Subchapter A-1. Board Authorization of Tenant Rent Withholding
Sections 1501 - 1509: Procedures Applicable to All Rent Withholding Proceedings
1501 Petitions for Rent Withholding 1502 Definitions 1503 Notice of Hearing 1504 Consolidation 1505 Continuances 1506 Evidence 1507 Quantum of Proof 1508 Board Action in lieu of Tenant Petition 1509 Appeal (Reversed 10/7/85) 1510-1525 (RESERVED)Sections 1526 - 1531. Failure to Register
1526 Petition Filing Fee
1527 Failure to Register
(Revised 7/13/83; revised in entirety 3/3/86)
1528 Compliance with Registration Requirements before
Hearing
1529 Decision (Revised 7/13/83)
1530 Compliance after Hearing
1531 Right to retain Withheld Rent (Revised 7/13/83)
1532 - 1540 (RESERVED)
Sections 1541 - 1546. Violation of Rent Ceilings
1541 Petition Filing Fee (Revised 10/7/85) 1542 Notice After Petition Filed 1543 Violation of Rent Ceilings 1544 Effect on Rent Adjustment Petitions 1545 Decision (Revised 3/3/86 and 11/21/86) 1546 Standards for Determining Lawful Rent Ceilings and Refund Orders 1547 - 1555 (RESERVED)Subchapter A-2. Tenant Rent Withholding Without Board Authorization.
1556 Construction of Remedy 1557 - 1565 (RESERVED)
1566 Good Faith of Landlord 1567-1599 (RESERVED)
1501 - 1509. Procedures Applicable to All Rent Withholding Proceedings
Any tenant seeking Board authorization for rent withholding pursuant to Section 15.a(1) of the Rent Stabilization Ordinance shall file a petition on a form provided by Board staff. A hearing on such petition shall be held by the Board or hearing examiner, including the Senior Hearing Examiner.
[Effective Date: 12/10/80; Amended 6/10/8l]
(A) Board.
For the purpose of this subchapter, the word 'Board' shall mean either the Rent Stabilization Board or the Director/Board Secretary, except for Sections 1501, 1506, 1509(a), (c) and (d), 1529 and 1545 in which it shall mean only the Rent Stabilization Board or a hearing examiner.
(B) Parties.
The parties shall be the parties named in the petition unless the Board finds good cause otherwise.
(A) Notice of the time, date and place of the hearing shall be mailed to all parties at least 10 days before the scheduled date of the hearing, and in the case of a petition for a rent ceiling violation(s) no less than twenty (20) days shall pass from the date of mailing by the Board of a notice of a petition being filed pursuant to Section 1542 to the date of the hearing. The hearing on the petition shall be held no later than 45 days after the receipt of the petition, except pursuant to Section 1505.
(B) The notice shall also include the following information:
(2) Name(s) of the petitioner(s);
(3) Summary of the findings of the Board investigation regarding the petition;
(4) Actions the landlord must take to register, or comply with the rent ceiling;
(5) Penalties for continued non-compliance.
[Effective Date: 12/10/80 (formerly numbered 1504); Amended and Recodified: 6/10/81]
The Board may consolidate the petitions filed by tenant(s) occupying the same building or buildings owned by the same landlord for the hearing.
[Effective Date: 12/10/80 (formerly number 1505; Recodified: 6/10/81]
The Board, on its own motion, or upon written request from any of the parties, may for good cause continue the date of the hearing for a reasonable time, not to exceed 45 days.
All parties shall be notified of the continued hearing date. The parties may also file a written stipulation continuing the date of the hearing after confirming an alternative date acceptable to the Board.
[Effective Date: 12/10/80 (formerly numbered 1506); Recodified 6/10/81]
The Board need not conduct the hearing according to technical rules of evidence. Any relevant evidence may be considered if its is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. The Board may exclude unduly repetitious or irrelevant evidence.
[Effective Date: 12/10/80 (formerly number 1508); Recodified 6/10/81]
No petition for rent withholding shall be granted unless supported by the preponderance of the evidence.
[Effective Date: 12/10/80 (Formerly numbered 1509); Recodified 6/10/81]
The Board, in lieu of a tenant petition pursuant to Section 1501, may initiate the rent withholding authorization process pursuant to this subchapter.
[Effective Date: 12/10/80 (formerly numbered 1513); Recodified 6/10/81]
(A) Any party may appeal a decision by a hearing examiner under this subchapter to a Board Appeals Panel established pursuant to Section 1242(B) of these regulations. On appeal, the Board panel may affirm, reverse, remand or modify the decision of the hearing examiner. The Board panel may conduct a new hearing or may act on the basis of the official record without holding a hearing. The decision of the panel shall be the final decision of the Board. The Board or staff shall send a notice of the Appeals Panel decision to all parties to the appeal, which shall include a statement of their right to judicial review.
(B) Any appeal shall be filed on a form provided by the Board no later than thirty (30) days after mailing of the notice of the hearing examiner's decision. Notice of the appeal shall be sent to the opposing party(ies) and notice of any new hearing shall be sent to all parties pursuant to Section 1503(A). The Board may order that appeals relating to the same building or buildings owned by the same landlord be consolidated.
(C) At the time of filing the appeal, appellant(s) shall pay an appeal fee in the amount of ($50). The appeal fee may be waived in accordance with Section 1204. Part or all of the appeal fee may be refunded by the Board to a successful appellant.
(D) The hearing examiner's decision shall not be stayed pending appeal. If the Board panel reverses or modifies the hearing examiner's decision, the panel shall order the appropriate party to make retroactive payments over a reasonably appropriate period to restore the parties to the position they would have occupied had the examiner's decision been the same as that of the panel.
[Effective Date: 6/10/81. Subsection (C) revised 10/7/85]
No fee shall be charged for the filing of a petition for rent withholding for failure to register.
[Effective Date: 12/10/80 (formerly numbered 1503); recodified: 6/10/81]
In determining whether a unit(s) is(are) registered for the purposes of this regulation, the Board shall apply the criteria for substantial compliance specified in Regulation 801(G).
[Revised in entirety effective 3/3/86]
If the Board determines that the landlord has registered the subject unit before the hearing, the petition shall be dismissed and all parties notified of the dismissal.
[Effective Date: 12/10/80 (formerly numbered 1507); recodified: 6/10/81]
(A) At the conclusion of the hearing, if the Board determines that the landlord has willfully and knowingly failed to register the subject unit, the Board shall order authorization to the petitioning tenant(s) to withhold payment of rent beginning with the next regularly scheduled rent payment after the effective date of the order, until such time as all covered units on the property are registered.
(B) The rent withholding order shall become effective 15 days following the date on which it is mailed to the parties by the Board.
(C) Notice of the Board's order, including findings of fact and law, shall be sent to all parties.
[Effective Date: 12/10/80 (formerly numbered 1510; Recodified: 6/10/81; latest revisions adopted 7/13/83]
Upon registration of the subject unit(s), the Board shall dissolve the rent withholding order and promptly notify all parties. Upon notification by the Board that the landlord has registered, the tenant(s) shall resume regular rent payments beginning with the next regularly scheduled rent payment due after the date of registration. In addition, the tenant shall, within ten days of notification by the Board, pay to the landlord rent withheld according to the schedule set out in Section 1531.
[Effective Date: 12/10/80 (formerly number 1511); Amended and Recodified: 6/10/81]
If the landlord fails to register on or before the effective date of the order, the tenant(s) may retain rent withheld pursuant to this subchapter according to the following subsections:
(B) If the landlord has not registered within 60 days of the effective date of the rent withholding order, the tenant(s) may keep all of the rent withheld pursuant to the order to the date on which the landlord registers.
[Effective Date: 12/10/80 (formerly numbered 1512; Recodified: 6/10/81; latest revisions adopted 7/13/83]
(A) A fee of ten dollars ($10) per unit, up to a maximum of one hundred dollars ($100) shall be paid at the time a petition for violation of rent ceilings is submitted to the Board.
(B) The petition filing fee established by this section shall be waived for any petitioners who meet the requirements set forth in Section 1204 of these regulations.
(C) The landlord may be ordered to pay to the tenant the petition filing fee, pursuant to the provisions of Section 1545(E) of these regulations.
[Effective Date: 6/10/81; revised (A) 10/7/85]
The Board shall notify the opposing party(ies) of the filing of a petition and send each opposing party a copy thereof and a brief description of the hearing process.
[Effective Date: 6/10/81]
A landlord is deemed to violate the rent ceiling if the landlord, on or after June 29, 1980, demands, accepts, receives or retains payment in excess of the maximum allowable rent permitted by the Rent Stabilization Board Ordinance and Regulations.
[Effective Date: 6/10/81]
The filing or pendency of a petition for rent withholding for rent ceiling violations may be good cause for an extension of time for decision on such a rent adjustment petition, pursuant to Section 1243, pending disposition of the rent withholding petition.
[Effective Date: 6/10/81]
(A) Findings
After the hearing, the Board shall make the following findings for each unit involved in the petition:
(2) the maximum lawful rent on the date the petition was filed; and
(3) the amount of rent illegally demanded and retained, if any.
(B) Authorization of Rent Withholding
If the Board determines that the landlord is in violation of the rent ceilings, the Board shall order authorization to the petitioning tenant(s) to withhold payment of all or a portion of the rent, beginning with the next regularly scheduled rent payment after the date of the order. Such authorization shall remain in effect until such time as the landlord ceases to demand, receive, or accept rent in excess of the maximum lawful rent ceiling, and the tenant has recovered all rent payments made by the tenant which have been illegally retained by the landlord.
(C) Refund Order
If the Board determines that the landlord is in violation of the rent ceilings, the Board shall also order the landlord:
(2) to refund to the tenant(s) of the affected unit that portion of the rent payments made by such tenant(s) which have been illegally retained by the landlord; and
(3) to make reasonable efforts to find any former tenant(s) from whom illegal rent payments were retained by the landlord and refund such overcharges, and to notify the Board or Board staff in writing of the nature, extent and result of these efforts within 60 days of the overcharge refund order. If the landlord does not refund any past overcharges retained from such former tenant(s) within 60 days, or has made reasonable but unsuccessful efforts to locate such former tenant(s), then the landlord shall be ordered to pay the overcharge over an appropriate period of time to a Housing Assistance Fund, which shall be used to benefit low and moderate income tenants in the City of Berkeley and which shall be administered by the Rent Stabilization Board.
(D) Filing Fee Payment
If the hearing examiner determines that a violation of the rent ceiling did exist for a unit at the time the petition for rent withholding for that unit was filed, the landlord shall be ordered to pay to the tenant of that unit the full amount of the petition filing fee for that unit. In such a case, the tenant shall be authorized to withhold and retain the cost of the petition filing fee from the next rental payment, if the landlord does not pay the amount to the tenant before the next payment is due.
(E) Notice
Notice of the hearing examiner's order, including findings of fact and law, shall be sent to all parties.
(A) Violation of Base Rent Ceiling
If the lawful base rent ceiling is in dispute, it shall be computed in accordance with Section 10 of the Ordinance (BMC Sec.13.76.100). If the lawful base rent ceiling is determined to be less than the rent actually charged by the landlord on May 31, 1980 (or on the date set forth in Section 10 of the Ordinance (BMC Sec. 13.76.100) for the determination of lawful base rent ceilings) as a result of the landlord's violations of Measure I or Ordinance No. 5212-N.S., the lawful rent ceiling for each year since the enactment of the Ordinance shall be computed by taking the lawful base rent ceiling for the unit and adjusting it by the amount of any annual general adjustment for which the landlord was otherwise eligible.
B. Rent Ceiling Violation Resulting from Collection of Excess Rent
If the landlord establishes that the collection of rent in excess of the lawful rent ceiling resulted from a good faith error by the landlord, the lawful rent ceilings shall be calculated to include any Annual General Adjustments for which the landlord would have been otherwise eligible if the landlord had not charged excess rent. A landlord who asserts that his/her violation of the lawful rent ceiling resulted from a good faith error shall have the burden of proof as to this issue.
C. Rent Ceiling Violations Resulting from Non-Registration
If the landlord establishes that the failure to register his or her property with the Board resulted from a good faith error by the landlord, the lawful rent ceilings shall be calculated to include any annual general adjustments for which the landlord would have been otherwise eligible if the landlord has timely registered his or her property. The landlord who asserts that his/her non-registration resulted from a good faith error shall have the burden of proof as to this issue.
D. This regulation shall apply to all petitions administratively pending or filed after the effective date of the regulation.
[Revised Regulation 1546 effective July 5, 1991]
[Effective Date: 9/24/80 (formerly numbered 1550); Recodified: 6/10/81]
Regulation 1380(B) and (C) shall apply to interpret the good faith of the landlord for purposes of Ordinance Section 15(b).
[Effective Date: 3/25/81 (formerly numbered 1560); Recodified: 6/10/81]