Berkeley is being, well, Berkeley again. The city attempts to sidestep owner protections afforded to owners under the Costa-Hawkins Rental Housing Act after the city determines several properties that were gutted and rebuilt are subject to rent regulation.

If you've been following Bornstein Law for any length of time, we are probably preaching to the choir when we say that one of the first things prospective clients are asked is when the property was built.

This is a generalized question. We peel the onion a little deeper by asking when the first certificate of occupancy was issued. This probing is to determine whether the property at hand is subject to rent or eviction controls in a given area.


We have said in many venues that the operative term in "substantial renovation" or rehabilitation is substantial.

If you are contemplating the transition of a tenant out in order to effectuate major repairs, please consult our office first to see if the project passes the test of "substantial renovation" and we will be happy to share with you the criteria. Suffice it to say it is not a paint job or sanding a hardwood floor. The property need not be burnt down to the ground, but it must have some troubling habitability issues.

Yet when a Berkeley property owner gutted and rebuilt two red-tagged single-family homes and new certificates of occupancy were issued upon completion of the overhaul, this was not enough to escape the city's regulatory regime. Short of putting a crane to the structures and totally demolishing them, the city has asserted that some overhauled units remain subject to rent control, seemingly in blatant violation of the Costa-Hawkins Rental Housing Act.

A lawsuit followed and while we are hard-pressed to summarize all of the legal issues at play, the cerebral types can delve deeper by reading "friend of the court" briefs here.


Some of our takeaways

As a sidebar, a building that is "red tagged" and is unsuitable for human occupancy is one of the limited causes to evict a tenant in Alameda County. We remain cautiously optimistic that logic will prevail, either in the form of pending litigation challenging the county's draconian eviction moratorium, or lawmakers coming to their senses and lifting the eviction ban.

At any rate, in concert with our friends at the Berkeley Property Owners Association, Bornstein Law will keep you abreast of the lawsuit.

We've said in many venues that if statewide legislation like Costa-Hawkins and the Ellis Act could not be repealed, there would be sparring on the local level with lawmakers and judges chipping away at the rights of owners in a piecemeal fashion.

Re-defining the definition of a single-family home, for example, when there are multiple tenants, or imposing rent control on new buildings.

We are finding that tenants' advocates are a relentless and increasingly creative bunch but while the political rhetoric often falls squarely on their side, Bornstein Law is here to protect the rights of owners.