Legal • April 1, 2005
Landlord / Tenant 101: Owner Move-Ins
By David Wilson
Some years ago a court decided that local rent control laws went too far when they were used to keep owners from moving into their own property. There were lots of common sense examples of unfairness: a family on sabbatical rents its home to someone who refuses to move out when the owners return; a landlord who wants to provide housing for an aged parent or child, but the existing tenant balks; a landlord couple wishing to downsize, and to move from a larger home into smaller quarters. In all of these cases some local rent control laws protected existing tenants and barred landlords from moving in.
After the courts declared these local laws unconstitutional, the state legislature passed the Ellis Act, assuring Owner move-in rights. Berkeley’s rent control advocates then counter-punched with Measure Y, which you can find in Section 13.76.130 of the Ordinances which are accessible through the Rent Board’s website.
In this writer’s view, Measure Y is draconian, and most likely contrary to the rationale of the court decisions that led to the Ellis Act. Nonetheless, you should be familiar with the Ordinance if you are thinking about moving yourself or your family into any unit that you now rent to a third party. Effectively, Measure Y will not let you do this unless you can fulfill multiple preconditions, and work yourself through a legal rats-nest. Thus:
§ First, you should realize that the law on move-ins does not apply only to registered, rent-controlled units. It applies to virtually any residential property that is currently occupied by a third party, single family homes and condominia included.
§ Second, you should know that you may exercise your move-in right only once on the property concerned. Once there has been one such move-in you and all successive landlords are barred from another move-in, no matter how well-intentioned you may be.
§ Third, when you exercise a move-in right, you must own a 50% or greater interest in the property, and you must be prepared to live there for at least thirty six months. It must become your principle residence, or that of your child or parent.
§ Fourth, you must be prepared to make available to your tenant any vacant “comparable unit” in Berkeley in which you have an interest. The rent may not be higher than what the tenant is now paying unless the vacant unit is demonstrably superior.
§ Fifth, you must pay a low income tenant $4500 in “relocation assistance”. “low income is defined as making less than $46,350 per year for an individual and higher amounts where more than one person occupies the unit. We need not note that Berkeley is filled with students and trust fund babies who would easily qualify as “low income”, though you wouldn’t know it from their standard of living.
§ Sixth, you shouldn’t even think about an owner move-in if the tenant has been there for five years or more, or is disabled, or is more than 60 years old. There are exceptions to these rules, and exceptions to the exceptions, all written into the Ordinance. But unless the situation is dire, an already difficult eviction would likely become impossible if the tenant is in one of these protected classes.
Procedurally, all of the above is judged in the context of the eviction proceeding before a court. But given the obstacles, there are in fact few contested owner move-ins in Berkeley. Where Owners wish to occupy their own property, they wait for a vacancy to occur in the ordinary course, or they come to a private understanding with the tenant.
Should things get out of control, however, the matter goes to a judge. And with the right case, and an adventurous court, the law itself would come into question.