On February 20, 2020, a crowd gathered around an apartment complex on 10th st. in West Berkeley for a press conference announcing Berkeley’s Tenant Opportunity to Purchase Act (TOPA). The group included Berkeley Mayor Jesse Arreguin, Dominique Walker of Moms4Housing, the East Bay Community Law Center (EBCLC), local land trusts (Bay Area Community Land Trust & Northern California Land Trusts), and tenants organizing against and affected by displacement. This is the first TOPA to be introduced, among many others soon to be announced, in the Bay Area and California.

Seema Rupani and Hewot Shankute, staff attorneys at EBCLC and the authors of the TOPA, highlighted the devastating effects of displacement of being priced out primarily on people of color, and particularly for Berkeley’s African American population, and the dire need to make housing into a human right. This sentiment was also expressed by Dominique Walker who said in the press conference, “Housing is a human right that ought to be in the U.S. Constitution.”

Tenants from 10th st. as well as from another Berkeley property on Solano ave., where tenants are being displaced, spoke out about the need to equalize the playing field for all races and to make access to housing based not purely on one’s ability to pay. Peggy Magilen, an ex-resident of Solano ave. highlighted how easy it is for landlords to evict tenants under the Ellis act, which she called “renoviction.” Renoviction is the phenomena of displacing tenants to update units and convert them for another use, such as condos. At Solano ave., she revealed that the landlords had begun renoviction risking the safety of current tenants, exposing them to toxic asbestos and lead. Many of Solano ave. tenants are elderly and on fixed incomes and cannot afford to move elsewhere in Berkeley or even the Bay Area. For these elderly tenants living in their apartment units, some for as long as twenty years, the effect of being displaced is devastating.

San Francisco, Oakland and Berkeley have all recently created or are in the midst of developing cutting-edge affordable housing policies to fight displacement. These policies include the TOPA in Berkeley and Oakland, Community Opportunity to Purchase Act (COPA) in San Francisco, and Small Sites Programs in Berkeley and San Francisco. In addition to fighting displacement, these programs are advancing permanent affordability and Community Land Trusts as important players in influencing local community development. They are also connectings CLTs to important local financing and resources for property development and acquisition.

 Since the 1980s,  TOPA has successfully been preventing tenants from being displaced by providing them with the first opportunity to purchase their building when the owner decides to sell in Washington D.C. The TOPA also creates timelines for owners to notify tenants of their intent to sell, provides them with the opportunity to decide whether to buy, and get financing together. 

Under the DC TOPA shared limited equity ownership has grown through the LEC (Limited Equity Cooperative) or LEHC (Limited Equity Housing Cooperative) to around 100 projects and over 4,000 units. More recently, the Douglass Community Land Trust was formed to further advance permanently affordable housing by acquiring properties through the DC TOPA and place them under CLT deed restrictions. CLTs have had very little benefit from TOPA in DC until recently. However, the DC TOPA has set an important precedent as a model for shared equity housing to ensure permanent affordability is advanced in future TOPAs in both Oakland and Berkeley. In Oakland, a TOPA based on the Berkeley ordinance is similarly being discussed by its City Council. Introduced by Councilperson Nikki Fortunato Bas’s office in response to the Moms4Housing campaign, the TOPA is slated to be introduced on March 24, 2020 (the same day that the Berkeley’s City Council will vote on Mayor Arreguin’s proposal).

In Berkeley, the ordinance was developed by the EBCLC and its community partners (Bay Area Community Land Trust and Northern California Land Trust) in collaboration with the City of Berkeley. Tenants will not only be able to exercise rights to have an opportunity to buy their building but also to assign their rights to qualified affordable housing developers like CLTs. Furthermore, in Berkeley, qualified non-profits like CLTs will have a secondary right if the tenants decide to pass up the opportunity, similar to how the Community Opportunity to Purchase Act works in San Francisco. This program in Berkeley complements the recently launched Small Sites Program, with the first pilot project to be completed this year by the Bay Area Community Land Trust. The Small Sites Program is a program in Berkeley and San Francisco aimed at anti-displacement of residents in rental buildings that have between 5-25 units. The program works by offering subsidy assistance for residents and CLTs to purchase their buildings and convert them into permanently affordable housing. Unlike San Francisco’s Community Opportunity to Purchase Act, the program views Community Land Trusts as qualified non-profits and encourages the creation of Limited Equity Housing Cooperatives. This program will be aligned with TOPA and with Berkeley’s Affordable Housing Policy Framework, authored by the Mayor’s Office and former Housing Director Stephen Barton.

There is currently a lot of misinformation about TOPA by property owners and the real estate lobby, however their accusations that TOPA usurps the rights of property owners are incorrect: 

• TOPA does not compel property owners to sell, nor does it require them to sell at below market value: TOPA creates legal rights for tenants to have the first chance to purchase, and allows time for the tenants to decide if they have the will and the financing to purchase their building. However, the owner can get a third party offer after the tenant’s make an offer which the tenants have to match. Furthermore, the property owners who participate in TOPA are rewarded with a tax break on their transfer taxes, so rather than negatively affecting property owners, it is giving them a huge incentive to sell to their tenants.
• TOPA is NOT a failed policy in DC: Contrary to what some are saying, TOPA in DC did not fail and has been in existence since the 1980s. It has been successful in preventing displacement over the last four decades by creating thousands of affordable housing units. If that is not a best practice then what is?
• TOPA timelines will not cause property values to plummet: The prescribed timelines under TOPA only allow tenants opportunity to organize NOT to delay sales indefinitely. Since the policy has been introduced in Washington DC these timelines have not affected property values nor caused a reduction in demand in the real estate market.

Policies like TOPA, COPA and Small Sites, are critical to creating affordability where it is needed most when it is needed most rather than waiting for market forces to “trickle down” affordable housing which can take more than a decade. People in the SF Bay Area are currently being displaced by the thousands, breaking up communities, and forcing critical workers like teachers, public workers and first aid responders out. More responsive policy is clearly needed to address this housing crisis of epidemic proportions. TOPA, COPA and Small Sites are the types of policies which address the housing crisis now, while people are still in the SF Bay Area, as opposed to waiting until no one but those of high incomes remain. 

For more information about TOPA visit: https://yes2topa.org/. If you are a Berkeley resident and interested in testifying on behalf of TOPA at the March 24, 2020 City Council meeting please contact saki@bayareaclt.org.