (RESERVED)