Subletting & Replacing Roommates
Learn how subletting and roommate replacement affect the rights and responsibilities of landlords and tenants under the Berkeley Rent Stabilization Ordinance.
To sublet or sublease is to rent part of the premises to another person for all or part of the lease term, or to rent all of the premises to another for a portion of the lease term. Thus, a sublet exists where the original (or "master") tenant takes in a roommate whose name is not on the lease and who pays rent to the master tenant, or where the master tenant rents the unit to another person during the master tenant's absence. A master tenant must still follow all lease requirements. Subtenants must also follow all lease requirements.
Always check the lease terms before subletting
- If the lease does not specifically prohibit subletting, a tenant may sublet a unit.
- If the lease allows subletting with the landlord's approval, the landlord may say “no” only when they have a reasonable objection to the proposed subtenant. A bad financial or rental history is an example of a reasonable objection to a proposed subtenant.
- If the lease specifically prohibits subletting, doing so may be a violation of the lease and grounds for eviction.
If you have questions about whether a lease allows subletting, you should seek legal advice.
When a roommate whose occupancy was allowed under the lease moves out, a landlord generally must allow the remaining original tenant/s to replace the roommate who left. The landlord may object to a replacement roommate only if the landlord has a reasonable basis for doing so. If a landlord objects to the replacement of a roommate, the remaining tenant/s may petition the Board for a rent reduction. (See Rent Board Regulation 1270(C).) A landlord who forces remaining tenants to leave the unit by refusing to allow a replacement roommate cannot set a new market rate rent for the next tenancy because the vacancy was not voluntary.
Replacement roommates and subtenants have good cause for eviction protections
If a replacement roommate or subtenant lives in the unit for 14 days or more, they have good cause for eviction protections and cannot be made to leave the unit without one of the good causes stated in the Rent Ordinance.
A master tenant must have good cause to evict and go through a formal eviction process to force a subtenant to leave a unit.
In these situations, only a landlord can evict and only if there is good cause. A landlord cannot evict just one specific tenant. An eviction allows the landlord to recover possession of the unit, meaning the entire household is evicted.
Because these situations can be complicated, it’s important to choose a subtenant or replacement roommate carefully.
Partial tenancy turnover and rent increases
Under a state law called the Costa-Hawkins Rental Housing Act, when a unit becomes vacant, a landlord can set the starting rent for a new tenancy at a market rate (“vacancy increase”). Questions often arise about when a landlord may implement a vacancy increase where several tenants rent a unit together and are gradually replaced over time. The unit may never be entirely vacant during these changes in tenancy, so what constitutes a “vacancy”?
When the landlord may set a new rent
The landlord may set a new rent when there is a complete turnover of original occupants. Generally, an original occupant is someone who was a tenant or subtenant when the landlord last established an initial rent. A new group of tenants becomes a new set of "original" occupants to which the same rules regarding a vacancy increase will apply.
When the landlord might NOT be able to set a new rent
Under Rent Board Regulation 1013(O)(5), where a landlord rents a unit and places only one tenant's name on the lease, but authorizes more than one tenant to occupy the unit, all tenants who occupy the unit within 30 days of the tenancy start date, with the landlord's express or implied permission, are considered original occupants. This covers situations where a landlord interviews several prospective tenants, orally accepts a group of them, but has only one tenant sign the lease. If other original occupants remain, the landlord is not allowed to raise the rent simply because the signing tenant moves out permanently.
The landlord might not be able to set a new rent if, after the last original occupant provided written notice of their departure and vacated the unit, the landlord continued to accept rent from the remaining occupants. (Rent Board Regulation 1013(O).) If tenants hide the fact that the last original occupant has vacated the unit, however, the landlord's acceptance of rent does not constitute a waiver of the right to implement a vacancy increase.
Deferring a Vacancy Rent Increase
The landlord may defer the imposition of a vacancy increase for up to six months after receiving written notice of the last original occupant's departure by agreeing in writing with the remaining tenants to do so.
These issues can be complicated. Please contact a housing counselor if you have questions.
Limits on rent charged to a subtenant or replacement roommate
A master tenant may not charge more than an amount substantially proportional to the space occupied by the subtenant. (Rent Board Regulation 1003(C).) A master tenant subletting the entire premises may not charge a subtenant more than the rent lawfully owed to the landlord. (Rent Board Regulation 1003(B)). These limits prevent a master tenant from “profiting” from a subtenancy.
The same rules apply to replacement roommates.
Landlord’s right to full rent payment
If a subtenant fails to pay rent to the master tenant, the master tenant still owes the landlord the full amount of rent. Similarly, if a replacement roommate does not pay their share of the rent, the landlord is still owed the full rent payment. Failure to pay the full amount of rent owed to the landlord puts the entire tenant household at risk of eviction.