Public Comment

For the last several years, the City rent board has made it a top priority to extend a rent control concept called “Just Cause” to certain owner-occupied homes, basically all those where State law does not preclude regulation.. I will seek in this op-ed to describe how “Just Cause” works, and the implications for owner occupied properties.

This year the rent board placed a draft ballot summary before City Council that somewhat mysteriously promises to “provide eviction protection.” While “eviction protection” sounds great, I oppose the proposed ballot measure's approach deeply, and wish to illustrate several potential unintended consequences. In short the measure proposes “lifetime leases” for certain owner-occupied properties. On balance I will argue this is bad for owners, bad for renters, bad for those currently unable to afford to rent or buy, and bad for future ADU or small time owned rental housing production. Imposing lifetime leases on owner occupants will fundamentally alter the incentives of such rentals, to the overall detriment of what’s now a vibrant source of interesting, inclusive, and diverse housing.

I have first-hand experience with how this affects homeowners. 

In 1997, my parents had a three-month gap where my old bedroom, occasionally used as a guest room, would be empty. Usually, when the room was available, they posted in the UC Berkeley housing office, offering month-to-month student rentals. An older alum answered the ad, agreeing to a three-month stay. As they later learned: because the room had a hot plate, it was protected under “Just Cause,” and the renter stayed for 25 years. 

My parents not only lost their guest bedroom and a measure of privacy for decades, but they also lost their age-in-place plan, which had been to move into the smaller guest area and rent the rest. When the time came, the renter would not budge under any reasonable circumstances. 

Later, when my mom was deeply ill with cancer, there was no way to relocate her to the ground floor or build a wheelchair ramp. And while the renter never exceeded a threshold of illegality, he became difficult to live with and slept late each morning. He complained bitterly – calling or thumping on the ceiling with a broomstick – if it was too noisy too early for his liking. 

Under “Just Cause,” the renter retained possession despite being years in arrears on rent, and despite multiple rent board negotiated opportunities to transfer to subsidized senior housing. Under “Just Cause” the renter retained possession for a year and a half after a series of falls and a broken neck landed him in a nursing facility and unable to return (he remains in a low-income nursing facility as of this writing). The tenancy was finally released in a settlement years after the death of my parents, having caused tremendous stress and hassle for all involved, including the renter. 

Had my parents had any clue they were signing away rights to the guest bedroom for the remainder of their lives, they would never have listed the room for rent. Never. Owner needs change from time to time, and a lifetime is too long to wait. 

The rent board’s proposed “Just Cause” expansions over the last few years may be well-intentioned but in the end have real equity problems. Much like deed restrictions from years ago which favored directly or indirectly a non-diverse community, the just cause expansion won’t be felt equally across the income spectrum. Fiscally stable owner-occupants are more likely to forgo renting their extra space units, and the less well-off will be forced to accept whatever terms are in force. It takes an opposite approach to Measure Q and MM both of which went the other direction on the exact same issue. 

What Just Cause means in this context is a lifetime lease. Berkeley Municipal Code 13.76.130 explains valid end of tenancy reasons and states “except the obligation to surrender possession on proper notice as required by law.” Unpacking that legal sentence “surrender possession” is to leave a rental. And “notice” means things like the end of the lease, or 60 day notice. In short it means a tenant who wants to stay can ignore any time limits in their lease, potentially for the rest of their life. And according to case law in San Francisco, that right to stay extends to certain children of the original renter.

Rent control advocates have argued that every rental should be covered by the same rules. This sentiment may appear equitable at first but is absolutely tone deaf to the unique circumstances of regulating owner-present properties. It treats owner-landlords like operators of for profit apartment towers, when the true incentives are almost always quite different. Time limits matter much more to owner-occupants, and owner-occupants may not be interested in (or able to) commit to serve a rental property for the lifetime of a tenant. 

I urge the city to change gears, simplify the rules and ensure all one- two- and three-unit owner-occupied properties are “at will” tenancies with either party able to give notice. We should then ensure that every renter knows and every owner understands which rent rules apply, to reduce the number of tragic misunderstandings. The goal is to prevent tenants who would be harmed by an owner change from only finding out about it at a moment of crisis. Extending the existing City Rental Housing Safety Program process would do fine with help from the city to get owners to file the form reliably. And, perhaps, operate a new city referral program to help counsel and prepare lower income tenants who may be forced out by a future change at an owner-occupied property. 

Every renter who willingly and freely and reasonably chooses an “at will” tenancy frees up “just cause” housing for others. There’s literally no problem to fix. An owner-occupied rent relationship is great for some, but not for all tenants and tenancies -- let’s not try to paint every situation with the same brush. 

As a side benefit, this will make it far easier to convince owners to take a chance on someone with a challenging background, if the long term relationship is by mutual consent.

Changing course could bring significant numbers of brand new units to renters, if owners with extra space in their main homes feel comfortable enough to build Junior ADU units (these can only be built within the actual main home structure). It could open up large homes with a backyard ADU but plenty of space in the basement. And finally this approach could open up fixed term rentals of duplex properties where the owner occupant has recently died (those homes often sit vacant, because under existing rules they are too risky to rent out). There are plenty of rental spaces that open up, if term or “at will” leases are allowed in appropriate circumstances. 

The Berkeley City Council will next debate this topic at their meeting August 3rd 2022 . The proposed ordinance is summarized in the image.