Update, Sept 1: The FPPC declined to act on a complaint against Rent Board Commissioner Leah Simon-Weisberg. See details at the end of the story.
Original story: For the last two years, the Berkeley Rent Stabilization Board has worked to eliminate a carve-out to the city’s rent control laws — the so-called “golden duplex” rule.
When Berkeley voters adopted rent control in 1980, they decided that people who owned a duplex, lived there by Dec. 31, 1979, and rented out the other apartment should not be subject to rent control. The thinking was that was an intimate relationship that shouldn’t be regulated by a government institution.
But in ensuing years, that philosophy has come under attack. Tenant activists say that all tenants should be protected by rent and eviction controls and that the intimate relationship between a golden duplex owner and their tenants is ripe for exploitation. The owner can raise their tenant’s rent as high as they want and as often as they want. The owner can kick someone out of their unit whenever they want and for whatever reason they want. For that reason, many Rent Board commissioners, and groups like the Berkeley Tenants Union, want to eliminate the rent and eviction control exemptions for golden duplexes.
On May 29, in a 7-2 vote, the Rent Board voted to ask the City Council to place a measure on the November ballot eliminating the golden duplex exemption, among other actions. The council will take up the matter tonight.
No one is certain how many golden duplexes there are in Berkeley, but estimates range from 400 to 1,000. Since they are exempt from rent regulations, owners do not have to register them with the Rent Board. There are about 27,550 rental units in Berkeley, according to the Rent Board. About 19,667, or 71% of them, are covered by rent and eviction controls
Feelings run high on both sides of the issue
The golden duplex vote has prompted lobbying and action from organizations representing both renters and property owners.
The Berkeley Tenants Union, an organization “dedicated to defending and advancing the rights of Berkeley renters,” encouraged its members this week to write to the City Council and urge them to place the golden duplex law on the November ballot. Two leaders of the BTU also serve as Rent Board commissioners and voted to ask the council to put the item on the ballot — Paola Laverde, the Rent Board president, and John Selawsky. The BTU is providing talking points for members to say at tonight’s council meeting or in an email.
“Don’t be fooled by landlords, who are falsely claiming that they need their businesses to be exempt from reasonable regulations,” the BTU wrote on Facebook. “Just a cursory investigation shows that they are lying about supposed reasons to continue exempting golden duplexes and ADU’s.”
“Being a landlord is a FOR-PROFIT BUSINESS, and a very lucrative one,” the BTU post continued. “Like every other for-profit industry, it must be regulated at EVERY SCALE in order to protect “consumers” — in this case tenants — from exploitative practices.”
Conflicts of interest allegations
The Berkeley Property Owners’ Association, which represents landlords in Berkeley, many of them small property owners, is also advocating for its members to get involved with the vote. In addition, the BPOA filed a complaint with the Fair Political Practices Commission against Leah Simon-Weisberg, a Rent Board commissioner. The complaint states that Simon-Weisberg should have recused herself from voting to ask the City Council to place the golden duplex measure on the ballot because she lives in a golden duplex, according to the complaint. Therefore, she stands to benefit financially if that unit becomes rent-controlled, the complaint contends.
“Berkeley Rent Stabilization Board Commissioner Leah Simon Weisberg violated [the law] section 87100 when she made a governmental decision which had a reasonably foreseeable material effect on one of her personal financial interests,” reads part of the FPPC complaint.
Matt Brown, the acting executive director of the Rent Board, told Berkeleyside that Simon-Weisberg did not have a conflict.
“Commissioners are free to participate in discussions and vote upon proposals that may have direct consequences for their personal housing situation or the financial performance of their rental property, so long as the proposal does not treat the Commissioners any differently from anyone else who owns or lives in the same type of property,” he said in an email.
(The BPAO also sent a letter to the Berkeley city attorney which incorrectly argued that Simon-Weisberg cast the deciding fifth vote to send the matter to the council. Since she should not have voted, that matter would not have advanced, the letter argued. The BPOA later acknowledged it had counted the votes incorrectly).
The Berkeley Property Owners Association also wants Mayor Jesse Arreguín to recuse himself from voting tonight because it believes he lives in a golden duplex in North Berkeley, said Krista Gulbransen, the organization’s executive director. She sent what the BPOA considers evidence of this situation to the Berkeley City attorney late Monday night. She said she believes City Council member Ben Bartlett also lives in a golden duplex and should not vote.
“In light of this evidence, and due to the fact that the Council will be considering whether to remove the rent control exemption from these properties, we assert the that Mayor stands to gain a financial benefit and should recuse himself from Item #41 ahead of tomorrow night’s meeting, just as Councilmember Bartlett has been advised to do,” Gulbransen wrote.
Mayor Arreguín and Councilmember Bartlett will recuse themselves from voting
Arreguín said he has contacted the Fair Political Practices Commission to determine whether it would be a conflict for him to vote on the golden duplex issue since he lives in a golden duplex. He said he was not aware there might be an issue until last night when the BPOA sent a letter to the city.
Out of an abundance of caution, he will not participate in the discussion of the issue, he said.
“I resent suggestions I have acted improperly,” he said. “This last-minute attempt of the Berkeley Property Owners Association to silence me and the people I represent is undemocratic.”
Arreguín said he will join in on the discussion on the other items the rent board wants put on the ballot.
Bartlett told Berkeleyside that he lives in a golden duplex and is negotiating to buy a property with an ADU so he will not vote on those issues coming up tonight. Bartlett said he consulted with the city attorney about this a few weeks ago and had alerted his constituents to the matter.
Arreguín has introduced a compromise measure around golden duplexes. The proposed ballot language suggested by the Rent Board would immediately eliminate the exemptions. Arreguín’s measure, in contrast, would only eliminate the measure after current owners sell their property. (Arreguín said he will no longer introduce this measure).
“As long as you owned and lived in your golden duplex as of March 1, 2020 and continuously reside there, you keep the exemption,” Arreguín said in an email. “If you sell it, then you lose the exemption. It is intended to be a compromise to keep existing golden duplex owners’ rights, recognizing they bought the property with a certain understanding of their legal rights and the landlord-tenant relationship, but once it is sold, it is no longer exempt. This would have the effect of gradually phasing in these properties into full rent control.”
The Rent Board also asked the City Council to add other items to the November ballot, including one that would put newly constructed accessory dwelling units, ADUs, under rent control. They are:
- Require all single-family homes now rented out, as well as new apartments, to register with the Rent Board. Currently, these types of properties don’t have to register with the Rent Board, although new apartments are subject to just cause eviction laws. The owners would have to pay an annual rental registration fee, but it would be lower than the $250 annual fee that landlords now pay to register each of their rent-controlled units.
- Ensure that no tenant could be evicted because of delayed payments resulting from the COVID-19 crisis.
Update: 3:45 p.m. This article has been updated to add Arreguín and Bartlett’s viewpoints.
Update, Sept. 1: The Fair Political Practices Commission declined to pursue a complaint filed by the Berkeley Property Owners’ Association about the vote Simon-Weisberg made to put golden duplexes under rent control. The BPOA had suggested she should not have voted because she lives in a golden duplex and consequently has a conflict of interest.
“After review of the complaint and evidence provided, the Enforcement Division will not pursue an enforcement action in this matter,” the agency wrote to Krista Gulbransen, the executive director of the BPOA, who filed the complaint.