California Tenant And Landlord Rights And Responsibilities
1625 NORTH MARKET BOULEVARD
SACRAMENTO, CA 95834
www.dca.ca.gov
California TenanTs
A GUIDE TO RESIDENTIAL TENANTS’ AND
LANDLORDS’ RIGHTS AND RESPONSIBILITIES
Revised July 2012
California TenanTs
A GUIDE TO RESIDENTIAL TENANTS’ AND
LANDLORDS’ RIGHTS AND RESPONSIBILITIES
California Tenants—A Guide to Residential Tenants’ and Landlords’ Rights and Responsibilities
was written by the Department of Consumer Affairs’ Legal Affairs Division and was produced by
the Department’s Office of Publications, Design & Editing. The 1998 printing of this booklet was
funded by a grant from the California Consumer Protection Foundation.
The California Department of Fair Employment and Housing contributed to the text on unlawful
discrimination in housing.
NOTICE
The opinions expressed in this booklet are those of the authors and should not be construed
as representing the opinions or policy of any official or agency of the State of California. While this
publication is designed to provide accurate and current information about the law, readers should
consult an attorney or other expert for advice in particular cases, and should also read the relevant
statutes and court decisions when relying on cited material.
ORDERING INFORMATION
This publication is available on the Internet. See the Department of Consumer Affairs’ home page
at www.dca.ca.gov.
This booklet may be copied, if (1) the meaning of copied text is not changed or misrepresented,
(2) credit is given to the Department of Consumer Affairs, and (3) all copies are distributed free
of charge.
For information on ordering copies of this booklet, see page 111.
Department of Consumer Affairs, 1998
Reprinted, 2000
Updated and reprinted, 2001
Reprinted, 2002
Updated and reprinted, 2003
Updated, 2004
Updated and reprinted, 2006
Updated and reprinted, 2007
Reprinted, 2008
Updated and reprinted, 2010
Updated and reprinted, 2012, current with all 2011 laws.
Dear Reader:
For most of us, where we live is the most significant consumer decision we make, and our housing
costs are the biggest part of our budget. Our home is where we spend much of our time, and we want
it to be hassle free!
Move-in day marks the beginning of an important relationship between a tenant and a landlord. To
help tenants and landlords manage their rental-housing responsibilities, we’re pleased to provide the
Department of Consumer Affairs’ practical “California Tenants” guide.
The “California Tenants” booklet is a practical resource for both tenants and landlords. We’ve
provided information about rental applications, unlawful discrimination, security deposits, repair
responsibilities, rent increases, termination of leases, and eviction notices. We’ve included an
inventory checklist for use before moving in, and again when moving out.
If you need additional assistance, we’ve also provided a comprehensive list of resources in
communities throughout the Golden State.
We hope you find “California Tenants” helpful. You can get more information by visiting the
Department’s Web site at www.dca.ca.gov or by calling (800) 952-5210.
California Department of Consumer Affairs
INTRODUCTION .......................................... 1
HOW TO USE THIS BOOKLET ....................... 1
WHO IS A LANDLORD AND
WHO IS A TENANT? ................................... 2
General Information About
Landlords and Tenants ................................ 2
Special Situations ....................................... 2
Hotels and motels ................................ 3
Residential hotels .................................. 3
Single lodger in a private residence ........ 4
Transitional housing .............................. 4
Mobilehome parks and
recreational vehicle parks ...................... 4
LOOKING FOR A RENTAL UNIT ..................... 5
Looking for and Inspecting
Rental Units ................................................ 5
Looking for a rental unit ......................... 5
Inspecting before you rent ...................... 5
The rental application ............................ 6
Prepaid rental listing services ................. 7
Credit Checks ............................................. 9
Application Screening Fee .......................... 10
Holding Deposit ....................................... 10
Unlawful Discrimination ............................. 11
What is unlawful discrimination? ........... 11
Examples of unlawful discrimination ...... 12
Limited exceptions for
single rooms and roommates ............... 13
Resolving housing
discrimination problems ....................... 14
BEFORE YOU AGREE TO RENT ................... 15
Rental Agreements and Leases .................. 15
General information ............................. 15
Oral rental agreements ........................ 16
Written rental agreements .................... 16
Leases ............................................... 17
Shared Utility Meters ................................ 17
Translation of Proposed
Rental Agreement ...................................... 18
WHEN YOU HAVE DECIDED TO RENT ......... 18
What the Rental Agreement or Lease
Should Include ......................................... 19
Key terms ........................................... 19
Alterations to Accommodate a Tenant
With a Disability ........................................ 21
Tenant’s basic legal rights .................... 22
Landlord’s and tenant’s duty of
good faith and fair dealing .................... 22
Shared utilities .................................... 22
Landlord’s Disclosures .............................. 22
Lead-based paint ................................. 22
Periodic pest control treatments ........... 23
Asbestos ............................................ 23
Carcinogenic material .......................... 23
Methamphetamine contamination ......... 23
Demolition permit ................................ 24
Military base or explosives ................... 24
Death in the rental unit ........................ 24
Condominium conversion project .......... 24
Table of ConTenTs
Basic Rules Governing
Security Deposits ...................................... 24
The Inventory Checklist .............................. 26
Renter’s Insurance .................................... 27
Rent Control ............................................. 27
LIVING IN THE RENTAL UNIT ..................... 28
Paying the Rent ................................... 28
When is rent due? ............................... 28
Check or cash? ................................... 29
Obtaining receipts for rent payments ..... 30
Late fees and dishonored check fees .... 30
Partial rent payments .......................... 30
Security Deposit Increases......................... 31
Rent Increases .......................................... 31
How often can rent be raised? .............. 31
Rent increase; notice and
effective date ...................................... 32
Example of a rent increase ................... 33
When Can the Landlord
Enter the Rental Unit? ............................... 33
Subleases and Assignments ...................... 35
Subleases .......................................... 35
Assignments ....................................... 36
DEALING WITH PROBLEMS ....................... 36
Repairs and Habitability ............................. 36
Landlord’s responsibility for repairs ....... 37
Tenant’s responsibility for repairs .......... 37
Conditions that make a
rental unit legally uninhabitable ............ 37
Limitations on landlord’s duty
to keep the rental unit habitable ........... 39
Responsibility for other kinds
of repairs ............................................ 40
Tenant’s agreement to make repairs .... 40
Having Repairs Made ................................. 40
The “repair and deduct” remedy ........... 41
The “abandonment” remedy ................. 42
The “rent withholding” remedy .............. 43
Giving the landlord notice ..................... 45
Tenant information ............................... 46
Lawsuit for damages as a remedy ......... 46
Resolving complaints out of court ......... 47
Landlord’s Sale of the Rental Unit ............... 47
When a property is sold
in foreclosure ...................................... 48
Condominium Conversions ......................... 48
Demolition of Dwelling ............................... 49
Influencing the Tenant to Move ................... 49
MOVING OUT ............................................ 49
Giving and Receiving Proper Notice ............ 49
Tenant’s notice to end a
periodic tenancy .................................. 49
Tenant’s notice to end tenancy due to
domestic violence, sexual assault,
or stalking ........................................... 50
Landlord’s notice to end a
periodic tenancy ................................. 50
Advance Payment of
Last Month’s Rent ..................................... 52
Refund of Security Deposits ....................... 53
Common problems and
how to avoid them ............................... 53
Initial inspection before
tenant moves out ................................ 55
Suggested Approaches to
security deposit deductions .................. 59
Refund of security deposits
after sale of building ........................... 63
Legal actions for obtaining
refund of security deposits ................... 64
Tenant’s Death ......................................... 65
Moving at the End of a Lease ..................... 65
The Inventory Checklist .............................. 66
TERMINATIONS AND EVICTIONS ............... 67
When Can a Landlord
Terminate a Tenancy? ................................ 67
Written Notices of Termination ................... 68
30-day or 60-day notice ....................... 68
How to respond to a 30-day
or 60-day notice ................................. 68
Three-day notice ................................. 68
How to respond to a three-day notice .... 70
How to count the three days ................. 71
Proper Service of Notices ........................... 71
The Eviction Process
(Unlawful Detainer Lawsuit) ........................ 72
Overview of the eviction process ........... 72
How to respond to an
unlawful detainer lawsuit ...................... 73
Eviction of “unnamed occupants” ......... 74
Before the court hearing ...................... 74
Discovery in unlawful detainer
cases ................................................. 75
After the court’s decision ..................... 76
Writ of possession ............................... 77
Setting aside a default judgment .......... 78
A word about bankruptcy ...................... 78
Retaliatory Actions, Evictions, and
Discrimination ........................................... 79
Retaliatory actions and evictions .......... 79
Retaliatory discrimination ..................... 80
RESOLVING PROBLEMS ............................ 80
Talk With Your Landlord .............................. 80
Getting Help From a Third Party ................. 81
Arbitration and Mediation .......................... 82
GLOSSARY ............................................... 84
APPENDIX 1 — OCCUPANTS NOT NAMED
IN EVICTION LAWSUIT OR WRIT OF
POSSESSION ............................................ 89
Occupants Not Named in
Eviction Lawsuit ........................................ 89
Occupants Not Named in
Writ of Possession .................................... 90
APPENDIX 2—LIST OF CITIES
WITH RENT CONTROL ORDINANCES .......... 90
APPENDIX 3—TENANT INFORMATION
AND ASSISTANCE RESOURCES ................. 91
APPENDIX 4—OTHER RESOURCES ........... 99
Publications on Landlord-Tenant Law ........... 99
Department of Consumer Affairs —
Legal Guides ............................................. 99
Department of Consumer Affairs—
Other Resources ....................................... 99
APPENDIX 5—LEGALLY REQUIRED
TEXT OF NOTICES ................................. 100
INDEX ................................................... 104
INVENTORY CHECKLIST .......................... 107
HOW TO ORDER COPIES
OF THIS BOOKLET .................................. 111
1
California TenanTs
A GUIDE TO RESIDENTIAL TENANTS’ AND LANDLORDS’
RIGHTS AND RESPONSIBILITIES
IntroductIon
What should a tenant do if his or her
apartment needs repairs? Can a landlord
force a tenant to move? How many days notice
does a tenant have to give a landlord before
the tenant moves? Can a landlord raise a
tenant’s rent? California Tenants—A Guide to
Residential Tenants’ and Landlords’ Rights and
Responsibilities answers these questions and
many others.
Whether the tenant is renting a room, an
apartment, a house, or a duplex, the landlord-
tenant relationship is governed by federal, state,
and local laws. This booklet focuses on California
laws that govern the landlord-tenant relationship,
and suggests things that both the landlord and
tenant can do to make the relationship a good
one. Although the booklet is written from the
tenant’s point of view, landlords can also benefit
from its information.
Tenants and landlords should discuss their
expectations and responsibilities before they
enter into a rental agreement. If a problem
occurs, the tenant and landlord should try to
resolve the problem by open communication
and discussion. Honest discussion of the
problem may show each party that he or she
is not completely in the right, and that a fair
compromise is in order.
If the problem is one for which the landlord
is responsible (see pages 37–40), the landlord
may be willing to correct the problem or work out
a solution without further action by the tenant.
If the problem is one for which the tenant is
responsible (see pages 37–40), the tenant may
agree to correct the problem once the tenant
understands the landlord’s concerns. If the
parties cannot reach a solution on their own,
they may be able to resolve the problem through
mediation or arbitration (see page 82). In some
situations, a court action may provide the only
solution (see pages 46–48, 64–65, 72–78).
The Department of Consumer Affairs hopes
that tenants and landlords will use this booklet’s
information to avoid problems in the first place,
and to resolve those problems that do occur.
How to use tHIs Booklet
You can probably find the information you need
by using this booklet’s Table of Contents, Index,
and Glossary of Terms.
TABLE OF CONTENTS
The Table of Contents shows that the booklet
is divided into nine main sections. Each main
section is divided into smaller sections. For
example, if you want information about the rental
agreement, look under “Rental Agreements and
Leases” in the “BEFORE YOU AGREE TO RENT”
section.
2
INDEX
Most of the topics are mentioned in the Table
of Contents. If you don’t find a topic there, look in
the Index (page 104). It’s more specific than the
Table of Contents. For example, under “Cleaning”
in the Index, you’ll find the topics “deposits or
fees,” “tenant’s responsibility,” etc.
GLOSSARY
If you just want to know the meaning of a
term, such as eviction or holding deposit, look
in the Glossary (page 84). The glossary gives
the meaning of more than 60 terms. Each of
these terms also is printed in boldface type the
first time that it appears in each section of the
booklet.
The Department of Consumer Affairs hopes
that you will find the information you’re looking
for in this booklet. If you can’t find what you’re
looking for, call or write one of the resources
listed in “Getting Help From a Third Party”
(see pages 81–82) or “Tenant Information and
Assistance Resources” (see page 91).
wHo Is a landlord and
wHo Is a tenant?
GENERAL INFORMATION ABOUT
LANDLORDS AND TENANTS
A landlord is a person or a company that owns
a rental unit. The landlord rents or leases the
rental unit to another person, called a tenant, for
the tenant to live in. The tenant obtains the right
to the exclusive use and possession of the rental
unit during the lease or rental period.
Sometimes, the landlord is called the owner,
and the tenant is called a resident.
1 Civil Code Sections 1961, 1962, 1962.5. See Moskovitz et al., California Landlord-Tenant Practice, Section 1.21A
(Cal. Cont. Ed. Bar 2011).
2 Civil Code Section 1940(a).
3 See additional discussion in Moskovitz et al., California Landlord-Tenant Practice, Section 1.3 (Cal. Cont. Ed. Bar 2002, 2005, 2009, 2011).
A rental unit is an apartment, house, duplex,
condominium, or room that a landlord rents
to a tenant to live in. In this booklet, the term
rental unit means any one of these. Because the
tenant uses the rental unit to live in, it is called a
residential rental unit.
Often, a landlord will have a rental agent or
a property manager who manages the rental
property. The agent or manager is employed
by the landlord and represents the landlord.
In most instances, the tenant can deal with
the rental agent or property manager as if this
person were the landlord. For example, a tenant
can work directly with the agent or manager to
resolve problems. When a tenant needs to give
the landlord one of the tenant notices described
in this booklet (for example, see pages 45–46,
49–50), the tenant can give the notice to the
landlord’s rental agent or property manager.
The name, address and telephone number
of the manager and an owner of the building
(or other person who is authorized to receive
legal notices for the owner) must be written
in the rental agreement or lease, or posted
conspicuously in the rental unit or building.
1
SPECIAL SITUATIONS
The tenant rights and responsibilities
discussed in this booklet apply only to people
whom the law defines as tenants. Generally,
under California law, lodgers and residents
of hotels and motels have the same rights
as tenants.
2
Situations in which lodgers and
residents of hotels and motels do and do not
have the rights of tenants, and other special
situations, are discussed in the “Special
Situations” sidebar on pages 3–4.
3
Continued on page 5
3
Hotels and motels
If you are a resident in a hotel or motel, you do not have the rights of a tenant in any of the
following situations:
1. You live in a hotel, motel, residence club, or other lodging facility for 30 days or less, and your
occupancy is subject to the state’s hotel occupancy tax.
2. You live in a hotel, motel, residence club, or other lodging facility for more than 30 days, but
have not paid for all room and related charges owing by the 30th day.
3. You live in a hotel or motel to which the manager has a right of access and control, and all of
the following is true:
• The hotel or motel allows occupancy for periods of fewer than seven days.
• All of the following services are provided for all residents:
- a fireproof safe for residents’ use;
- a central telephone service;
- maid, mail, and room service; and
- food service provided by a food establishment that is on or next to the hotel or motel
grounds and that is operated in conjunction with the hotel or motel.
If you live in a unit described by either 1, 2, or 3 above, you are not a tenant; you are a
guest. Therefore, you don’t have the same rights as a tenant.
4
For example, the proprietor of
a hotel can lock out a guest who doesn’t pay his or her room charges on time, while a landlord
would have to begin formal eviction proceedings to evict a nonpaying tenant.
Residential hotels
You have some of the legal rights of a tenant if you are a resident in a residential hotel,
which is in fact your primary residence.
5
Residential hotel means any building which contains
six or more guest rooms or efficiency units which are designed, used, rented or occupied for
sleeping purposes by guests, and which is the primary residence of these guests.
6
In residential
hotels, a locking mail receptacle must be provided for each residential unit.
7
Special Situations
4 Civil Code Section 1940.
5 Health and Safety Code Section 50519(b)(1). See California Practice Guide, Landlord-Tenant, Paragraphs 2:39, 2:40.1, 7:6.2
(Rutter Group 2011).
6 Health and Safety Code Section 50519(b)(1). See California Practice Guide, Landlord-Tenant, Paragraphs 2:39, 2:40.1, 7:6.2
(Rutter Group 2011).
7 Health and Safety Code Sections 17958.3; Civil Code Section 1944.1(i); Califorrnia Practice Guide, Landlord-Tenant, Paragraph 3:21(a)
(Rutter Group 2011).
Special Situations continued on page 4
4
It is unlawful for the proprietor of a residential hotel to require a guest to move or to check
out and re-register before the guest has lived there for 30 days, if the proprietor’s purpose is to
have the guest maintain transient occupancy status (and therefore not gain the legal rights of
a tenant).
8
A person who violates this law may be punished by a $500 civil penalty and may be
required to pay the guest’s attorney fees.
Single lodger in a private residence
A lodger is a person who lives in a room in a house where the owner lives. The owner can
enter all areas occupied by the lodger and has overall control of the house.
9
Most lodgers have
the same rights as tenants.
10
However, in the case of a single lodger in a house where there are no other lodgers, the
owner can evict the lodger without using formal eviction proceedings. The owner can give the
lodger written notice that the lodger cannot continue to use the room. The amount of notice
must be the same as the number of days between rent payments (for example, 30 days). (See
“Landlord’s notice to end a periodic tenancy,” page 50.) When the owner has given the lodger
proper notice and the time has expired, the lodger has no further right to remain in the owner’s
house and may be removed as a trespasser.
11
Transitional housing
Some tenants are residents of “transitional housing.” Transitional housing provides services
and housing to formerly homeless persons for periods of 30 days to 24 months. Special rules
cover the behavior of residents in, and eviction of residents from, transitional housing.
12
Mobilehome parks and recreational vehicle parks
Special rules in the Mobilehome Residency Law
13
or the Recreational Vehicle Park
Occupancy Law,
14
and not the rules discussed in this booklet, cover most landlord-tenant
relationships in mobilehome parks and recreational vehicle parks.
However, normal eviction procedures (see pages 67–80) must be used to evict certain
mobilehome residents. Specifically, a person who leases a mobilehome from its owner (where
the owner has leased the site for the mobilehome directly from the management of the
mobilehome park) is subject to the eviction procedures described in this booklet, and not the
eviction provisions in the Mobilehome Residency Law. The same is true for a person who leases
both a mobilehome and the site for the mobilehome from the mobilehome park management.
15
Special Situations continued from page 3
8 Civil Code Section 1940.1. Evidence that an occupant was required to check out and re-register creates a rebuttable presumption that
the proprietor’s purpose was to have the occupant maintain transient occupancy status. (Civil Code Section 1940.1(a).) This presumption
affects the burden of producing evidence.
9 Civil Code Section 1946.5.
10 Civil Code Section 1940(a).
11 Civil Code Section 1946.5, Penal Code Section 602.3.
12 Health and Safety Code Sections 50580-50591.
13 Civil Code Sections 798-799.10. See Moskovitz et al., California Landlord-Tenant Practice, Sections 6.62-6.89 (Cal. Cont. Ed. Bar 2011).
14 Civil Code Sections 799.20-799.79.
15 California Practice Guide, Landlord-Tenant, Paragraphs 11:27-11:28 (Rutter Group 2011).
5
lookIng For a rental unIt
LOOKING FOR AND INSPECTING RENTAL UNITS
Looking for a rental unit
When you are looking for a rental unit, the
most important things to think about are:
•
The dollar limit that you can afford for monthly
rent and utilities.
•
The dollar limit that you can afford for all
deposits that may be required (for example,
holding and security deposits).
•
The location that you want.
In addition, you also should carefully consider
the following:
•
The kind of rental unit that you want (for
example, an apartment complex, a duplex, or
a single-family house), and the features that
you want (such as the number of bedrooms
and bathrooms).
•
Whether you want a month-to-month rental
agreement or a lease (see pages 15–17).
•
Access to schools, stores, public
transportation, medical facilities,
child-care facilities, and other necessities
and conveniences.
•
The character and quality of the neighborhood
(for example, its safety and appearance).
•
The condition of the rental unit (see
“Inspecting before you rent,” page 5).
•
Other special requirements that you or your
family members may have (for example,
wheelchair access).
You can obtain information on places to rent
from many sources. Many Internet Web sites
list rental properties. Local newspapers carry
classified advertisements on available rental
units. In many areas, there are free weekly
or monthly publications devoted to rental
listings. Local real estate offices and property
management companies often have rental
listings. Bulletin boards in public buildings, local
colleges, and churches often have notices about
places for rent. You can also look for “For Rent”
signs in the neighborhoods where you would like
to live.
Inspecting before you rent
Before you decide to rent, carefully inspect
the rental unit with the landlord or the landlord’s
agent. Make sure that the unit has been
maintained well. Use the inventory checklist
(pages 107-110) as an inspection guide. When
you inspect the rental unit, look for the following
problems:
•
Cracks or holes in the floor, walls, or ceiling.
•
Signs of leaking water or water damage in the
floor, walls, or ceiling.
•
The presence of mold that might affect your or
your family’s health and safety.
•
Signs of rust in water from the taps.
•
Leaks in bathroom or kitchen fixtures.
•
Lack of hot water.
•
Inadequate lighting or insufficient electrical
outlets.
•
Inadequate heating or air conditioning.
•
Inadequate ventilation or offensive odors.
•
Defects in electrical wiring and fixtures.
•
Damaged flooring.
•
Damaged furnishings (if it’s a furnished unit).
•
Signs of insects, vermin, or rodents.
•
Accumulated dirt and debris.
•
Inadequate trash and garbage receptacles.
•
Chipping paint in older buildings. (Paint chips
sometimes contain lead, which can cause lead
poisoning if children eat them. If the building
was built before 1978, you should read the
booklet, “Protect Your Family From Lead in
Your Home,” which is available by calling
(800)-424-LEAD or online at www.epa.gov/
lead/pubs/leadpdfe.pdf).
6
•
Signs of asbestos-containing materials in
older buildings, such as flaking ceiling tiles, or
crumbling pipe wrap or insulation. (Asbestos
particles can cause serious health problems if
they are inhaled.) For more information, go to
www.epa.gov/asbestos.
•
Any sign of hazardous substances, toxic
chemicals, or other hazardous waste products
in the rental unit or on the property.
Also, look at the exterior of the building
and any common areas, such as hallways and
courtyards. Does the building appear to be well-
maintained? Are the common areas clean and
well-kept?
The quality of rental units can vary greatly.
You should understand the unit’s good points
and shortcomings, and consider them all when
deciding whether to rent, and whether the rent is
reasonable.
Ask the landlord who will be responsible for
paying for utilities (gas, electric, water, and trash
collection). You will probably be responsible for
some, and possibly all, of them. Try to find out
how much the previous tenant paid for utilities.
This will help you be certain that you can
afford the total amount of the rent and utilities
each month. With increasing energy costs, it’s
important to consider whether the rental unit and
its appliances are energy efficient.
If the rental unit is a house or duplex with a
yard, ask the landlord who will be responsible for
taking care of the yard. If you will be, ask whether
the landlord will supply necessary equipment,
such as a lawn mower and a hose.
During this initial walk-through of the rental
unit, you will have the chance to see how your
potential landlord reacts to your concerns about
it. At the same time, the landlord will learn how
you handle potential problems. You may not be
able to reach agreement on every point, or on
any. Nonetheless, how you get along will help
both of you decide whether you will become a
tenant.
If you find problems like the ones listed above,
discuss them with the landlord. If the problems
are ones that the law requires the landlord to
repair (see pages 37–40), find out when the
landlord intends to make the repairs. If you agree
to rent the unit, it’s a good idea to get these
promises in writing, including the date by which
the repairs will be completed.
If the landlord isn’t required by law to make
the repairs, you should still write down a
description of any problems if you are going
to rent the property. It’s a good idea to ask
the landlord to sign and date the written
description. Also, take photographs or a video
of the problems. Use the time and date stamp,
if your camera has this feature. Your signed,
written description and photographs or video will
document that the problems were there when you
moved in, and can help avoid disagreement later
about your responsibility for the problems.
Finally, it’s a good idea to walk or drive around
the neighborhood during the day and again in
the evening. Ask neighbors how they like living
in the area. If the rental unit is in an apartment
complex, ask some of the tenants how they get
along with the landlord and the other tenants. If
you are concerned about safety, ask neighbors
and tenants if there have been any problems, and
whether they think that the area is safe.
THE RENTAL APPLICATION
Before renting to you, most landlords will
ask you to fill out a written rental application
form. A rental application is different from a
rental agreement (see pages 15–17). The rental
application is like a job or credit application. The
landlord will use it to decide whether to rent to you.
A rental application usually asks for the
following information:
•
The names, addresses, and telephone
numbers of your current and past
employers.
•
The names, addresses, and telephone
numbers of your current and past
landlords.
Continued on page 8
7
Businesses known as prepaid rental listing services sell lists of available rental units. These
businesses are regulated by the California Department of Real Estate (DRE) and must be
licensed.
16
You may check the status of a license issued to a prepaid rental service on the DRE
Web site (www.dre.ca.gov) to ensure that the service is licensed. If you use a prepaid rental
listing service, it must enter into a contract with you before it accepts any money from you.
17
The contract must describe the services that the prepaid rental listing service will provide you.
The contract also must include a description of the kind of rental unit that you want to find. For
example, the contract must state the number of bedrooms that you want and the highest rent
that you will pay.
Before you enter into a contract with a prepaid rental listing service or pay for information
about available rental units, ask if the service is licensed and whether the list of rentals is
current. The contract cannot be for more than 90 days. The law requires the service to give you
a list of at least three currently available rentals within five days after you sign the contract.
You can receive a refund of the fee that you paid for the list of available rentals if the list does
not contain three available rental units of the kind that you described in the contract.
18
In order
to obtain a refund, you must demand a full refund from the prepaid rental listing service within
15 days of signing the contract. Your demand for a refund must be in writing and must be
personally delivered to the prepaid rental listing service or sent to it by certified or registered
mail. (However, you can’t get a refund if you found a rental using the services of the prepaid
rental listing service.)
If you don’t find a rental unit from the list you bought, or if you rent from another source,
the prepaid rental listing service can keep only $50 of the fee that you paid. The service must
refund the balance, but you must request the refund within 10 days after the end of the contract.
You must provide documentation that you did not move, or that you did not find your new rental
using the services of the prepaid rental listing service. If you don’t have documentation, you
can fill out and swear to a form that the prepaid rental listing service will give you for this
purpose. You can deliver your request for a refund personally or by mail (preferably by certified or
registered mail with return receipt requested). Look in the contract for the address. The service
must make the refund within 10 days after it receives your request.
Prepaid Rental Listing Services
16 Business and Professions Code Section 10167.
17 Business and Professions Code Section 10167.9(a).
18 Business and Professions Code Section 10167.10.
8
•
The names, addresses, and telephone
numbers of people whom you want to use as
references.
•
Your Social Security number.
•
Your driver’s license number.
•
Your bank account numbers.
•
Your credit account numbers for credit
reference.
The application also may contain an
authorization for the landlord to obtain a copy of
your credit report, which will show the landlord
how you have handled your financial obligations
in the past.
The landlord may ask you what kind of job
you have, your monthly income, and other
information that shows your ability to pay the
rent. It is illegal for the landlord to discriminate or
harass you because of race, color, religion, sex,
sexual orientation, marital status, national origin,
ancestry, familial status, source of income, or any
disability
19
or whether you have persons under
the age of 18 living in your household.
20
With the
exception of source of income, the landlord may
not ask you questions in writing or orally about
your race, color, religion, sex, sexual orientation,
marital status, national origin, ancestry, familial
status, any disability, or whether you have
persons under the age of 18 living in your
household.
21
Further, the landlord may not ask
about your immigration or citizenship status.
22
Although the landlord may not discriminate on the
basis of source of income, the landlord is allowed
to ask you about your level of income and your
source of income.
23
Also, the landlord should
not ask you questions about your age or medical
condition.
24
(See “Unlawful Discrimination,”
pages 11–15.)
The landlord may ask you about the number
of people who will be living in the rental unit. In
order to prevent overcrowding of rental units,
California has adopted the Uniform Housing
Code’s occupancy requirements,
25
and the basic
legal standard is set out in footnote 25. However,
the practical rule is this: A landlord can establish
reasonable standards for the number of people
per square feet in a rental unit, but the landlord
cannot use overcrowding as a pretext for refusing
to rent to tenants with children if the landlord
would rent to the same number of adults.
26
19 Civil Code Section 51.
20 Government Code Sections 12955(b), 12955.1-12955.9; 12989-12989.3; 42 United States Code Sections 3601-3631; Moskovitz
et al.,. California Landlord Tenant Practice Sections 2.22-2.25 (CEB 2011).
21 Government Code Section 12955(b).
22 Civil Code Section 1940.3(b). See California Practice Guide, Landlord Tenant, Paragraph 2:569.1 (Rutter Group 2011).
23 Government Code Section 12955(p)(2).
24 Government Code Sections 12900-12996; Civil Code Sections 51-53; 42 United States Code Section 3601 and following. However, after
you and the landlord have agreed that you will rent the unit, the landlord may ask for proof of your disability if you ask for a “reasonable
accommodation” for your disability, such as installing special faucets or door handles. (Brown, Warner and Portman, The California
Landlords’ Law Book, Vol. I: Rights & Responsibilities, pages 161-163 (NOLO Press 2011)). (See chapter 9 of this reference for a
comprehensive discussion of discrimination).
25 Health and Safety Code Section 17922. See 1997 Uniform Housing Code Section 503(b) (every residential rental unit must have at least
one room that is at least 120 square feet; other rooms used for living must be at least 70 square feet; and any room used for sleeping
must increase the minimum floor area by 50 square feet for each occupant in excess of two). Different rules apply in the case of
“efficiency units.” (See 1997 Uniform Housing Code Section 503(b), Health and Safety Code Section 17958.1.)
26 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 166-167 (NOLO Press 2011).
This reference suggests that a landlord’s policy that is more restrictive than two occupants per bedroom plus one additional occupant is
suspect as being discriminatory.
9
CREDIT CHECKS
The landlord or the landlord’s agent will
probably use your rental application to check your
credit history and past landlord-tenant relations.
The landlord may obtain your credit report from
a credit reporting agency to help him or her
decide whether to rent to you. Credit reporting
agencies (or “credit bureaus”) keep records of
people’s credit histories, called “credit reports.”
Credit reports state whether a person has been
reported as being late in paying bills, has been
the subject of an unlawful detainer lawsuit (see
pages 72-78), or has filed bankruptcy.
27
Some credit reporting agencies, called tenant
screening services, collect and sell information
on tenants. This information may include whether
tenants paid their rent on time, whether they
damaged previous rental units, whether they
were the subject of an unlawful detainer lawsuit,
and whether landlords considered them good or
bad tenants.
28
The landlord may use this information to
make a final decision on whether to rent to you.
Generally, landlords prefer to rent to people who
have a history of paying their rent and other bills
on time.
A landlord usually doesn’t have to give you a
reason for refusing to rent to you. However, if the
decision is based partly or entirely on negative
information from a credit reporting agency or a
tenant screening service, the law requires the
landlord to give you a written notice stating all of
the following:
•
The decision was based partly or entirely on
information in the credit report; and
•
The name, address, and telephone number of
the credit reporting agency; and
•
A statement that you have the right to obtain
a free copy of the credit report from the
credit reporting agency that prepared it and
to dispute the accuracy or completeness of
information in the credit report.
29
If the landlord refuses to rent to you based
on your credit report, it’s a good idea to get a
free copy of your credit report and to correct
any erroneous items of information in it.
30
Erroneous items of information in your credit
report may cause other landlords to refuse to
rent to you also.
Also, if you know what your credit report says,
you may be able to explain any problems when
you fill out the rental application. For example,
if you know that your credit report says that you
never paid a bill, you can provide a copy of the
canceled check to show the landlord that you did
pay it.
The landlord probably will consider your credit
score in deciding whether to rent to you. Your
credit score is a numerical score that is based
on information from a credit reporting agency.
Landlords and other creditors use credit scores
to gauge how likely a person is to meet his or
her financial obligations, such as paying rent. You
can request your credit score when you request
27 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 16-20 (NOLO Press 2011);
California Practice Guide, Landlord-Tenant, Paragraphs 9:419.5, 9:419.11 (Rutter Group 2011).
28 Schoendorf v. Unlawful Detainer Registry, Inc. (2002) 97 Cal.App.4th 227 [118 Cal.Rptr.2d 313].
29 Consumer Credit Reporting Agencies Act, Civil Code Sections 1785.1-1785.36 and Section 1785.20(a); Investigative Consumer Reporting
Agencies Act, Civil Code Sections 1786-1786.60 and Section 1786.40; 15 United States Code Sections 1681-1681x and 1681m(a). In
order to receive a free copy of your credit report, you must request it within 60 days after receiving the notice of denial. See discussion in
California Practice Guide, Landlord-Tenant, Paragraphs 2:104.50-2:104.55 (Rutter Group 2011). Landlords’ responsibilities when using
credit reports are outlined in a publication by the Federal Trade Commission titled “Using Consumer Reports: What Landlords Need to
Know,” which can be found online at www.ftc.gov/bcp/edu/pubs/business/credit/bus49.shtm.
30 Civil Code Sections 1785.16, 1786.24; 15 United States Code Section 1681i.
10
your credit report (you may have to pay a fair and
reasonable fee for the score), or purchase your
score from a vendor.
31
APPLICATION SCREENING FEE
When you submit a rental application, the
landlord may charge you an application screening
fee. In 2011, the landlord may charge up to
$42.41, and may use the fee to cover the cost
of obtaining information about you, such as
checking your personal references and obtaining
a credit report on you.
32
The application fee cannot legally be more
than the landlord’s actual out-of-pocket costs,
and, in 2012, can never be more than $49.50.
The landlord must give you a receipt that itemizes
his or her out-of-pocket expenses in obtaining
and processing the information about you. The
landlord must return any unused portion of the
fee (for example, if the landlord does not check
your references).
The landlord can’t charge you an application
screening fee when the landlord knows or should
know that there is no vacancy or that there will
be no vacancy within a reasonable time. However,
the landlord can charge an application screening
fee under these circumstances if you agree to it
in writing.
33
If the landlord obtains your credit report after
you’ve paid the screening fee, the landlord must
give you a copy of the report if you request it.
34
As explained in the section on “Credit Checks,”
it’s a good idea to get a copy of your credit report
from the landlord so that you know what’s being
reported about you.
Before you pay the application screening fee,
ask the landlord the following questions about it:
•
How long will it take the landlord to get a copy
of your credit report? How long will it take the
landlord to review the credit report and decide
whether to rent to you?
•
Is the fee refundable if the credit check takes
too long and you’re forced to rent another
place?
•
If you already have a current copy of your
credit report, will the landlord accept it and
either reduce the fee or not charge it at all?
If you don’t like the landlord’s policy on
application screening fees, you may want to
look for another rental unit. If you decide to pay
the application screening fee, any agreement
regarding a refund should be in writing.
HOLDING DEPOSIT
Sometimes, the tenant and the landlord
will agree that the tenant will rent the unit, but
the tenant cannot move in immediately. In this
situation, the landlord may ask the tenant for a
holding deposit. A holding deposit is a deposit
to hold the rental unit for a stated period of
time until the tenant pays the first month’s rent
and any security deposit. During this period, the
landlord agrees not to rent the unit to anyone
else. If the tenant changes his or her mind about
moving in, the landlord may keep at least some
of the holding deposit.
Ask the following questions before you pay a
holding deposit:
•
Will the deposit be applied to the first month’s
rent? If so, ask the landlord for a deposit
receipt stating this. Applying the deposit to
the first month’s rent is a common practice.
31 Civil Code Sections 1785.15(a)(2), 1785.15.1, 1785.15.2; 15 United States Code Section 1681g(f). Vendors include www.TransUnion.
com, www.Experian.com, www.Equifax.com, and www.myfico.com.
32 Civil Code Section 1950.6. The maximum fee is adjusted each year based on changes in the Consumer Price Index since January 1, 1998.
In 2012, the maximum allowable fee is $49.50.
33 Civil Code Section 1950.6(c).
34 Civil Code Section 1950.6(f).
11
•
Is any part of the holding deposit refundable
if you change your mind about renting? As
a general rule, if you change your mind, the
landlord can keep some—and perhaps all
—of your holding deposit. The amount that
the landlord can keep depends on the costs
that the landlord has incurred because you
changed your mind—for example, additional
advertising costs and lost rent.
You may also lose your deposit even if the
reason you can’t rent is not your fault—for
example, if you lose your job and cannot afford
the rental unit.
If you and the landlord agree that all or part of
the deposit will be refunded to you in the event
that you change your mind or can’t move in, make
sure that the written receipt clearly states your
agreement.
A holding deposit merely guarantees that the
landlord will not rent the unit to another person
for a stated period of time. The holding deposit
doesn’t give the tenant the right to move into
the rental unit. The tenant must first pay the
first month’s rent and all other required deposits
within the holding period. Otherwise, the landlord
can rent the unit to another person and keep all
or part of the holding deposit.
Suppose that the landlord rents to somebody
else during the period for which you’ve paid a
holding deposit, and you are still willing and able
to move in. The landlord should, at a minimum,
return the entire holding deposit to you. You
may also want to talk with an attorney, legal
aid organization, tenant-landlord program, or
housing clinic about whether the landlord may be
responsible for other costs that you may incur
because of the loss of the rental unit.
If you give the landlord a holding deposit when
you submit the rental application, but the landlord
does not accept you as a tenant, the landlord
must return your entire holding deposit to you.
UNLAWFUL DISCRIMINATION
What is unlawful discrimination?
A landlord cannot refuse to rent to a tenant,
or engage in any other type of discrimination,
on the basis of group characteristics specified
by law that are not closely related to the
landlord’s business needs.
35
Race and religion
are examples of group characteristics specified
by law.
Arbitrary discrimination on the basis of
any personal characteristic such as those listed
under this heading also is prohibited.
36
Indeed,
the California Legislature has declared that the
opportunity to seek, obtain and hold housing
without unlawful discrimination is a civil right.
37
Under California law, it is unlawful for a
landlord, managing agent, real estate broker, or
salesperson to discriminate against a person
or harass a person because of the person’s
race, color, religion, sex (including pregnancy,
childbirth or medical conditions related to them,
as well as gender and perception of gender),
sexual orientation, marital status, national origin,
ancestry, familial status, source of income,
35 For example, the landlord may properly require that a prospective tenant have an acceptable credit history and be able to pay the rent
and security deposit, and have verifiable credit references and a good history of paying rent on time. (See Portman and Brown, California
Tenants’ Rights, pages 104, 106 (NOLO Press 2010).)
36 California Practice Guide, Landlord-Tenant, Paragraph 2:553.15 (Rutter Group 2011), citing Harris v. Capital Growth Investors XIV
(1991) 52 Cal.3d 1142 [278 Cal.Rptr. 614].
37 Government Code Section 12921(b).
Continued on page 13
12
Unlawful housing discrimination can take a variety of forms. Under California’s Fair Employment
and Housing Act and Unruh Civil Rights Act, it is unlawful for a landlord, managing agent, real
estate broker, or salesperson to discriminate against any person because of the person’s race,
color, religion, sex (including pregnancy, childbirth or medical conditions related to them, as well
as gender and perception of gender), sexual orientation, marital status, national origin, ancestry,
familial status, source of income, disability, medical condition, or age in any of the following ways:
•
Refusing to sell, rent, or lease.
•
Refusing to negotiate for a sale, rental, or lease.
•
Representing that housing is not available for inspection, sale, or rental when it is, in fact,
available.
•
Otherwise denying or withholding housing accommodations.
•
Providing inferior housing terms, conditions, privileges, facilities, or services.
•
Harassing a person in connection with housing accommodations.
•
Canceling or terminating a sale or rental agreement.
•
Providing segregated or separated housing accommodations.
•
Refusing to permit a person with a disability, at the person with a disability’s own expense,
to make reasonable modifications to a rental unit that are necessary to allow the person
with a disability “full enjoyment of the premises.” As a condition of making the modifications,
the landlord may require the person with a disability to enter into an agreement to restore
the interior of the rental unit to its previous condition at the end of the tenancy (excluding
reasonable wear and tear).
•
Refusing to make reasonable accommodations in rules, policies, practices, or services when
necessary to allow a person with a disability “equal opportunity to use and enjoy a dwelling”
(for example, refusing to allow a person with a disability’s companion or service dog).
38
Examples of Unlawful Discrimination
38 Government Code Sections 12926(p), 12927(c)(1),(e), 12948, 12955(d); Civil Code Sections 51, 51.2, 55.1(b). See Moskovitz et al.,
California Landlord-Tenant Practice, Section 2.27 (Cal. Cont. Ed. Bar 2011).
13
or disability.
39
California law also prohibits
discrimination based on any of the following:
•
A person’s medical condition or mental or
physical disability; or
•
Personal characteristics, such as a person’s
physical appearance or sexual orientation that
are not related to the responsibilities of a
tenant;
40
or
•
A perception of a person’s race, color,
religion, sex, sexual orientation, marital
status, national origin, ancestry, familial
status, source of income, disability or medical
condition, or a perception that a person is
associated with another person who may have
any of these characteristics.
41
Under California law, a landlord cannot use a
different financial or income standard for persons
who will be living together and combining
their incomes than standard used for married
persons who combine their incomes. In the
case of a government rent subsidy, a landlord
who is assessing a potential tenant’s eligibility
for a rental unit must use a financial or income
standard that is based on the portion of rent
that the tenant would pay.
42
A landlord cannot
apply rules, regulations or policies to unmarried
couples who are registered domestic partners
that do not apply to married couples.
43
Nor can
a landlord inquire as to the immigration status of
the tenant or prospective tenant or require that a
tenant or prospective tenant make any statement
concerning his or her immigration or citizenship
status.
44
However, a landlord can request
information or documents in order to verify an
applicant’s identity and financial qualifications.
45
It is illegal for landlords to discriminate against
families with children under 18. However, housing
for senior citizens may exclude families with
children. “Housing for senior citizens” includes
housing that is occupied only by persons who
are at least age 62, or housing that is operated
for occupancy by persons who are at least age
55 and that meets other occupancy, policy and
reporting requirements stated in the law.
46
Limited exceptions for single rooms
and roommates
If the owner of an owner-occupied, single-family
home rents out a room in the home to a roomer
or a boarder, and there are no other roomers or
boarders living in the household, the owner is not
subject to the restrictions listed under “Examples
of unlawful discrimination” on page 12.
However, the owner cannot make oral or
written statements, or use notices or
39 Government Code Sections 12926(p), 12927(e), 12955(a),(d). See Fair Employment and Housing Act, Government Code Section 12900
and following; federal Fair Housing Act, 42 United States Code Section 3601 and following.
40 Civil Code Sections 51, 51.2, 53; Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142 [278 Cal.Rptr. 614].
41 Government Code Section 12955(m), Civil Code Section 51.
42 Government Code Sections 12955(n),(o).
43 Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142 [278 Cal.Rptr. 614].
44 Civil Code Section 1940.3; California Practice Guide, Landlord-Tenant, Paragraph 2:569.1 (Rutter Group 2011).
45 California Practice Guide, Landlord-Tenant, Paragraph 2.553 citing Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824
[31 Cal.Rptr.3d 565]. See Civil Code Section 1940.3.
46 42 United States Code Section 3607(b), Civil Code Section 51.3(b)(1). “Housing for senior citizens” also includes: Housing that is pro-
vided under any state or federal program that the Secretary of Housing and Urban Development has determined is specifically designed
and operated to assist elderly persons (42 United States Code Section 3607(b)); or a housing development that is developed, substan-
tially rehabilitated or substantially renovated for senior citizens and that has the minimum number of dwelling units required by law for
the type of area where the housing is located (for example, 150 dwelling units built after January, 1996 in large metropolitan areas) (Civil
Code Sections 51.2, 51.3. Government Code Section 12955.9. See Marina Point Ltd. v. Wolfson (1982) 30 Cal.3d 721 [180 Cal.Rptr.
496]). While the law prohibits unlawful age discrimination, housing for homeless youth is both permitted and encouraged. (Government
Code Section 11139.3.)
14
advertisements which indicate any preference,
limitation, or discrimination based on race, color,
religion, sex, sexual orientation, marital status,
national origin, ancestry, familial status, source of
income, or disability.
47
Further, the owner cannot
discriminate on the basis of medical condition
or age.
48
A person in a single-family dwelling who
advertises for a roommate may express a
preference on the basis of gender, if living areas
(such as the kitchen, living room, or bathroom)
will be shared by the roommate.
49
Resolving housing discrimination problems
If you are a victim of housing discrimination
(for example, if a landlord refuses to rent to you
because of your race or national origin), you may
have several legal remedies, including:
•
Recovery of out-of-pocket losses.
•
An injunction prohibiting the unlawful practice.
•
Access to housing that the landlord
denied you.
•
Damages for emotional distress.
•
Civil penalties or punitive damages.
•
Attorney’s fees.
Sometimes, a court may order the landlord
to take specific action to stop unlawful
discrimination. For example, the landlord may be
ordered to advertise vacancies in newspapers
published by ethnic minority groups, or to place
fair housing posters in the rental office.
A number of resources are available to help
resolve housing discrimination problems:
•
Local fair housing organizations (often
known as fair housing councils). Look in
the white (business) and yellow pages of
the phone book. The National Fair Housing
Alliance maintains a searchable database
of local organizations that advocate for fair
housing at www.Fairhousing.org.
•
Local California apartment association
chapters. Look in the white (business) and
yellow pages of the phone book. The California
Apartment Association maintains a list of local
apartment association chapters at
www.caanet.org.
•
Local government agencies. Look in the white
pages of the phone book under City or County
Government Offices, or call the offices of local
elected officials (for example, your city council
representative or your county supervisor).
•
The California Department of Fair
Employment and Housing investigates
housing discrimination complaints (but not
other kinds of landlord-tenant problems).
The department’s Housing Enforcement Unit
can be reached at (800) 233-3212
TTY (800) 700-2320. You can learn
about the department’s complaint process
at www.dfeh.ca.gov.
•
The U.S. Department of Housing and Urban
Development (HUD) enforces the federal fair
housing law, which prohibits discrimination
based on sex, race, color, religion, national
origin, familial status, and handicap
(disability). To contact HUD, look in the white
pages of the phone book under United States
Government Offices, or go to www.hud.gov.
•
Legal aid organizations provide free
legal advice, representation, and other
legal services in noncriminal cases to
economically disadvantaged persons.
Legal aid organizations are located throughout
the state. Look in the yellow pages of the
phone book under Attorneys, or go to www.
lawhelpcalifornia.org/CA/StateDirectory.cfm.
47 Government Code Sections 12927(a)(2)(A), 12955(c).
48 Civil Code Sections 51,51.2, Government Code Section 12948.
49 Government Code Section 12927(c)(2)(B).
15
The Legal Aid Association of California also
maintains a directory of legal aid organizations
at www.calegaladvocates.org.
•
Private attorneys. You may be able to hire a
private attorney to take legal action against a
landlord who has discriminated against you.
For the names of attorneys who specialize in
housing discrimination cases, call your county
bar association or an attorney referral service.
You must act quickly if you believe that a
landlord has unlawfully discriminated against you.
The time limits for filing housing discrimination
complaints are short. For example, a complaint
to the Department of Fair Employment and
Housing must be filed within one year from the
date of the discriminatory act.
50
First, write down
what happened, including dates and the names
of those involved. Then, contact one of the
resources listed above for advice and help.
BeFore You agree to rent
Before you decide on a rental unit, there are
several other points to consider. For example: Is
an oral rental agreement legally binding? What
are the differences between a lease and a rental
agreement? What are some of the advantages
and disadvantages of each? This section
answers these and other questions.
RENTAL AGREEMENTS AND LEASES
General information
Before you can rent a rental unit, you and
the landlord must enter into one of two kinds of
agreements: a periodic rental agreement or a
lease. The periodic rental agreement or lease
creates the tenant’s right to live in the rental
unit. The tenant’s right to use and possess the
landlord’s rental unit is called a tenancy.
A periodic rental agreement states the length
of time (the number of days) between the rent
payments—for example a week (seven days) or a
month (30 days). The length of time between rent
payments is called the rental period.
A periodic rental agreement that requires one
rent payment each month is a month-to-month
rental agreement, and the tenancy is a month-
to-month tenancy.
51
The month-to-month rental
agreement is by far the most common kind of
rental agreement, although longer (or shorter)
rental periods can be specified.
If the periodic rental agreement requires that
rent be paid once a week, it is a week-to-week
rental agreement and the tenancy is a week-to-
week tenancy.
52
In effect, a periodic rental agreement expires
at the end of each period for which the tenant
has paid rent, and is renewed by the next rent
payment.
53
A periodic rental agreement does not
state the total number of weeks or months that
the agreement will be in effect. The tenant can
continue to live in the rental unit as long as the
tenant continues to pay rent, and as long as the
landlord does not ask the tenant to leave.
In a periodic rental agreement, the length
of time between the rent payments (the rental
period) also establishes three things:
•
How often the tenant must pay rent;
•
The amount of advance notice that the tenant
must give the landlord, and that the landlord
must give the tenant, if either decides to
terminate (end) the tenancy; and
•
The amount of advance notice the landlord
must give the tenant if the landlord decides
to change the terms of the rental agreement
other than the rent.
54
(Special rules apply
50 Government Code Section 12980(b).
51 Civil Code Section 1944.
52 Civil Code Section 1944.
53 Civil Code Sections 1945, 1946, 1946.1.
54 Civil Code Sections 827(a), (b).
16
to the amount of advance notice that the
landlord must give the tenant to raise the rent
(see pages 31–33).)
Oral rental agreements
In an oral rental agreement, you and the
landlord agree orally (not in writing) that you
will rent the rental unit. In addition, you agree
to pay a specified rent for a specified period of
time —for example, a week or a month. This kind
of rental agreement is legally binding on both
you and the landlord, even though it is not in
writing unless a tenant and a landlord agree to
the lease of a rental unit for more than one year,
the agreement must be in writing.
55
If such an
agreement is not in writing, it is not enforceable.
If you have a valid oral agreement and later
have a disagreement with your landlord, you will
have no written proof of the terms of your rental
agreement. Therefore, it’s usually best to have a
written rental agreement.
However, even if the agreement is oral, the
landlord must give you a written statement
regarding the name, street address, and phone
number of the landlord or agent for receipt of
legal notices; the contact information for the
person who is to accept the rent; and how the
rent is to be paid (for example by cash, check or
money order.)
56
It’s especially important to have a written
rental agreement if your tenancy involves special
circumstances, such as any of the following:
•
You plan to live in the unit for a long time (for
example, nine months or a year);
•
Your landlord has agreed to your having a pet
or water-filled furniture (such as a waterbed);
or
•
The landlord has agreed to pay any expenses
(for example, utilities or garbage removal) or to
provide any services (for example, a gardener).
Written rental agreements
A written rental agreement is a periodic rental
agreement that has been put in writing. The
written rental agreement specifies all the terms
of the agreement between you and the landlord
—for example, it states the rent, the length of
time between rent payments, and the landlord’s
and your obligations. It may also contain clauses
on pets, late fees, and amount of notice.
The length of time between rent payments is
important. In most cases, the amount of advance
notice that the landlord gives you when notifying
you of changes in the terms of the tenancy must
be the same as the length of time between rent
payments. For example, if you have a month-to-
month rental agreement, the landlord usually
must give you 30 days’ advance written notice of
changes such as an increase in the charge for
parking or an increase in the security deposit.
In addition, the amount of advance written
notice that you give the landlord before you
move out of the rental unit must be the same as
the length of time between rent payments. For
example, in a month-to-month rental agreement,
you must give the landlord at least 30 days’
advance written notice in order to end the rental
agreement (see page 49–50). If you have a
week-to-week rental agreement, you must give
the landlord at least seven days’ advance written
notice in order to end the rental agreement.
Normally, the amount of advance written notice
that the landlord gives the tenant to change the
terms of the tenancy must be, at a minimum,
the same as the length of time between
rent payments. The landlord and tenant can
specifically agree in writing to a shorter amount
of notice (a shorter notice period).
57
A landlord
and a tenant who have a month-to-month rental
agreement might agree to 10 days’ advance
written notice for a change in the terms of the
55 Civil Code Section 1962(b).
56 Civil Code Sections 1091, 1624(a)(3).
57 Civil Code Section 827(a), 1946.
17
agreement (other than the rent). This would
allow the landlord, for example, to increase the
charge for parking or end the tenancy by giving
the tenant 10 days’ advance written notice.
Similarly, the tenant could end the tenancy by
giving the landlord 10 days’ advance written
notice. However, the notice period agreed to by
the landlord and the tenant can never be shorter
than seven days.
58
If you have a written periodic rental agreement,
special rules apply to the amount of advance
notice that the landlord must give you to raise
the rent (see pages 31–33).
Leases
A lease states the total number of months that
the lease will be in effect—for example, six or 12
months. Most leases are in writing, although oral
leases are legal. If the lease is for more than one
year, it must be in writing.
59
It is important to understand that, even though
the lease requires the rent to be paid monthly,
you are bound by the lease until it expires (for
example, at the end of 12 months). This means
that you must pay the rent and perform all of
your obligations under the lease during the entire
lease period.
60
There are some advantages to having a lease.
If you have a lease, the landlord cannot raise
your rent while the lease is in effect, unless the
lease expressly allows rent increases. Also, the
landlord cannot evict you while the lease is in
effect, except for reasons such as your damaging
the property or failing to pay rent.
A lease gives the tenant the security of a
long-term agreement at a known cost. Even if
the lease allows rent increases, the lease should
specify a limit on how much and how often the
rent can be raised.
The disadvantage of a lease is that if you need
to move, a lease may be difficult for you to break,
especially if another tenant can’t be found to take
over your lease. If you move before the lease
ends, the landlord may have a claim against you
for the rent for the rest of the lease term.
Before signing a lease, you may want to talk
with an attorney, legal aid organization, housing
clinic, or tenant-landlord program to make sure
that you understand all of the lease’s provisions,
your obligations, and any risks that you may face.
SHARED UTILITY METERS
Some buildings have a single gas or electric
meter that serves more than one rental unit. In
other buildings, a tenant’s gas or electric meter
may also measure gas or electricity used in a
common area, such as the laundry room or the
lobby. In situations like these, the landlord must
disclose to you that utility meters are shared
before you sign the rental agreement or lease.
61
If you become a tenant, the landlord must reach
an agreement with you, which must be in writing,
about who will pay for the shared utilities (see
page 22).
Rental units in older buildings may not have
separate water meters or submeters. California
law does not specifically regulate how landlords
bill tenants for water and sewer utilities. Ask the
58 Civil Code Section 827(a).
59 Civil Code Sections 1091, 1624(a)(3).
60 However, the tenant’s obligation to pay rent depends on the landlord’s living up to his or her obligations under the implied warranty of
habitability. See discussion of “Repairs and Habitability” (pages 36–40) and “Having Repairs Made” (pages 40–46).
61 Civil Code Section 1940.9, Public Utilities Code Section 739.5. See California Practice Guide, Landlord-Tenant, Paragraphs 2:170.1–
2:170.9 (Rutter Group 2011). See discussion of utilities billing in Moskovitz et al., California Landlord-Tenant Practice, Paragraph
4.41A-4.41E (Cal Cont. Ed. Bar 2011). There it is discussed that the California Public Utilities Commission (CPUC) has held that it has no
jurisdiction in the vast majority of landlord-tenant billing relationships. Because there is no direct regulation or guidance from the CPUC
or statute, it is important that all facets of the landlord-tenant billing relationship for utilities are agreed to in writing.
18
landlord if the rental unit that you plan to rent
has its own water meter or submeter. If it does
not, and if the landlord will bill you for water or
sewer utilities, be sure that you understand how
the landlord will calculate the amount that you
will be billed.
62
TRANSLATION OF PROPOSED
RENTAL AGREEMENT
A landlord and a tenant may negotiate primarily
in Spanish, Chinese, Tagalog, Vietnamese or
Korean for the rental, lease, or sublease of
a rental unit. In this situation, the landlord
must give the tenant a written translation of
the proposed lease or rental agreement in the
language used in the negotiation before the
tenant signs it.
63
This rule applies whether the
negotiations are oral or in writing. The rule does
not apply if the rental agreement is for one month
or less.
The landlord must give the tenant the written
translation of the lease or rental agreement
whether or not the tenant requests it. The
translation must include every term and condition
in the lease or rental agreement, but may retain
elements such as names, addresses, numerals,
dollar amounts and dates in English. It is never
sufficient for the landlord to give the written
translation of the lease or rental agreement to
the tenant after the tenant has signed it.
However, the landlord is not required to give
the tenant a written translation of the lease or
rental agreement if all of the following are true:
•
The Spanish-, Chinese-, Tagalog-, Vietnamese-, or
Korean-speaking tenant negotiated the rental
agreement through his or her own interpreter;
and
•
The tenant’s interpreter is able to speak
fluently and read with full understanding
English, as well as Spanish, Chinese, Tagalog,
Vietnamese, or Korean (whichever was used in
the negotiation); and
•
The interpreter is not a minor (under 18 years
of age); and
•
The interpreter is not employed or made
available by or through the landlord.
If a landlord who is required to provide a
written translation of a lease or rental agreement
in one of these languages fails to do so, the
tenant can rescind (cancel) the agreement.
64
wHen You Have decIded
to rent
Before you sign a rental agreement or a lease,
read it carefully so that you understand all of its
terms. What kind of terms should be in the rental
agreement or lease? Can the rental agreement or
lease limit the basic rights that the law gives to
all tenants? How much can the landlord require
you to pay as a security deposit? This section
answers these and other questions.
62 See discussion of utility billing in Moskovitz et al., California Landlord-Tenant Practice, Sections 4.41A-4.41E (Cal. Cont. Ed. Bar 2009).
There it is discussed that the California Public Utilities Commission (CPUC) has held that it has no jurisdiction in the vast majority of
landlord-tenant billing relationships. Because there is no direct regulation or guidance from the CPUC or statute, it is important that all
facets of the landlord-tenant billing relationship for utilities be agreed to in writing.
63 Civil Code Section 1632(b). The purpose of this law is to ensure that the Spanish-, Chinese-, Tagalog-, Vietnamese-, or Korean-speaking
person has a genuine opportunity to read the written translation of the proposed agreement that has been negotiated primarily in one of
these languages, and to consult with others, before signing the agreement.
64 Civil Code Section 1632(k). See Civil Code Section 1688 and following on rescission of contract.
19
WHAT THE RENTAL AGREEMENT OR LEASE
SHOULD INCLUDE
Most landlords use printed forms for their
leases and rental agreements. However, printed
forms may differ from each other. There is no
standard rental agreement or standard lease!
Therefore, carefully read and understand the
entire document before you sign it.
The written rental agreement or lease should
contain all of the promises that the landlord or
the landlord’s agent has made to you, and should
not contain anything that contradicts what the
landlord or the agent told you. If the lease or
rental agreement refers to another document,
such as “tenant rules and regulations,” get a
copy and read it before you sign the written
agreement.
Don’t feel rushed into signing. Make sure that
you understand everything that you’re agreeing to
by signing the rental agreement or lease. If you
don’t understand something, ask the landlord
to explain it to you. If you still don’t understand,
discuss the agreement with a friend, or with an
attorney, legal aid organization, tenant-landlord
program, or housing clinic.
Key terms
The written rental agreement or lease should
contain key terms, such as the following:
•
The names of the landlord and the tenant.
•
The address of the rental unit.
•
The amount of the rent.
•
When the rent is due, to whom it is to be paid,
and where it is to be paid.
•
The amount and purpose of the security
deposit (see pages 24–26).
•
The amount of any late charge or returned
check fee (see page 30).
•
Whether pets are allowed.
•
The number of people allowed to live in the
rental unit.
•
Whether attorney’s fees can be collected
from the losing party in the event of a lawsuit
between you and the landlord.
•
Who is responsible for paying utilities (gas,
electric, water, and trash collection).
65
•
If the rental is a house or a duplex with a yard,
who is responsible for taking care of the yard.
•
Any promises by the landlord to make repairs,
including the date by which the repairs will be
completed.
•
Other items, such as whether you can sublet
the rental unit (see page 35–36) and the
conditions under which the landlord can
inspect the rental unit (see pages 33–34).
In addition, the rental agreement or lease
must disclose:
•
The name, address, and telephone number of
the authorized manager of the rental property
and an owner (or an agent of the owner)
who is authorized to receive legal notices for
the owner. (This information can be posted
conspicuously in the building instead of being
disclosed in the rental agreement or lease.)
•
The name, address, and telephone number of
the person or entity to whom rent payments
must be made. If you may make your rent
payment in person, the agreement or lease
must state the usual days and hours that rent
may be paid in person. Or, the document may
state the name, street address, and account
number of the financial institution where rent
payments may be made (if it is within five
miles of the unit) or information necessary
to establish an electronic funds transfer for
paying the rent.
65 Civil Code Section 1942.2. If your landlord is obligated to pay utilities and has failed to pay, you may take over a utility service account if
it is pending termination. This law requires utility service providers to give the termination of service notice in writing to the tenant in the
following languages: English, Spanish, Chinese, Tagalog, Vietnamese, and Korean. A tenant who has made a payment to a utility
pursuant to Section 777, 777.1, 10009, 10009.1, 12822, 12822.1, 16481, or 1648.1 of the Public Utilities Code may deduct the
payment from the rent.
20
•
The form in which rent payments must be
made (for example, by check or money
order).
66
(As a general rule, the landlord
cannot require that you make rent payments in
cash. (See pages 29–30.)
67
If the rental agreement is oral, the landlord or
the landlord’s agent must give the tenant, within
15 days, a written statement containing the
information in the foregoing three bullet points.
The tenant may request a copy of this written
statement each year thereafter.
68
Every rental agreement or lease also must
contain a written notice that the California
Department of Justice maintains a Web site at
www.meganslaw.ca.gov that provides information
about specified registered sex offenders. This
notice must be in legally required language.
69
A rental agreement or lease may contain
other terms. Examples include whether you must
park your car in a certain place, and whether
you must obtain permission from the landlord
before having a party. A landlord may lawfully
prohibit smoking anywhere on rental property. If
the landlord chooses to do so, then the rental
agreement must specify where on the property
smoking is prohibited. If a landlord chooses to
prohibit smoking after a rental agreement is
entered into, the landlord must provide you with
adequate notice of this change.
69.1
A landlord
cannot prevent you from posting political signs,
as long as the sign is less than six square feet In
size and is not otherwise prohibited by law. If no
local ordinance gives time limits for how long you
may have the sign up, your landlord may establish
a reasonable time limit for the posting and
removal of the sign. A “‘reasonable’” time period
means at least 90 days before the election or
vote to which the sign refers and at least 15 days
after.
69.2
It is important that you understand all of the
terms of your rental agreement or lease. If you
don’t comply with them, the landlord may have
grounds to evict you.
Don’t sign a rental agreement or a lease
if you think that its terms are unfair. If a term
doesn’t fit your needs, try to negotiate a more
suitable term (for example, a smaller security
deposit or a lower late fee). It’s important that
any agreed-upon change in terms be included in
the rental agreement or lease that both you and
the landlord sign. If you and the landlord agree
to change a term, the change can be made in
handwriting in the rental agreement or lease.
Both of you should then initial or sign in the area
immediately next to the change to show your
approval of the change. Or, the document can be
retyped with the new term included in it.
If you don’t agree with a term in the rental
agreement or lease, and can’t negotiate a better
term, carefully consider the importance of the
term, and decide whether or not you want to sign
the document.
The owner of the rental unit or the person
who signs the rental agreement or lease on
the owner’s behalf must give you a copy of the
document within 15 days after you sign it.
70
Be
sure that your copy shows the signature of the
owner or the owner’s agent, in addition to your
signature. Keep the document in a safe place.
66 Civil Code Section 1961-1962.7. See Muskovitz et al, California Landlord-Tenant Practice, Section 1.21A (Cal. Cont. Ed. Bar 2011);
California Practice Guide, Landlord-Tenant, Paragraphs 2:147-147.6 (Rutter Group 2011).
67 Civil Code Section 1947.3.
68 Civil Code Section 1962(b).
69 Civil Code Section 2079.10a, Penal Code Section 290.46. The required language differs depending on the date of the lease or rental
agreement. See Appendix 5.
69.1 Civil Code Section 1947.5.
69.2 Civil Code Section 1940.4.
70 Civil Code Section 1962(a)(4).
Continued on page 22
21
Alterations to Accommodate a Tenant With a Disability
A landlord must allow a tenant with a disability to make reasonable modifications to the
rental unit to the extent necessary to allow the tenant “full enjoyment of the premises.”
71
The
tenant must pay for the modifications. As a condition of making the modifications, the landlord
may require the tenant to enter into an agreement to restore the interior of the rental unit to its
previous condition at the end of the tenancy. The landlord cannot require an additional security
deposit in this situation. However, the landlord and tenant may agree, as part of the tenant’s
agreement to restore the rental unit, that the tenant will pay a “reasonable estimate” of the
restoration cost into an escrow account.
72
71 Civil Code Section 54.1(b)(3)(A). See Examples of Unlawful Discrimination page 12.
72 Civil Code Section 54.1(b)(3)(A).
22
Tenant’s basic legal rights
Tenants have basic legal rights that are always
present, no matter what the rental agreement
or lease states. These rights include all of the
following:
•
Limits on the amount of the security deposit
that the landlord can require you to pay (see
pages 24–26).
•
Limits on the landlord’s right to enter the
rental unit (see pages 33–36).
•
The right to a refund of the security deposit,
or a written accounting of how it was used,
after you move (see pages 53–65).
•
The right to sue the landlord for violations of
the law or your rental agreement or lease.
•
The right to repair serious defects in the rental
unit and to deduct certain repair costs from
the rent, under appropriate circumstances
(see pages 41–42).
•
The right to withhold rent under appropriate
circumstances (see pages 43–45).
•
Rights under the warranty of habitability
(see pages 36–47).
•
Protection against retaliatory eviction (see
pages 79–80).
These and other rights will be discussed
throughout the rest of this booklet.
Landlord’s and tenant’s duty of
good faith and fair dealing
Every rental agreement and lease requires that
the landlord and tenant deal with each other fairly
and in good faith. Essentially, this means that
both the landlord and the tenant must treat each
other honestly and reasonably. This duty of good
faith and fair dealing is implied by law in every
rental agreement and every lease, even though
the duty probably is not expressly stated.
73
Shared utilities
If the utility meter for your rental unit is
shared with another unit or another part of the
building (see page 17), then the landlord must
reach an agreement with you on who will pay for
the shared utilities. This agreement must be in
writing (it can be part of the rental agreement or
lease), and can consist of one of the following
options:
•
The landlord can pay for the utilities provided
through the meter for your rental unit by
placing the utilities in the landlord’s name;
•
The landlord can have the utilities in the area
outside your rental unit put on a separate
meter in the landlord’s name; or
•
You can agree to pay for the utilities provided
through the meter for your rental unit to areas
outside your rental unit.
74
LANDLORD’S DISCLOSURES
Lead-based paint
If the rental unit was constructed before
1978, the landlord must comply with all of these
requirements:
•
The landlord must disclose the presence of
known lead-based paint and lead-based paint
hazards in the dwelling before the tenant signs
the lease or rental agreement. The landlord
also must give the tenant a copy of the federal
government’s pamphlet, “Protect Your Family
From Lead in Your Home” (available by calling
73 Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578 [22 Cal.Rptr.3d 832]. A typical legal description of the implied covenant of
good faith and fair dealing is that neither party will do anything that will injure the right of the other party to receive the benefits of the
agreement. See the Andrews decision for a discussion of the closely related implied covenant of quiet enjoyment.
74 Civil Code Section 1940.9. This section also provides remedies for violations.
23
(800) 424-LEAD, or online at www.epa.gov/
lead/pubs/leadpdfe.pdf), before the tenant
signs the lease or rental agreement.
75
•
The landlord is not required to conduct any
evaluation of the lead-based paint, or to
remove it.
76
•
The lease or rental agreement must contain
a lead warning statement in legally-required
language.
77
•
The landlord also must give potential
tenants and tenants a written Disclosure of
Information on Lead-Based Paint and/or Lead-
Based Paint Hazards.
78
Periodic pest control treatments
A pest control company must give written
notice to the landlord and tenants of rental
property regarding pesticides to be used when
the company provides an initial treatment as part
of an ongoing pest-control service contract. The
landlord must give a copy of this notice to every
new tenant who will occupy a rental unit that will
be serviced under the service contract.
79
Asbestos
Residential property built before 1981 may
contain asbestos. A leading reference for
landlords recommends that landlords make
asbestos disclosures to tenants whenever
asbestos is discovered in the rental property.
(This book also contains detailed information
on asbestos disclosures, and protections that
landlords must provide their employees.)
80
Carcinogenic material
A landlord with 10 or more employees must
disclose the existence of known carcinogenic
material (for example, asbestos) to prospective
tenants.
81
Methamphetamine contamination
Residential property that has been used
for methamphetamine production may be
significantly contaminated.
A local health officer who inspects rental
property and finds that it is contaminated with a
hazardous chemical related to methamphetamine
laboratory activities must issue an order
prohibiting the use or occupancy of the property.
This order must be served on the property owner
and all occupants. The owner and all occupants
then must vacate the affected units until the
officer sends the owner a notice that the property
requires no further action.
The owner must give written notice of the
health officer’s order and a copy of it to potential
tenants who have completed an application to
rent the contaminated property. Before signing a
rental agreement, the tenant must acknowledge
in writing that he or she has received the notice
and order. The tenant may void (cancel) the rental
agreement if the owner does not does not comply
with these requirements. The owner must comply
with these requirements until he or she receives
75 California Practice Guide, Landlord-Tenant, Paragraphs 2:104.20-2:104.23 (Rutter Group 2011); 42 United States Code Sections
4851b, 4852d (this disclosure requirement does not apply to dwellings with zero bedrooms, or to housing for elderly or disabled persons
(unless a child younger than six is expected to live in the housing)); 24 Code of Federal Regulations Section 35.88; see Health and Safety
Code Section 17920.10 (dwellings that contain lead hazards).
76 24 Code of Federal Regulations Section 35.88.
77 24 Code of Federal Regulations Section 35.92. See Appendix 5.
78 Moskovitz et al., California Landlord-Tenant Practice, Section 1.29 (Cal. Cont. Ed. Bar 2011); 24 Code of Federal Regulations Sections
35.88, 35.92. The disclosure form is available at www.epa.gov/lead/pubs/lesr_eng.pdf and is reproduced in Appendix 5.
79 Business and Professions Code Section 8538, Civil Code Section 1940.8.
80 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 245-248 (NOLO Press 2011).
See also: Portman & Brown, California Tenants Rights, pages 184-198 (NOLO Press 2010).
81 Moskovitz et al., California Landlord-Tenant Practice, Section 1.29 (Cal. Cont. Ed. Bar 2011); Health and Safety Code Sections
25249.5-25249.13.
24
a notice from the health officer that the property
requires no further action.
82
These requirements took effect on January 1,
2006.
Demolition permit
The owner of a dwelling who has applied for a
permit to demolish the dwelling must give written
notice of this fact to a prospective tenant before
accepting any fee from the tenant or entering into
a rental agreement with the tenant. (The owner
must give notice to current tenants, including
tenants who haven’t moved in yet, before
applying for a permit.) The notice must state
the earliest approximate dates that the owner
expects the demolition to occur and that the
tenancy will end.
83
Military base or explosives
A landlord who knows that a rental unit is
within one mile of a closed military base in
which ammunition or military explosives were
used must give written notice of this fact to a
prospective tenant. The landlord must give the
tenant this notice before the tenant signs a
rental agreement.
84
Death in the rental unit
If a prior occupant of the rental unit died in
the unit within the last three years, the owner
or the owner’s agent must disclose this fact to
a prospective tenant when the tenant offers to
rent or lease the unit. The owner or agent must
disclose the manner of death, but is not required
to disclose that the occupant was ill with, or died
from, AIDS. However, the owner or agent cannot
intentionally misrepresent the cause of death in
response to a direct question.
85
Condominium conversion project
A rental unit may be in a condominium
conversion project. A condominium conversion
project is an apartment building that has
been converted into condominiums or a
newly constructed condominium building that
replaces demolished residential housing. Before
the potential tenant signs a lease or rental
agreement, the owner or subdivider of the
condominium project must give the tenant
written notice that:
•
The unit has been approved for sale, and may
be sold, to the public, and
•
The tenant’s lease may be terminated (ended)
if the unit is sold, and
•
The tenant will be informed at least 90 days
before the unit is offered for sale, and
•
The tenant normally will be given a first option
to buy the unit.
The notice must be in legally required
language. This notice requirement applies only
to condominium conversion projects that have
five or more dwelling units and that have received
final approval. If the notice is not given, the
tenant may recover actual moving expenses not
exceeding $1,100 and the first month’s rent on
the tenant’s new rental unit, if any, not to exceed
$1,100. These notice provisions do not apply
to projects of four dwelling units or less, or as a
result of transfers due to: court order (including
probate proceedings), foreclosure proceedings, or
trusts.
86
BASIC RULES GOVERNING
SECURITY DEPOSITS
At the beginning of the tenancy, the landlord
most likely will require you to pay a security
deposit. The landlord can use the security
deposit, for example, if you move out owing rent,
damage the rental unit beyond normal wear and
tear, or leave the rental less clean than when you
moved in.
87
83 Civil Code Section 1940.6.
84 Civil Code Section 1940.7.
85 Civil Code Section 1710.2.
86 Government Code Section 66459; California Practice Guide, Landlord-Tenant, Paragraphs 5:313.5-5:313.9 (Rutter Group 2011).
See Appendix 5 for the required language.
87 Civil Code Section 1950.5(b).
25
Under California law, a lease or rental
agreement cannot say that a security deposit
is nonrefundable.
88
This means that when the
tenancy ends, the landlord must return to you any
payment that is a security deposit, unless the
landlord properly uses the deposit for a lawful
purpose, as described on pages 26 and 53–65.
Almost all landlords charge tenants a security
deposit. The security deposit may be called last
month’s rent, security deposit, pet deposit, key
fee, or cleaning fee. The security deposit may be
a combination, for example, of the last month’s
rent plus a specific amount for security. No
matter what these payments or fees are called,
the law considers them all, as well as any other
deposit or charge, to be part of the security
deposit.
89
The one exception to this rule is
stated in the next paragraph.
The law allows the landlord to require a
tenant to pay an application screening fee, in
addition to the security deposit (see page 10).
90
The application screening fee is not part of the
security deposit. However, any other fee charged
by the landlord at the beginning of the tenancy
to cover the landlord’s costs of processing a new
tenant is part of the security deposit.
91
Here are
examples of the two kinds of fees:
•
Application screening fee—A landlord might
charge you an application screening fee
to cover the cost of obtaining information
about you, such as checking your personal
references and obtaining your credit report
(see page 10). The application screening fee
is not part of the security deposit. Therefore,
it is not refundable as part of the security
deposit.
•
New tenant processing fee—A landlord might
charge you a fee to reimburse the landlord for
the costs of processing you as a new tenant.
For example, at the beginning of the tenancy,
the landlord might charge you for providing
application forms, listing the unit for rent,
interviewing and screening you, and similar
purposes. These kinds of fees are part of the
security deposit.
92
Therefore, these fees are
refundable as part of the security deposit,
unless the landlord properly uses the deposit
for a lawful purpose, as described on pages
24 and 53–65.
The law limits the total amount that the
landlord can require you to pay as a security
deposit. The total amount allowed as security
depends on whether the rental unit is
unfurnished or furnished and whether you have
a waterbed.
•
Unfurnished rental unit: The total amount that
the landlord requires as security cannot be
more than the amount of two months’ rent. If
you have a waterbed, the total amount allowed
as security can be up to two-and-a-half times
the monthly rent.
•
Furnished rental unit: The total amount that
the landlord requires as security cannot be
more than the amount of three months’ rent.
If you have a waterbed, the total amount
allowed as security can be up to three-and-a-
half times the monthly rent.
•
Plus first month’s rent: The landlord can
require you to pay the first month’s rent in
addition to the security deposit.
93
The landlord normally cannot require that you
pay the security deposit in cash. (See page 29.)
88 Civil Code Section 1950.5(m); Portman and Brown, California Tenants’ Rights, page 235 (NOLO Press 2010).
89 Civil Code Section 1950.5(b).
90 Civil Code Sections 1950.5(b), 1950.6.
91 Civil Code Section 1950.5(b).
92 Civil Code Section 1950.5(b).
93 Civil Code Section 1950.5(c). These limitations do not apply to long-term leases of at least six months, in which advance payment of six
months’ rent (or more) may be charged. Civil Code Section 1940.5 sets the limits on security deposits when the tenant has a waterbed or
water-filled furniture. The section also allows the landlord to charge a reasonable fee to cover the landlord’s administrative costs.
26
Security deposit example: Suppose that you
have agreed to rent an unfurnished apartment
for $500 a month. Before you move in, the
landlord can require you to pay up to two
times the amount of the monthly rent as a
security deposit ($500 x 2 = $1,000). The
landlord also can require you to pay the first
month’s rent of $500, plus an application
screening fee of up to $42.41, in addition to
the $1,000 security deposit. This is because
the first month’s rent and the application
screening fee are not part of the security
deposit.
Suppose that the landlord has required you to
pay a $1,000 security deposit (the maximum
allowed by law for an unfinished unit when the
rent is $500 a month). The landlord cannot
also demand, for example, a $200 cleaning
deposit, a $15 key deposit, or a $50 fee to
process you as a new tenant. The landlord
cannot require any of these extra fees
because the total of all deposits then would
be more than the $1,000 allowed by law when
the rent is $500 a month.
Suppose that you ask the landlord to make
structural, decorative or furnishing alterations
to the rental unit, and that you agree to pay a
specific amount for the alterations. This amount
is not subject to the limits on the amount of the
security deposit discussed on pages 24–25,
and is not part of the security deposit. Suppose,
however, that the alterations that you have
requested involve cleaning or repairing damage
for which the landlord may charge the previous
tenant’s security deposit. In that situation, the
amount that you pay for the alterations would
be subject to the limits on the amount of the
security deposit and would be part of the
security deposit.
94
A payment that is a security deposit cannot be
nonrefundable.
95
However, when you move out
of the rental, the law allows the landlord to keep
part or all of the security deposit in any one or
more of the following situations:
•
You owe rent;
•
You leave the rental less clean than when you
moved in;
•
You have damaged the rental beyond normal
wear and tear; and
•
You fail to restore personal property (such
as keys or furniture), other than because of
normal wear and tear.
If none of these circumstances is present, the
landlord must return the entire amount that you
have paid as security. However, if you have left
the rental very dirty or damaged beyond normal
wear and tear, for example, the landlord can keep
an amount that is reasonably necessary to clean
or repair the rental.
96
Deductions from security
deposits are discussed in detail on pages
53–65.
Make sure that your rental agreement or
lease clearly states that you have paid a security
deposit to the landlord and correctly states the
amount that you have paid. The rental agreement
or lease should also describe the circumstances
under which the landlord can keep part or all of
the security deposit. Most landlords will give you
a written receipt for all amounts that you pay as
a security deposit. Keep your rental agreement or
lease in case of a dispute.
97
THE INVENTORY CHECKLIST
You and the landlord or the landlord’s agent
should fill out the Inventory Checklist on pages
107–110 (or one like it). It’s best to do this
94 Civil Code Section 1950.5(c).
95 Civil Code Section 1950.5(m).
96 Civil Code Section 1950.5(b),(e).
97 Civil Code Section 1950.5(o) (describes evidence that proves the existence and amount of a security deposit).
27
before you move in, but it can be done two
or three days later, if necessary. You and the
landlord or agent should walk through the rental
unit together and note the condition of the items
included in the checklist in the “Condition Upon
Arrival” section.
Both of you should sign and date the
checklist, and both of you should keep a copy
of it. Carefully completing the checklist at
the beginning of the tenancy will help avoid
disagreements about the condition of the unit
when you move out. See additional suggestions
about the Inventory Checklist on page 107.
RENTER’S INSURANCE
Renter’s insurance protects the tenant’s
personal property from losses caused by fire or
theft. It also protects a tenant against liability
(legal responsibility) for many claims or lawsuits
filed by the landlord or others alleging that the
tenant has negligently (carelessly) injured another
person or damaged the person’s property.
Renter’s insurance usually only protects the
policyholder. It would not protect the roommate’s
personal property; in order to be protected, the
roommate must take out his or her own policy.
Carelessly causing a fire that destroys the
rental unit or another tenant’s property is an
example of negligence for which you could be
held legally responsible.
98
You could be required
to pay for the losses that the landlord or other
tenant suffers. Renter’s insurance would pay
the other party on your behalf for some or all of
these losses. For that reason, it’s often a good
idea to purchase renter’s insurance.
99
Renter’s insurance may not be available in
every area. If renter’s insurance is available, and
if you choose to purchase it, be certain that it
provides the protection you want and is fairly
priced. You should check with more than one
insurance company, since the price and type
of coverage may differ widely among insurance
companies. The price also will be affected by
how much insurance protection you decide to
purchase.
Your landlord probably has insurance that
covers the rental unit or dwelling, but you
shouldn’t assume that the landlord’s insurance
will protect you. If the landlord’s insurance
company pays the landlord for a loss that you
cause, the insurance company may then sue you
to recover what it has paid the landlord.
If you want to use a waterbed, the landlord can
require you to have a waterbed insurance policy
to cover possible property damage.
100
RENT CONTROL
Some California cities have rent control
ordinances that limit or prohibit rent
increases.
101
Some of these ordinances specify
procedures that a landlord must follow before
increasing a tenant’s rent, or that make evicting
a tenant more difficult for a landlord. Each
community’s ordinance is different.
For example, some ordinances allow landlords
to evict tenants only for “just cause.” Under
these ordinances, the landlord must state and
prove a valid reason for terminating a month-
to-month tenancy. Other cities don’t have this
requirement.
Some cities have boards that have the power
to approve or deny increases in rent. Other cities’
ordinances allow a certain percentage increase
in rent each year. Because of recent changes
in State law, all rent control cities now have
“vacancy decontrol.” This means that the landlord
can re-rent a unit at the market rate when the
tenant moves out voluntarily or when the landlord
terminates the tenancy for nonpayment of rent.
98 In general, every person is responsible for damages sustained by someone else as a result of the person’s carelessness.
(Civil Code Section 1714).
99 See discussion of renter’s insurance in Portman and Brown, California Tenants’ Rights, pages 313-314 (NOLO Press 2010).
100 Civil Code Section 1940.5(a).
101 See list of rent control cities in Appendix 2 on page 90.
28
Some ordinances make it more difficult for
owners to convert rentals into condominiums.
Some kinds of property cannot be subject to
local rent control. For example, property that was
issued a certificate of occupancy after February
1995 is exempt from rent control. Beginning
January 1, 1999, tenancies in single family
homes and condos are exempt from rent control
if the tenancy began after January 1, 1996.
102
A rent control ordinance may change the
landlord-tenant relationship in other important
ways besides those described here. Find out if
you live in a city with rent control. (See the list
of cities with rent control in Appendix 2.) Contact
your local housing officials or rent control board
for information. You can find out about the rent
control ordinance in your area (if there is one) at
your local law library,
103
or by requesting a copy
of your local ordinance from the city or county
clerk’s office. Some cities post information about
their rent control ordinances on their Web site
(for example, information about Los Angeles’ rent
control ordinance is available at www.lacity.org/
lahd).
lIvIng In tHe rental unIt
As a tenant, you must take reasonable care of
your rental unit and any common areas that you
use. You must also repair all damage that you
cause, or that is caused by anyone for whom you
are responsible, such as your family, guests, or
pets.
104
These important tenant responsibilities
are discussed in more detail under “Dealing with
Problems,” pages 36–47.
This section discusses other issues that can
come up while you’re living in the rental unit. For
example, can the landlord enter the rental unit
without notifying you? Can the landlord raise the
rent even if you have a lease? What can you do if
you have to move before the end of the lease?
PAYING THE RENT
When is rent due?
Most rental agreements and leases require
that rent be paid at the beginning of each rental
period. For example, in a month-to-month tenancy,
rent usually must be paid on the first day of the
month. However, your lease or rental agreement
can specify any day of the month as the day that
rent is due (for example, the 10th of every month
in a month-to-month rental agreement, or every
Tuesday in a week-to-week rental agreement).
As explained on page 19, the rental agreement
or lease must state the name and address of
the person or entity to whom you must make
rent payments. If this address does not accept
personal deliveries, you can mail your rent
payment to the owner at the stated name and
address. If you can show proof that you mailed
the rent to the stated name and address (for
example, a receipt for certified mail), the law
assumes that the rent is receivable by the owner
on the date of postmark.
105
It’s very important for you to pay your rent on
the day it’s due. Not paying on time might lead
to a negative entry on your credit report,
106
late
fees (see page 30), and even eviction (see pages
67–71).
102 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, page 81 and Appendix C (NOLO
Press 2011); and Civil Code Section 1954.52.
103 For example, see the discussions in Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities,
Appendix C (NOLO Press 2011) and California Practice Guide, Landlord-Tenant, Chapter 5 (Rutter Group 2011).
104 Civil Code Sections 1929, 1941.2.
105 Civil Code Section 1962(f).
106 If the landlord intends to report negative credit information about the tenant to a credit bureau, the landlord must disclose this intent to
the tenant. The landlord must give notice to the tenant, either before reporting the information, or within 30 days after reporting it. The
landlord may personally deliver the notice to the tenant or send it to the tenant by first-class mail. The notice may be in the rental agree-
ment. (Civil Code Section 1785.26; Moskovitz et al., California Landlord-Tenant Practice, Sections 1.29, 4.9 (Cal. Cont. Ed. Bar 2011).
29
Check or cash?
The landlord or landlord’s agent normally
cannot require you to pay rent in cash. However,
the landlord or agent can require you to pay rent
in cash if, within the last three months, you have
paid the landlord or agent with a check that has
been dishonored by the bank. (A dishonored
check is one that the bank returns without paying
because you stopped payment on it or because
your account did not have enough money in it.)
In order to require you to pay rent in cash,
the landlord must first give you a written notice
stating that your check was dishonored and that
you must pay cash for the period of time stated
by the landlord. This period cannot be more than
three months after you:
•
ordered the bank to stop payment on the
check, or
•
attempted to pay with a check that the
bank returned to the landlord because of
insufficient funds in your account.
The landlord must attach a copy of the
dishonored check to the notice. If the notice
changes the terms of your rental agreement,
the landlord must give you the proper amount of
advance notice (see pages 15–17).
107
These same rules apply if the landlord
requests that you pay the security deposit in
cash.
Example: Suppose that you have a month-to-
month rental agreement and that your rent is
due on the first of the month. Suppose that
the rental agreement does not specify the
form of rent payment (check, cash, money
order, etc.) or the amount of notice required
to change the terms of the agreement (see
pages 15–17).
On April 1, you give your landlord your rent
check for April. On April 11, your landlord
receives a notice from his bank stating that
your check has been dishonored because you
did not have enough money in your account.
On April 12, the landlord hands you a notice
stating that your check was dishonored and
that you must pay rent in cash for the next
three months. What are your rights and
obligations under these facts? What are the
landlord’s rights and obligations?
Unfortunately, the law that allows the landlord
to require cash payments does not clearly
answer these questions. The following is
based on a fair interpretation of the law.
The requirement that you pay rent in cash
changes the terms of your rental agreement
and takes effect in 30 days (on May 12). This
is because under your rental agreement, the
landlord must give you 30 days’ notice of
changes in it. (See pages 15–17.) Therefore,
you could pay your May 1 rent payment by
check. However, this might cause the landlord
to serve you with a 30-day notice to end the
tenancy (see pages 67-68). The requirement
that you pay rent in cash continues for three
months after the landlord received the notice
that your check was dishonored (through July
10). You would have to pay your June 1 and
July 1 rent payments in cash, if the tenancy
continues. What about your April 1 rent check
that was returned by the landlord’s bank? As
a practical matter, you should make the check
good immediately. If you don’t, the landlord
can serve you with a three-day notice, which
is the first step in an action to evict you (see
pages 67–71).
108
107 Civil Code Section 1947.3. Waiver of these provisions is void and unenforceable.
108 See discussion of late fees and dishonored check fees, pages 29–30. Paying by check with knowledge that the account has insufficient
funds and with intent to defraud is a crime. (Penal Code Section 476a.).
30
Obtaining receipts for rent payments
If you pay your rent in cash or with a money
order, you should ask your landlord for a signed
and dated receipt. Legally, you are entitled to a
written receipt whenever you pay your rent.
109
If
you pay with a check, you can use the canceled
check as a receipt. Keep the receipts or canceled
checks so that you will have records of your
payments in case of a dispute.
Late fees and dishonored check fees
A rental agreement cannot include a pre-
determined late fee. The exception to this rule is
when it would be difficult to figure out the actual
cost to the landlord caused by the late rent
payment. Even then, the pre-determined late fee
should not be more than a reasonable estimate
of costs that the landlord will face as a result of
the late payment. A late fee that is so high that
it amounts to a penalty is not legally valid.
110
Additionally, in some communities, late fees
are limited by local rent control ordinances. (See
“Rent Control,” pages 27–28.)
What if you’ve signed a lease or rental
agreement that contains a late-fee provision,
and you’re going to be late for the first time
paying your rent? If you have a good reason for
being late (for example, your paycheck was late),
explain this to your landlord. Some landlords
will waive (forgive) the late fee if there is a
good reason for the rent being late, and if the
tenant has been responsible in other ways. If the
landlord isn’t willing to forgive or lower the late
fee, ask the landlord to justify it (for example,
in terms of administrative costs for processing
the payment late). However, if the late fee is
reasonable, it probably is valid; you will have
to pay it if your rent payment is late, and if the
landlord insists.
The landlord also can charge the tenant a fee
if the tenant’s check for the rent (or any other
payment) is dishonored by the tenant’s bank. (A
dishonored check is often called a “bounced”
or “NSF” or “returned” check.) In order for the
landlord to charge the tenant a returned check
fee, the lease or rental agreement must authorize
the fee, and the amount of the fee must be
reasonable.
For example, a reasonable returned check
fee would be the amount that the bank charges
the landlord, plus the landlord’s reasonable
costs because the check was returned.
Under California’s “bad check” statute, the
landlord can charge a service charge instead
of the dishonored check fee described in this
paragraph. The service charge can be up to $25
for the first check that is returned for insufficient
funds, and up to $35 for each additional
check.
111
Partial rent payments
You will violate your lease or rental agreement
if you don’t pay the full amount of your rent on
time. If you can’t pay the full amount on time,
you may want to offer to pay part of the rent.
However, the law allows your landlord to take the
partial payment and still give you an eviction
notice.
112
109 Civil Code Section 1499.
110 See Harbor Island Holdings, LLC v. Kim (2003) 107 Cal.App.4th 790 [132 Cal.Rptr.2d 406] (liquidated damages provision unenforce-
able because it bore no reasonable relationship to range of actual damages parties could have anticipated); Orozco v. Casimiro (2004)
121 Cal.App.4th Supp. 7 [17 Cal.Rptr.3d 175] (late fee invalid because landlord failed to establish that damages for late payment of
rent were extremely difficult to fix).
111 Civil Code Section 1719(a)(1). Advance disclosure of the amount of the service charge is a nearly universal practice, but is not explicitly
required by Section 1719. The landlord cannot collect both a dishonored check fee and a service charge. The landlord loses the right to
collect the service charge if the landlord seeks the treble damages that are authorized by the “bad check” law. (Civil Code
Section 1719).
112 Code of Civil Procedure Section 1161 paragraph 2.
31
If your landlord is willing to accept a partial
rent payment and give you extra time to pay the
balance, it’s important that you and the landlord
agree on the details in writing. The written
agreement should state the amount of rent that
you have paid, the date by which the rest of the
rent must be paid, the amount of any late fee
that is due, and the landlord’s agreement not
to evict you if you pay the amount due by that
date. Both you and the landlord should sign the
agreement, and you should keep a copy. Such an
agreement is legally binding.
SECURITY DEPOSIT INCREASES
Whether the landlord can increase the
amount of the security deposit after you move in
depends on what the lease or rental agreement
says, and how much of a security deposit you
have paid already.
If you have a lease, the security deposit
cannot be increased unless increases are
permitted by the terms of the lease.
In a periodic rental agreement (for example,
a month-to-month agreement), the landlord can
increase the security deposit unless this is
prohibited by the agreement. The landlord must
give you proper notice before increasing the
security deposit. (For example, 30 days’ advance
written notice normally is required in a month-to-
month rental agreement.)
However, if the amount that you have already
paid as a security deposit equals two times the
current monthly rent (for an unfurnished unit)
or three times the current monthly rent (for a
furnished unit), then your landlord can’t increase
the security deposit, no matter what the rental
agreement says. (See the discussion of the limits
on security deposits, pages 24–26.) Local rent
control ordinances may also limit increases in
security deposits.
The landlord must give you proper advance
written notice of any increase in the security
deposit. (See “Proper Service of Notices,”
page 71.)
The landlord normally cannot require that you
pay the security deposit increase in cash.
(See page 29.)
RENT INCREASES
How often can rent be raised?
If you have a lease for more than 30 days, your
rent cannot be increased during the term of the
lease, unless the lease allows rent increases.
If you have a periodic rental agreement,
your landlord can increase your rent, but the
landlord must give you proper advance notice in
writing. The written notice tells you how much the
increased rent is and when the increase goes
into effect.
California law guarantees you at least 30 days’
advance written notice of a rent increase if you
have a month-to-month (or shorter) periodic
rental agreement.
Under the law, your landlord must give you at
least 30 days’ advance notice if the rent increase
is 10 percent (or less) of the rent charged at
any time during the 12 months before the rent
increase takes effect. Your landlord must give
you at least 60 days’ advance notice if the rent
increase is greater than 10 percent.
113
In order
to calculate the percentage of the rent increase,
you need to know the lowest rent that your
landlord charged you during the preceding 12
months, and the total of the new increase and all
other increases during that period.
113 Civil Code Section 827(b). Longer notice periods apply if required, for example, by statute, regulation or contract. (Civil Code Section
827(c).) Tenants in Section 8 housing must be given at least 30 days’ written notice of a greater-than-10-percent rent increase if the
increase is caused by a change in the tenant’s income or family composition, as determined by the local housing authority’s recertifica-
tion. (Civil Code Section 827(b)(3)).
32
Examples: Assume that your current rent is
$500 per month due on the first of the month
and that your landlord wants to increase your rent
$50 to $550 beginning this June 1. To see how
much notice your landlord must give you, count
back 12 months to last June.
30 days’ notice required: Suppose that
your rent was $500 last June 1. Here’s how to
calculate the percentage of the rent increase
and the amount of notice that the landlord must
give you:
Your landlord therefore must give you at
least 30 days’ advance written notice of the
rent increase.
60 days’ notice required: Suppose that your
rent was $475 last June 1, and that your landlord
raised your rent $25 to $500 last November.
Here’s how to calculate the percentage of the
rent increase and the amount of notice that the
landlord must give you:
Your landlord therefore must give you at
least 60 days’ advance written notice of the
rent increase.
Now suppose that your rent was $500 last
June 1, but that instead of increasing your rent
$50, your landlord wants to increase your rent
$75 to $575 beginning this June 1. Here’s how
to calculate the percentage of the rent increase
and the amount of notice that the landlord must
give you:
Your landlord therefore must give you at least
60 days’ advance written notice of the rent
increase.
Normally, in the case of a periodic rental
agreement, the landlord can increase the rent
as often as the landlord likes. However, the
landlord must give proper advance written notice
of the increase, and the increase cannot be
retaliatory (see pages 79–80). Local rent control
ordinances may impose additional requirements
on the landlord.
Increases in rent for government-financed
housing usually are restricted. If you live in
government-financed housing, check with the
local public housing authority to find out whether
there are any restrictions on rent increases.
Rent increase; notice and effective date
A landlord’s notice of rent increase must be
in writing. The landlord can deliver a copy of the
notice to you personally.
114
In this case, the
rent increase takes effect in 30 or 60 days, as
just explained.
114 Civil Code Section 827(b)(1)(A).
10% of
rent last
June 1
Amount
of rent
increase
Compared
to
10%
of
rent
$500 rent
x .10
$50
is the
same
as
$50 $50
10% of
rent last
June 1
Amount
of rent
increase
Compared
to
10%
of
rent
$475 rent
x .10
$47.50
is more
than
$75 $47.50
$25
+$50
10% of
rent last
June 1
Amount
of rent
increase
Compared
to
10%
of
rent
$500
rent x .10
$50
is more
than
$75 $50
33
The landlord also can give you a notice of
rent increase by first class mail. In this case,
the landlord must mail a copy of the notice to
you, with proper postage, addressed to you
at the rental unit. The landlord must give you
an additional five days’ advance notice of the
rent increase if the landlord mails the notice.
Therefore, the landlord would have to give you at
least 35 days’ notice from the date of mailing if
the rent increase is 10 percent or less. If the rent
increase is more than 10 percent, the landlord
would have to give you at least 65 days’ notice
from the date of mailing.
115
Example of a rent increase
Most notices of rent increase state that the
increase will go into effect at the beginning of
the rental period. For example, a landlord who
wishes to increase the rent by 10 percent or less
in a month-to-month rental effective on October
1 must make sure that notice of the increase is
delivered to the tenant personally by September
1 or mailed to the tenant by August 27. However,
a landlord can make the increase effective at any
time in the month if proper advance notice
is given.
If the increase in the rent becomes effective
in the middle of the rental period, the landlord is
entitled to receive the increased rent for only the
last half of the rental period. For example:
•
Rental period: month-to-month, from the first
day of the month to the last day of the month.
•
Rent: $500 per month.
•
Rent increase: $50 (from $500 to $550) per
month (a 10 percent increase).
•
Date that the notice of rent increase is
delivered to the tenant personally: April 15
(that is, the middle of the month).
•
Earliest date that the rent increase can take
effect: May 15.
If the landlord delivers the notice on April 15,
the increase becomes effective 30 days later, on
May 15. The landlord is entitled to the increased
rent beginning on May 15. On May 1, the tenant
would pay $250 for the first half of May (that is,
15 days at the old rent of $500), plus $275 for
the last half of May (that is, 15 days at the new
rent of $550). The total rent for May that is due
on May 1 would be $525. Looking at it another
way, the landlord is entitled to only one-half of the
increase in the rent during May, since the notice
of rent increase became effective in the middle
of the month.
Of course, the landlord could deliver a notice
of rent increase on April 15 which states that
the rent increase takes effect on June 1. In that
case, the tenant would pay $500 rent on May 1,
and $550 rent on June 1.
WHEN CAN THE LANDLORD
ENTER THE RENTAL UNIT?
California law states that a landlord can enter
a rental unit only for the following reasons:
•
In an emergency.
•
When the tenant has moved out or has
abandoned the rental unit.
•
To make necessary or agreed-upon
repairs, decorations, alterations, or other
improvements.
•
To show the rental unit to prospective tenants,
purchasers, or lenders, to provide entry to
contractors or workers who are to perform
work on the unit, or to conduct an initial
inspection before the end of the tenancy
(see Initial Inspection sidebar, pages 55–58).
115 Civil Code Section 827(b)(1)(B)(2),(3).
34
•
If a court order permits the landlord to
enter.
116
•
If the tenant has a waterbed, to inspect
the installation of the waterbed when
the installation has been completed, and
periodically after that to assure that the
installation meets the law’s requirements.
117
The landlord or the landlord’s agent must
give the tenant reasonable advance notice in
writing before entering the unit, and can enter
only during normal business hours (generally,
8 a.m. to 5 p.m. on weekdays). The notice
must state the date, approximate time and
purpose of entry.
118
However, advance written
notice is not required under any of the following
circumstances:
•
To respond to an emergency.
•
The tenant has moved out or has abandoned
the rental unit.
•
The tenant is present and consents to the
entry at the time of entry.
•
The tenant and landlord have agreed that the
landlord will make repairs or supply services,
and have agreed orally that the landlord
may enter to make the repairs or supply
the services. The agreement must include
the date and approximate time of entry,
which must be within one week of the oral
agreement.
119
The landlord or agent may use any one of
the following methods to give the tenant written
notice of intent to enter the unit. The landlord or
agent may:
•
Personally deliver the notice to the tenant; or
•
Leave the notice at the rental unit with a
person of suitable age and discretion (for
example, a roommate or a teenage member of
the tenant’s household); or
•
Leave the notice on, near or under the unit’s
usual entry door in such a way that it is likely
to be found; or
•
Mail the notice to the tenant.
120
The law considers 24 hours’ advance written
notice to be reasonable in most situations.
If the notice is mailed to the tenant,
mailing at least six days before the intended
entry is presumed to be reasonable, in most
situations.
121
The tenant can consent to shorter
notice and to entry at times other than during
normal business hours.
Special rules apply if the purpose of the entry
is to show the rental to a purchaser. In that case,
the landlord or the landlord’s agent may give
the tenant notice orally, either in person or by
telephone. The law considers 24 hours’ notice
to be reasonable in most situations. However,
before oral notice can be given, the landlord or
agent must first have notified the tenant in writing
that the rental is for sale and that the landlord
or agent may contact the tenant orally to arrange
to show it. This written notice must be given to
the tenant within 120 days of the oral notice. The
oral notice must state the date, approximate time
and purpose of entry.
122
The landlord or agent
may enter only during normal business hours,
unless the tenant consents to entry at a different
116 Civil Code Section 1954(a)(4).
117 Civil Code Section 1940.5(f).
118 Civil Code Section 1954(b),(d)(1).
119 Civil Code Section 1954(d), (e).
120 Civil Code Section 1954(d)(1).
121 Civil Code Section 1954(d)(1).
122 Civil Code Section 1954(d)(2); see Moskovitz et al., California Landlord-Tenant Practice, Section 3.3 (Cal. Cont. Ed. Bar 2011).
35
time.
123
When the landlord or agent enters the
rental, he or she must leave written evidence of
entry, such as a business card.
124
The landlord cannot abuse the right of
access allowed by these rules, or use this right
of access to harass (repeatedly disturb) the
tenant.
125
Also, the law prohibits a landlord from
significantly and intentionally violating these
access rules to attempt to influence the tenant to
move from the rental unit.
126
If your landlord violates these access rules,
talk to the landlord about your concerns. If that
is not successful in stopping the landlord’s
misconduct, send the landlord a formal letter
asking the landlord to strictly observe the access
rules stated above. If the landlord continues to
violate these rules, you can talk to an attorney
or a legal aid organization, or file suit in small
claims court to recover damages that you have
suffered due to the landlord’s misconduct. If the
landlord’s violation of these rules was significant
and intentional, and the landlord’s purpose was
to influence you to move from the rental unit, you
can sue the landlord in small claims court for a
civil penalty of up to $2,000 for each violation.
127
SUBLEASES AND ASSIGNMENTS
Sometimes, a tenant with a lease may need
to move out before the lease ends, or may need
help paying the rent. In these situations, the
tenant may want to sublease the rental unit or
assign the lease to another tenant. However, the
tenant cannot sublease the rental unit or assign
the lease unless the terms of the lease allow the
tenant to do so.
Subleases
A sublease is a separate rental agreement
between the original tenant and a new tenant
who moves in temporarily (for example, for the
summer), or who moves in with the original
tenant and shares the rent. The new tenant is
called a subtenant.
With a sublease, the agreement between
the original tenant and the landlord remains in
force. The original tenant is still responsible for
paying the rent to the landlord, and functions
as a landlord to the subtenant. Any sublease
agreement between a tenant and a subtenant
should be in writing.
Most rental agreements and leases contain a
provision that prohibits (prevents) tenants from
subleasing or assigning rental units. This kind
of provision allows the landlord to control who
rents the rental unit. If your rental agreement or
lease prohibits subleases or assignments, you
must get your landlord’s permission before you
sublease or assign the rental unit.
Even if your rental agreement doesn’t contain
a provision that prohibits you from subleasing
or assigning, it’s wise to discuss your plans
with your landlord in advance. Subleases and
assignments usually don’t work out smoothly
unless everyone has agreed in advance.
You might use a sublease in two situations.
In the first situation, you may have a larger
apartment or house than you need, and may want
help paying the rent. Therefore, you want to rent
a room to someone. In the second situation, you
may want to leave the rental unit for a certain
period and return to it later. For example, you may
be a college student who leaves the campus area
for the summer and returns in the fall. You may
want to sublease to a subtenant who will agree
to use the rental unit only for that period of time.
Under a sublease agreement, the subtenant
agrees to make payments to you, not to
the landlord. The subtenant has no direct
123 Civil Code Section 1954(b).
124 Civil Code Section 1954(d)(2).
125 Civil Code Section 1954(c).
126 Civil Code Section 1940.2(a)(4).
127 Civil Code Section 1940.2(b).
36
responsibility to the landlord, only to you. The
subtenant has no greater rights than you do
as the original tenant. For example, if you have
a month-to-month rental agreement, so does
the subtenant. If your rental agreement does
not allow you to have a pet, then the subtenant
cannot have a pet.
In any sublease situation, it’s essential
that both you and the subtenant have a clear
understanding of both of your obligations. To help
avoid disputes between you and the subtenant,
this understanding should be put in the form of
a written sublease agreement that both you and
the subtenant sign.
The sublease agreement should include
things like the amount and due date of the rent,
where the subtenant is to send the rent, who
is responsible for paying the utilities (typically,
gas, electric, water, trash, and telephone), the
dates that the agreement begins and ends, a
list of any possessions that you are leaving in
the rental unit, and any conditions of care and
use of the rental unit and your possessions. It’s
also important that the sublease agreement be
consistent with the lease, so that your obligations
under the lease will be fully performed by the
subtenant, if that is what you and the subtenant
have agreed on.
Assignments
An assignment is a transfer of your rights
as a tenant to someone else. You might use
an assignment if you have a lease and need to
move permanently before the lease ends. Like a
sublease, an assignment is a contract between
the original tenant and the new tenant (not
the landlord).
However, an assignment differs from a
sublease in one important way. If the new
tenant accepts the assignment, the new tenant
is directly responsible to the landlord for the
payment of rent, for damage to the rental unit,
and so on. Nevertheless, an assignment does
not relieve the original tenant of his or her legal
obligations to the landlord. If the new tenant
doesn’t pay rent, or damages the rental unit, the
original tenant remains legally responsible to the
landlord.
128
In order for the original tenant to avoid this
responsibility, the landlord, the original tenant,
and the new tenant all must agree that the new
tenant will be solely responsible to the landlord
under the assignment. This agreement is called a
novation, and should be in writing.
Remember: Even if the landlord agrees to
a sublease or assignment, the tenant is still
responsible for the rental unit unless there is
a written agreement (a novation) that states
otherwise. For this reason, think carefully about
whom you let live in the rental unit.
dealIng wItH ProBleMs
Most landlord-tenant relationships go
smoothly. However, problems sometimes do
arise. For example, what if the rental unit’s
furnace goes out in the middle of the winter?
What happens if the landlord sells the building
or decides to convert it into condominiums?
This section discusses these and other possible
issues and problems in the landlord-tenant
relationship.
REPAIRS AND HABITABILITY
A rental unit must be fit to live in; that is, it
must be habitable. In legal terms, “habitable”
means that the rental unit is fit for occupation
by human beings and that it substantially
complies with state and local building and health
codes that materially affect tenants’ health and
safety.
129
128 Civil Code Section 822.
129 Green v. Superior Court (1974) 10 Cal.3d 616, 637-638 [111 Cal.Rptr. 704, 719]; Civil Code Sections 1941, 1941.1.
37
California law makes landlords and tenants
each responsible for certain kinds of repairs,
although landlords ultimately are legally
responsible for assuring that their rental units
are habitable.
Landlord’s responsibility for repairs
Before renting a rental unit to a tenant, a
landlord must make the unit fit to live in, or
habitable. Additionally, while the unit is being
rented, the landlord must repair problems
that make the rental unit unfit to live in, or
uninhabitable.
The landlord has this duty to repair because
of a California Supreme Court case, called
Green v. Superior Court,
130
which held that all
residential leases and rental agreements contain
an implied warranty of habitability. Under the
“implied warranty of habitability,” the landlord is
legally responsible for repairing conditions that
seriously affect the rental unit’s habitability.
131
That is, the landlord must repair substantial
defects in the rental unit and substantial
failures to comply with state and local building
and health codes.
132
However, the landlord is
not responsible under the implied warranty of
habitability for repairing damages that were
caused by the tenant or the tenant’s family,
guests, or pets.
133
Generally, the landlord also must do
maintenance work which is necessary to keep
the rental unit liveable.
134
Whether the landlord
or the tenant is responsible for making less
serious repairs is usually determined by the
rental agreement.
The law is very specific as to what kinds of
conditions make a rental uninhabitable. These
are discussed in the following pages.
Tenant’s responsibility for repairs
Tenants are required by law to take reasonable
care of their rental units, as well as common
areas such as hallways and outside areas.
Tenants must act to keep those areas clean
and undamaged. Tenants also are responsible
for repair of all damage that results from their
neglect or abuse, and for repair of damage
caused by anyone for whom they are responsible,
such as family, guests, or pets.
135
Tenants’
responsibilities for care and repair of the rental
unit are discussed in detail on pages 39–40.
Conditions that make a rental unit
legally uninhabitable
There are many kinds of defects that could
make a rental unit unlivable. The implied warranty
of habitability requires landlords to maintain their
rental units in a condition fit for the “occupation
of human beings.”
136
In addition, the rental unit
must “substantially comply” with building and
housing code standards that materially affect
tenants’ health and safety.
137
A rental unit may be considered uninhabitable
(unlivable) if it contains a lead hazard that
endangers the occupants or the public, or is
a substandard building because, for example,
a structural hazard, inadequate sanitation, or
a nuisance endangers the health, life, safety,
property, or welfare of the occupants or the
public.
138
130 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704].
131 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704]; Hinson v. Delis (1972) 26 Cal.App.3d 62 [102 Cal.Rptr. 661].
132 Green v. Superior Court (1974) 10 Cal.3d 616, 637-638 [111 Cal.Rptr. 704, 718-719].
133 Civil Code Sections 1929, 1941.2.
134 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704].
135 Civil Code Sections 1929, 1941.2.
136 Civil Code Section 1941.
137 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704].
138 Civil Code Section 1941.1 paragraph 1, Health and Safety Code Sections 17920.3, 17920.10.
38
A dwelling also may be considered
uninhabitable (unlivable) if it substantially lacks
any of the following:
139
•
Effective waterproofing and weather protection
of roof and exterior walls, including unbroken
windows and doors.
•
Plumbing facilities in good working order,
including hot and cold running water,
connected to a sewage disposal system.
•
Gas facilities in good working order.
•
Heating facilities in good working order.
•
An electric system, including lighting, wiring,
and equipment, in good working order.
•
Clean and sanitary buildings, grounds, and
appurtenances (for example, a garden or
a detached garage), free from debris, filth,
rubbish, garbage, rodents, and vermin.
•
Adequate trash receptacles in good repair.
•
Floors, stairways, and railings in good repair.
In addition to these requirements, each rental
unit must have all of the following:
•
A working toilet, wash basin, and bathtub or
shower. The toilet and bathtub or shower must
be in a room which is ventilated and allows
privacy.
•
A kitchen with a sink that cannot be made of
an absorbent material such as wood.
•
Natural lighting in every room through windows
or skylights. Windows in each room must be
able to open at least halfway for ventilation,
unless a fan provides mechanical ventilation.
•
Safe fire or emergency exits leading to a street
or hallway. Stairs, hallways, and exits must be
kept litter-free. Storage areas, garages, and
basements must be kept free of combustible
materials.
140
•
Operable dead bolt locks on the main entry
doors of rental units, and operable locking or
security devices on windows.
141
•
Working smoke detectors in all units of
multi-unit buildings, such as duplexes and
apartment complexes. Apartment complexes
also must have smoke detectors in common
stairwells.
142
•
A locking mail box for each unit. The mail box
must be consistent with the United States
Postal Service standards for apartment
housing mail boxes.
143
•
Ground fault circuit interrupters for swimming
pools and antisuction protections for wading
pools in apartment complexes and other
residential settings (but not single family
residences).
144
The implied warranty of habitability is not
violated merely because the rental unit is not
in perfect, aesthetically pleasing condition. Nor
139 Civil Code Section 1941.1.
140 Health and Safety Code Sections 17900-17995; California Landlord’s Law Book: Rights and Responsibilities, page 186 (NOLO Press
2011).
141 Civil Code Section 1941.3. See this section for additional details and exemptions. Remedies for violation of these requirements are listed
at Civil Code Section 1941.3(c). See California Practice Guide, Landlord-Tenant, Paragraphs 3:21.5-3:21.10 (Rutter Group 2011).
142 Health and Safety Code 13113.7.
143 Health and Safety Code Section 17958.3; Civil Code Section 1941.1(i).
144 Health and Safety Code Sections 116049.1, 116064.
39
is the implied warranty of habitability violated if
there are minor housing code violations, which,
standing alone, do not affect habitability.
145
While it is the landlord’s responsibility
to install and maintain the inside wiring for
one telephone jack, it is unclear whether the
landlord’s failure to do so is a breach of the
implied warranty of habitability.
146
An authoritative reference book suggests
two additional ways in which the implied
warranty of habitability may be violated. The
first is the presence of mold conditions in
the rental unit that affect the livability of the
unit or the health and safety of tenants. The
second follows from a new law that imposes
obligations on a property owner who is notified
by a local health officer that the property is
contaminated by methamphetamine. (See page
23.) This reference book suggests that a tenant
who is damaged by this kind of documented
contamination may be able to claim a breach of
the implied warranty of habitability.
147
Limitations on landlord’s duty
to keep the rental unit habitable
Even if a rental unit is unlivable because of
one of the conditions listed above, a landlord
may not be legally required to repair the condition
if the tenant has not fulfilled the tenant’s own
responsibilities.
In addition to generally requiring a tenant
to take reasonable care of the rental unit and
common areas (see page 37), the law lists
specific things that a tenant must do to keep the
rental unit liveable.
Tenants must do all of the following:
•
Keep the premises “as clean and sanitary as
the condition of the premises permits.”
•
Use and operate gas, electrical, and plumbing
fixtures properly. (Examples of improper use
include overloading electrical outlets; flushing
large, foreign objects down the toilet; and
allowing any gas, electrical, or plumbing fixture
to become filthy.)
•
Dispose of trash and garbage in a clean and
sanitary manner.
•
Not destroy, damage, or deface the premises,
or allow anyone else to do so.
•
Not remove any part of the structure, dwelling
unit, facilities, equipment, or appurtenances,
or allow anyone else to do so.
•
Use the premises as a place to live, and use
the rooms for their intended purposes. For
example, the bedroom must be used as a
bedroom, and not as a kitchen.
148
•
Notify the landlord when dead bolt locks and
window locks or security devices don’t operate
properly.
149
However, a landlord may agree in writing to
clean the rental unit and dispose of the trash.
150
If a tenant violates these requirements in
some minor way, the landlord is still responsible
for providing a habitable dwelling, and may be
prosecuted for violating housing code standards.
If the tenant fails to do one of these required
things, and the tenant’s failure has either
substantially caused an unlivable condition to
occur or has substantially interfered with the
145 Green v. Superior Court (1974) 10 Cal.3d 616, 637-638 [111 Cal.Rptr. 704, 718-719]; Hinson v. Delis (1972) 26 Cal.App.3d 62, 70
[102 Cal.Rptr. 661, 666].
146 Civil Code Section 1941.4; Public Utilities Code Section 788. See California Practice Guide, Landlord-Tenant, Paragraph 3:21.10
(Rutter Group 2011).
147 Moskovitz et al., California Landlord-Tenant Practice, Section 3.11B (Cal. Cont. Ed. Bar 2011); see Health and Safety Code Sections
25400.10-25400.46, effective January 1, 2006.
148 Civil Code Section 1941.2(a)(5).
149 Civil Code Section 1941.3(b).
150 Civil Code Section 1941.2(b).
40
landlord’s ability to repair the condition, the
landlord does not have to repair the condition.
151
However, a tenant cannot withhold rent or has
no action against the landlord for violating the
implied warranty of habitability if the tenant has
failed to meet these requirements.
152
Responsibility for other kinds of repairs
As for less serious repairs, the rental
agreement or lease may require either the tenant
or the landlord to fix a particular item. Items
covered by such an agreement might include
refrigerators, washing machines, parking places,
or swimming pools. These items are usually
considered “amenities,” and their absence does
not make a dwelling unit unfit for living.
These agreements to repair are usually
enforceable in accordance with the intent of the
parties to the rental agreement or lease.
153
Tenant’s agreement to make repairs
The landlord and the tenant may agree in
the rental agreement or lease that the tenant
will perform all repairs and maintenance in
exchange for lower rent.
154
Such an agreement
must be made in good faith: there must be a
real reduction in the rent, and the tenant must
intend and be able to make all the necessary
repairs. When negotiating the agreement, the
tenant should consider whether he or she wants
to try to negotiate a cap on the amount that he
or she can be required to spend making repairs.
Regardless of any such agreement, the landlord
is responsible for maintaining the property as
required by state and local housing codes.
155
HAVING REPAIRS MADE
If a tenant believes that his or her rental
unit needs repairs, and that the landlord is
responsible for the repairs under the implied
warranty of habitability, the tenant should
notify the landlord. Since rental units typically
are business investments for landlords, most
landlords want to keep them safe, clean,
attractive, and in good repair.
It’s best for the tenant to notify the landlord of
damage or defects by both a telephone call and
a letter. The tenant should specifically describe
the damage or defects and the required repairs
in both the phone call and the letter. The tenant
should date the letter and keep a copy to show
that notice was given and what it said. If the
tenant gives notice to the landlord by e-mail or
fax, the tenant should follow up with a letter.
(See pages 45–46.)
The tenant should send the letter to the
landlord, manager, or agent by certified mail with
return receipt requested. Sending the notice
by certified mail is not required by law, but is a
very good idea. Or, the tenant (or a friend) may
personally deliver the notice to the landlord,
manager, or agent and ask for a receipt to
show that the notice was received. The tenant
should keep a copy of the notice and the receipt,
or some other evidence that the notice was
delivered. (See “Giving the landlord notice,”
pages 45–46.)
If the landlord doesn’t make the requested
repairs, and doesn’t have a good reason for not
doing so, the tenant may have one of several
151 Civil Code Section 1941.2(a).
152 Civil Code Section 1929, 1942(c); see Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights
& Responsibilities, pages 188-189 (NOLO Press 2011).
153 Portman and Brown, California Tenants’ Rights, page 30 (NOLO Press 2010).
154 Civil Code Section 1942.1.
155 Portman and Brown, California Tenants’ Rights, page 20 (NOLO Press 2010).
41
remedies, depending on the seriousness of the
repairs. These remedies are discussed in the
rest of this section. Each of these remedies has
its own risks and requirements, so the tenant
should use them carefully.
The “repair and deduct” remedy
The “repair and deduct” remedy allows a
tenant to deduct money from the rent, if those
repairs would not cost more than one month’s
rent, to pay for repair of defects in the rental
unit.
156
This remedy covers substandard
conditions that affect the tenant’s health and
safety, and that substantially breach the implied
warranty of habitability.
157
(See discussion of the
implied warranty of habitability, pages 36–39.)
Examples might include a leak in the roof during
the rainy season, no hot running water, or a gas
leak.
As a practical matter, the repair and deduct
remedy allows a tenant to make needed repairs
of serious conditions without filing a lawsuit
against the landlord. Because this remedy
involves legal technicalities, it’s a good idea
for the tenant to talk to a lawyer, legal aid
organization, or tenants’ association before
proceeding.
The basic requirements and steps for using
the repair and deduct remedy are as follows:
1. The defects must be serious and directly
related to the tenant’s health and safety.
158
2. The repairs cannot cost more than one
month’s rent.
3. The tenant cannot use the repair and deduct
remedy more than twice in any 12-month
period.
4. The tenant or the tenant’s family, guests, or
pets must not have caused the defects that
require repair.
5. The tenant must inform the landlord, either
orally or in writing, of the repairs that are
needed. (See “Giving the landlord notice,”
pages 45–46.)
6. The tenant must give the landlord a
reasonable period of time to make the
needed repairs.
•
What is a reasonable period of time? This
depends on the defects and the types of
repairs that are needed. The law usually
considers 30 days to be reasonable,
but a shorter period may be considered
reasonable, depending on the situation.
For example, if the furnace is broken and
it’s very cold outdoors, two days may be
considered reasonable (assuming that a
qualified repair person is available within
that time period).
7. If the landlord doesn’t make the repairs within
a reasonable period of time, the tenant may
either make the repairs or hire someone to do
them. The tenant may then deduct the cost of
the repairs from the rent when it is due. The
tenant should keep all receipts for the repairs.
•
It’s a good idea, but not a legal requirement,
for the tenant to give the landlord a written
notice that explains why the tenant hasn’t
paid the full amount of the rent. The tenant
should keep a copy of this notice.
Risks: The defects may not be serious enough
to justify using the repair and deduct remedy. In
that event, the landlord can sue the tenant to
recover the money deducted from the rent, or can
file an eviction action based on the nonpayment
156 Civil Code Section 1942.
157 California Practice Guide, Landlord-Tenant, Paragraphs 3:115-3:116 (Rutter Group 2011).
158 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 189-190 (NOLO Press 2011).
42
of rent. If the tenant deducted money for repairs
not covered by the remedy, or didn’t give the
landlord proper advance notice or a reasonable
time to make repairs, the court can order the
tenant to pay the full rent even though the tenant
paid for the repairs, or can order that the eviction
proceed.
The landlord may try to evict the tenant or
raise the rent because the tenant used the repair
and deduct remedy. This kind of action is known
as a “retaliatory eviction” (see pages 79–80).
The law prohibits this type of eviction, with some
limitations.
159
The “abandonment” remedy
Instead of using the repair and deduct
remedy, a tenant can abandon (move out of) a
defective rental unit. This remedy is called the
“abandonment” remedy. A tenant might use the
abandonment remedy where the defects would
cost more than one month’s rent to repair,
160
but this is not a requirement of the remedy. The
abandonment remedy has most of the same
requirements and basic steps as the repair and
deduct remedy.
161
In order to use the abandonment remedy, the
rental unit must have substandard conditions
that affect the tenant’s health and safety, and
that substantially breach the implied warranty
of habitability.
162
(See discussion of the implied
warranty of habitability, pages 37–39.) If the
tenant uses this remedy properly, the tenant is
not responsible for paying further rent once he or
she has abandoned the rental unit.
163
The basic requirements and steps for lawfully
abandoning a rental unit are:
1. The defects must be serious and directly
related to the tenant’s health and safety.
164
2. The tenant or the tenant’s family, guests, or
pets must not have caused the defects that
require repair.
3. The tenant must inform the landlord, either
orally or in writing, of the repairs that are
needed. (See “Giving the landlord notice,”
pages 45–46.)
4. The tenant must give the landlord a
reasonable period of time to make the needed
repairs.
•
What is a reasonable period of time?
This depends on the defects and the
types of repairs that are needed. The
law usually considers 30 days to be
reasonable, but a shorter period may be
considered reasonable, depending on the
circumstances. For example, if tree roots
block the main sewer drain and none of the
toilets or drains work, a reasonable period
might be as little as one or two days.
5. If the landlord doesn’t make the repairs within
a reasonable period of time, the tenant should
notify the landlord in writing of the tenant’s
reasons for moving and then actually move
out. The tenant should return all the rental
unit’s keys to the landlord. The notice should
be mailed or delivered as explained in “Giving
the landlord notice,” pages 45--46. The tenant
should keep a copy of the notice.
•
It’s a good idea, but not a legal requirement,
for the tenant to give the landlord written
notice of the tenant’s reasons for moving
out. The tenant’s letter may discourage
the landlord from suing the tenant to
collect additional rent or other damages. A
written notice also documents the tenant’s
reasons for moving, which may be helpful
159 Civil Code Section 1942.5(a).
160 California Practice Guide, Landlord-Tenant, Paragraph 3:127 (Rutter Group 2011).
161 Civil Code Section 1942.
162 California Practice Guide, Landlord-Tenant, Paragraph 3:115-3:116, 3:126 (Rutter Group 2011).
163 Civil Code Section 1942.
164 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, page 189 (NOLO Press 2011).
43
in the event of a later lawsuit. If possible,
the tenant should take photographs or a
video of the defective conditions or have
local health or building officials inspect
the rental unit before moving. The tenant
should keep a copy of the written notice and
any inspection reports and photographs or
videos.
Risks: The defects may not affect the tenant’s
health and safety seriously enough to justify
using the remedy. The landlord may sue the
tenant to collect additional rent or damages.
The “rent withholding” remedy
A tenant may have another option for getting
repairs made—the “rent withholding” remedy.
By law, a tenant is allowed to withhold (stop
paying) some or all of the rent if the landlord
does not fix serious defects that violate
the implied warranty of habitability.
165
(See
discussion of the implied warranty of habitability,
pages 36–39.) In order for the tenant to withhold
rent, the defects or repairs that are needed must
be more serious than would justify use of the
repair and deduct and abandonment remedies.
The defects must be substantial—they must be
serious ones that threaten the tenant’s health or
safety.
166
The defects that were serious enough to justify
withholding rent in Green v. Superior Court
167
are
listed below as examples:
•
Collapse and nonrepair of the bathroom
ceiling.
•
Continued presence of rats, mice, and
cockroaches.
•
Lack of any heat in four of the apartment’s
rooms.
•
Plumbing blockages.
•
Exposed and faulty wiring.
•
An illegally installed and dangerous stove.
In the Green case, all of these defects were
present, and there also were many violations of
the local housing and building codes. In other
situations, the defects that would justify rent
withholding may be different, but the defects
would still have to be serious ones that threaten
the tenant’s health or safety.
In order to prove a violation of the implied
warranty of habitability, the tenant will need
evidence of the defects that require repair. In
the event of a court action, it is helpful to have
photographs or videos, witnesses, and copies of
letters informing the landlord of the problem.
Before the tenant withholds rent, it is a good
idea to check with a legal aid organization, lawyer,
housing clinic, or tenant program to help determine
if rent withholding is the appropriate remedy.
The basic requirements and steps for using
the rent withholding remedy are:
1. The defects or the repairs that are needed
must threaten the tenant’s health or safety.
168
•
The defects must be serious enough to
make the rental unit uninhabitable. For
example, see the defects described in the
discussion of the Green case above.
2. The tenant, or the tenant’s family, guests, or
pets must not have caused the defects that
require repair.
3. The tenant must inform the landlord either
orally or in writing of the repairs that are
needed. (See “Giving the landlord notice,”
pages 45–46.)
165 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704].
166 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 190-191 (NOLO Press 2011).
167 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704]. See Hyatt v. Tedesco (2002) 96 Cal.App.4th Supp. 62
[117 Cal.Rptr.2d 921] for additional examples of substantial defects that violated the implied warranty of habitability.
168 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, page 190 (NOLO Press 2011).
44
4. The tenant must give the landlord a
reasonable period of time to make the repairs.
•
What is a reasonable period of time? This
depends on the defects and the type of
repairs that are needed.
5. If the landlord doesn’t make the repairs within
a reasonable period of time, the tenant can
withhold some or all of the rent. The tenant
can continue to withhold the rent until the
landlord makes the repairs.
•
How much rent can the tenant withhold?
While the law does not provide a clear
test for determining how much rent is
reasonable for the tenant to withhold,
judges in rent withholding cases often
use one of the following methods. These
methods are offered as examples.
Percentage reduction in rent: The
percentage of the rental unit that is
uninhabitable is determined, and the rent
is reduced by that amount. For example,
if one of a rental unit’s four rooms is
uninhabitable, the tenant could withhold 25
percent of the rent. The tenant would have
to pay the remaining 75 percent of the rent.
Most courts use this method.
Reasonable value of rental unit: The value
of the rental unit in its defective state is
determined, and the tenant withholds that
amount. The tenant would have to pay the
difference between the rental unit’s fair
market value (usually the rent stated in the
rental agreement or lease) and the rental
unit’s value in its defective state.
169
6. The tenant should save the withheld rent
money and not spend it. The tenant should
expect to have to pay the landlord some or all
of the withheld rent.
•
If the tenant withholds rent, the tenant
should put the withheld rent money into
a special bank account (called an escrow
account). The tenant should notify the
landlord in writing that the withheld rent
money has been deposited in the escrow
account, and explain why.
Depositing the withheld rent money in an
escrow account is not required by law, but is a
very good thing to do for three reasons.
First, as explained under “Risks” on page
45, rent withholding cases often wind up in
court. The judge usually will require the tenant
to pay the landlord some reduced rent based
on the value of the rental unit with all of its
defects. Judges rarely excuse payment of all
rent. Depositing the withheld rent money in an
escrow account assures that the tenant will have
the money to pay any “reasonable rent” that the
court orders. The tenant will have to pay the rent
ordered by the court five days (or less) from the
date of the court’s judgment.
Second, putting the withheld rent money in
an escrow account proves to the court that the
tenant didn’t withhold rent just to avoid paying
rent. If there is a court hearing, the tenant should
bring rental receipts or other evidence to show
that he or she has been reliable in paying rent in
the past.
Third, most legal aid organizations and
lawyers will not represent a tenant who has
not deposited the withheld rent money in an
escrow account.
Sometimes, the tenant and the landlord will
be able to agree on the amount of rent that is
reasonable for the time when the rental unit
needed repairs. If the tenant and the landlord
can’t agree on a reasonable amount, the dispute
169 See discussion in Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, page 191
(NOLO Press 2011), Portman and Brown, California Tenants’ Rights, pages 137-138 (NOLO Press 2010), and California Practice
Guide, Landlord-Tenant, Paragraph 3:140-3:142 (Rutter Group 2011).
45
will have to be decided in court, or resolved in
an arbitration or mediation proceeding (see
page 82).
Risks: The defects may not be serious enough
to threaten the tenant’s health or safety. If the
tenant withholds rent, the landlord may give the
tenant an eviction notice (a three-day notice
to pay the rent or leave). If the tenant refuses
to pay, the landlord will probably go to court to
evict the tenant. In the court action, the tenant
will have to prove that the landlord violated the
implied warranty of habitability.
170
If the tenant wins the case, the landlord will
be ordered to make the repairs, and the tenant
will be ordered to pay a reasonable rent. The rent
ordinarily must be paid five days or less from the
date of the court’s judgment. If the tenant wins,
but doesn’t pay the amount of rent ordered when
it is due, the judge will enter a judgment for the
landlord, and the tenant probably will be evicted.
If the tenant loses, he or she will have to pay the
rent, probably will be evicted, and may be ordered
to pay the landlord’s attorney’s fees.
There is another risk of using rent withholding:
if the tenant doesn’t have a lease, the landlord
may ignore the tenant’s notice of defective
conditions and seek to remove the tenant by
giving him or her a 30-day or 60-day notice
to move. This may amount to a “retaliatory
eviction” (see pages 79–80).
171
The law
prohibits retaliatory evictions, with some
limitations.
172
Giving the landlord notice
Whenever a tenant gives the landlord notice
of the tenant’s intention to repair and deduct,
withhold rent, or abandon the rental unit, it’s best
to put the notice in writing. The notice should
be in the form of a letter, and can be typed or
handwritten. The letter should describe in detail
the problem and the repairs that are required.
The tenant should sign and date the letter and
keep a copy.
173
The tenant might be tempted to send the
notice to the landlord by e-mail or fax. The laws
on repairs specify that the tenant may give the
landlord notice orally or in writing, but do not
mention e-mail or fax. To be certain that the
notice complies with the law, the tenant should
follow up any e-mailed or faxed notice with a
letter describing the damage or defects and the
required repairs.
The letter should be sent to the landlord,
manager, or agent by certified mail (return receipt
requested). Sending the letter by certified mail
is not required by law, but is a very good idea.
Or, the tenant (or a friend) may personally deliver
the notice to the landlord, manager, or agent. The
tenant should ask for a signed and dated receipt
showing that the notice was received, or ask the
landlord to date and sign (or initial) the tenant’s
copy of the letter to show that the landlord
received the notice. Whatever the method of
delivery, it’s important that the tenant have proof
that the landlord, or the landlord’s manager or
agent, received the notice.
The copy of the letter and the receipt will be
proof that the tenant notified the landlord, and
also proof of what the notice said. Keep the copy
of the letter and the receipt in case of a dispute
with the landlord.
The landlord or agent may call the tenant to
discuss the request for repairs or to schedule
a time to make them. It’s a good idea for the
tenant to keep notes of any conversations and
phone calls about the request for repairs. During
each conversation or immediately after it, the
170 Depending on the facts, the tenant may be entitled to a rebuttable presumption that the landlord has breached the implied warranty
of habitability. (Civil Code Section 1942.3.) This presumption affects the burden of producing evidence.
171 Moskovitz, California Eviction Defense Manual, Section 16.19 (Cal. Cont. Ed. Bar 2011).
172 Civil Code Section 1942.5(a).
173 Moskovitz, California Landlord-Tenant Practice, Section 3.13 (Cal. Cont. Ed. Bar 2011). See Civil Code Section 1942(a).
46
tenant should write down the date and time of
the conversation, what both parties said, and the
date and time that the tenant made the notes.
Important: Neither the tenant nor the landlord
can tape record a telephone conversation without
the other party’s permission.
174
Tenant information
An occupant of residential property can
invite another person onto the property during
reasonable hours, or because of emergency
circumstances, to provide information about
tenants’ rights or to participate in a tenants’
association or an association that advocates
tenants’ rights. The invited person cannot be
held liable for trespass.
175
Lawsuit for damages as a remedy
The remedies of repair and deduct,
abandonment, and rent withholding allow a
tenant in a rental unit with serious habitability
defects to take action against the landlord
without filing a lawsuit. Arbitration and mediation
are other methods of resolving disputes about
the condition of a rental unit (see page 82).
A tenant has another option: filing a lawsuit
against the landlord to recover money damages
if the landlord does not repair serious defects
in the rental unit in a timely manner.
176
This
kind of lawsuit can be filed in small claims court
or Superior Court, depending on the amount
demanded in the suit.
177
The tenant can file this
kind of lawsuit without first trying another remedy,
such as the repair and deduct remedy.
If the tenant wins the lawsuit, the court may
award the tenant his or her actual damages, plus
“special damages” in an amount ranging from
$100 to $5,000.
178
“Special damages” are
costs that the tenant incurs, such as the cost of
a motel room, because the landlord did not repair
defects in the rental unit. The party who wins
the lawsuit is entitled to recover his or her costs
of bringing the suit (for example, court costs),
plus reasonable attorney’s fees as awarded by
the court.
179
The court also may order the landlord to abate
(stop or eliminate) a nuisance and to repair
any substandard condition that significantly
affects the health and safety of the tenant.
180
For example, a court could order the landlord to
repair a leaky roof, and could retain jurisdiction
over the case until the roof is fixed.
In order for a tenant to win such a lawsuit
against the landlord, all of the following
conditions must be met:
181
•
The rental unit has a serious habitability
defect. That is, the rental unit contains a
lead hazard that endangers the occupants or
the public; or substantially lacks any of the a
nuisance endangers the health, life, safety,
property, or welfare of the occupants or the
public; and
•
A housing inspector has inspected the
minimum requirements for habitability listed in
the eight categories on page 38; or has been
declared substandard because, for example,
174 Penal Code Section 632.
175 Civil Code Section 1942.6. A tenants’ association does not have a right under the California Constitution’s free speech clause to
distribute its newsletter in a privately owned apartment complex. (Golden Gateway Center v. Golden Gateway Tenants Assoc. (2001)
26 Cal. 4th 1013 [111 Cal. Rptr. 2d 336]).
176 Civil Code Section 1942.4.
177 One reference book cautions against a tenant litigating implied warranty of habitability issues in small claims court because collateral
estoppel precludes an issue decided there from being relitigated. Moskovitz et al., California Landlord-Tenant Practice, Sections 5.16,
5.39 (Cal. Cont. Ed. Bar 2006), citing Pitzen v. Superior Court (2004) 120 Cal. App. 4th 1374 [16 Cal. Rptr. 3d 628].
178 Civil Code Section 1942.4(b)(1).
179 Civil Code Section 1942.4(b)(2), Code of Civil Procedure Section 1174.2.
180 Civil Code Section 1942.4(a),(c).
181 Civil Code Section 1942.4(a). See Health & Safety Code Sections 17920.3, 17920.10.
47
a structural hazard, inadequate sanitation,
or premises and has given the landlord or
the landlord’s agent written notice of the
landlord’s obligation to repair the substandard
conditions or abate the nuisance; and
•
The nuisance or substandard conditions
continue to exist 35 days after the housing
inspector mailed the notice to the landlord or
agent, and the landlord does not have good
cause for failing to make the repairs; and
•
The nuisance or substandard conditions were
not caused by the tenant or the tenant’s
family, guests, or pets; and
•
The landlord collects or demands rent, issues
a notice of rent increase, or issues a three-day
notice to pay rent or quit (see pages 68–69)
after all of the above conditions have
been met.
To prepare for filing this kind of lawsuit, the
tenant should take all of these basic steps:
•
The tenant should notify the landlord in writing
about the conditions that require repair. (See
“Giving the landlord notice,” pages 45–46.)
The rental unit must have serious habitability
defects that were not caused by the tenant’s
family, guests, or pets.
•
The notice should specifically describe the
defects and the repairs that are required.
•
The notice should give the landlord a
reasonable period of time to make the repairs.
•
If the landlord doesn’t make the repairs within
a reasonable time, the tenant should contact
the local city or county building department,
health department, or local housing agency
and request an inspection.
•
The housing inspector must inspect the
rental unit.
•
The housing inspector must give the landlord
or the landlord’s agent written notice of the
repairs that are required.
•
The substandard conditions must continue
to exist 35 days after the housing inspector
mailed the notice to the landlord or landlord’s
agent. The landlord then must collect or
demand rent, raise the rent, or serve a three-
day notice to pay rent or quit.
•
The tenant should gather evidence of
the substandard conditions (for example,
photographs or videos, statements of
witnesses, inspection reports) so that the
tenant can prove his or her case in court.
•
The tenant should discuss the case with a
lawyer, legal aid organization, tenant program,
or housing clinic in order to understand what
the lawsuit is likely to accomplish, and also
the risks involved.
182
Resolving complaints out of court
Before filing suit, the tenant should try to
resolve the dispute out of court, either through
personal negotiation or a dispute resolution
program that offers mediation or arbitration
of landlord-tenant disputes. If the tenant and
the landlord agree, a neutral person can work
with both of them to reach a solution. Informal
dispute resolution can be inexpensive and fast.
(See “Arbitration and Mediation,” pages 82–83.)
Please see page 45 regarding legal requirements
for notices.
LANDLORD’S SALE OF THE RENTAL UNIT
If your landlord voluntarily sells the rental unit
that you live in, your legal rights as a tenant are
not changed. Tenants who have a lease have
the right to remain through the end of the lease
under the same terms and conditions. The new
landlord can end a periodic tenancy (for example,
182 Civil Code Section 1942.4, which gives the tenant the right to sue the landlord as described in this section, also can be used defensively.
If the landlord brings an unlawful detainer action against the tenant based on nonpayment of rent, and the court finds that the land-
lord has violated all of the five conditions listed in the bullets on this page, the landlord is liable for the tenant’s attorneys fees and costs
of suit, as determined by the court. (Code of Civil Procedure Section 1174.21).
48
a month-to-month tenancy), but only after giving
the tenant the required advance notice. (See
“Landlord’s notice to end a periodic tenancy,”
pages 50–52.)
The sale of the building doesn’t change the
rights of the tenants to have their security
deposits refunded when they move. Pages
63–65 discuss the landlord’s responsibility for
the tenants’ security deposits after the rental
unit has been sold.
When property is sold in foreclosure
State law provides that a tenant in possession
of a rental housing unit at the time a property is
sold in foreclosure shall be given 60 days’ written
notice to quit before the tenant may be removed
from the property.
183
However, if your lease was
signed before the deed of trust or mortgage was
recorded, your lease will not be set aside by the
foreclosure.
184
Federal law now requires that you be given
90 days’ written notice to quit (leave the
property). Under the 2009 “Protecting Tenants at
Foreclosure Act,” a buyer of foreclosed property
must honor your lease until the end of the lease
term, unless the buyer will be moving in and
using the property as the buyer’s home.
184.1
In
that case, you are entitled to 90 days’ notice to
quit.
184.2
This is also true if you are a month-to-
month tenant. The Act creates similar protections
for tenants with Section 8 vouchers. This rule
does not apply to rental agreements that were
not the result of arm’s length transactions or
where the rent is much less than fair market rent
for that property.
184.3
California recognizes that tenants of units sold
in foreclosure now have a right to this 90-day
notice under federal law. Specifically, any notice
to quit served within one year after a foreclosure
sale must also inform renters that they may stay
in the unit for at least 90-days.
184.4
CONDOMINIUM CONVERSIONS
A landlord who wishes to convert rental
property into condominiums must obtain approval
from the local city or county planning agency.
The landlord also must receive final approval in
the form of a public report issued by the State
Department of Real Estate. Affected tenants
must receive notices at various stages of the
application and approval process.
185
These
notices are designed to allow affected tenants
and the public to have a voice in the approval
process.
186
Tenants can check with local elected
officials or housing agencies about the approval
process and opportunities for public input.
Perhaps most important, affected tenants
must be given written notice of the conversion
to condominiums at least 180 days before their
tenancies end due to the conversion.
187
Affected
tenants also must be given a first option to buy
the rental unit on the same terms that are being
offered to the general public (or better terms).
The tenants must be able to exercise this right
for at least 90 days following issuance of the
Department of Real Estate’s public report.
188
183 Code of Civil Procedure 1161b(a) This notice requirement shall remain in effect only until Januaury 1, 2013, and as of that date will be
repealed unless a later enacted statute that is enacted before January 1, 2013, deletes or extends that date.
184 Portman and Brown, California Tenants Rights, pages 4-5 (NOLO Press 2010).
184.1 Public Law 111-22, 2009 S896, Title VII, Section 702.
184.2 Public Law 111-22, 2009 S896, Title VII, Section 702.
184.3 Public Law 111-203, 2009-2010 H.R. 4173, Section 1484.
184.4 California Code of Civil Procedure Section 1161c.
185 Government Code Section 66427.1(a),(b).
186 Government Code Sections 66451.3, 65090, 65091.
187 Government Code Section 66427.1(c).
188 Government Code Section 66427.1, 66427.1(a)2F. See Business and Professions Code Sections 11018, 11018.2, California Practice
Guide, Landlord-Tenant, Paragraph 5:306 and following (Rutter Group 2011).
49
DEMOLITION OF DWELLING
The owner of a dwelling must give written
notice to current tenants before applying for a
permit to demolish the dwelling. The owner also
must give this notice to tenants who have signed
rental agreements but who have not yet moved
in. (See page 24.) The notice must include
the earliest approximate dates that the owner
expects the demolition to occur and the tenancy
to end.
189
INFLUENCING THE TENANT TO MOVE
California law protects a tenant from
retaliation by the landlord because the tenant
has lawfully exercised a tenant right (see pages
79–-80). California law also makes it unlawful
for a landlord to attempt to influence a tenant to
move by doing any of the following:
•
Engaging in conduct that constitutes theft or
extortion.
•
Using threats, force, or menacing conduct that
interferes with the tenant’s quiet enjoyment
of the rental unit. (The conduct must be of a
nature that would create the fear of harm in a
reasonable person.)
•
Committing a significant and intentional
violation of the rules limiting the landlord’s
right to enter the rental unit (see pages
33–35).
190
A landlord does not violate the law by giving
a tenant a warning notice, in good faith, that the
tenant’s or a guest’s conduct may violate the
lease, rental agreement, rules or laws. The notice
may be oral or in writing. The law also allows
a landlord to give a tenant an oral or written
explanation of the lease, rental agreement, rules
or laws in the normal course of business.
191
If a landlord engages in unlawful behavior
as described above, the tenant may sue the
landlord in small claims court or Superior Court.
If the tenant prevails, the court may award him
or her a civil penalty of up to $2,000 for each
violation.
192
Keep in mind, however, that a
lawsuit is not always a good solution. If you are
faced with actions such as described above, try
to assess the situation realistically. You may want
to discuss the situation with a trusted friend,
a tenant advisor, or a lawyer who represents
tenants. If you are convinced that you cannot
work things out with the landlord, then consider
your legal remedies.
MovIng out
GIVING AND RECEIVING PROPER NOTICE
Tenant’s notice to end a periodic tenancy
To end a periodic rental agreement (for
example, a month-to-month agreement), you must
give your landlord proper written notice before
you move.
You must give the landlord the same amount
of notice as there are days between rent
payments.
193
This means that if you pay rent
monthly, you must give the landlord written notice
at least 30 days before you move. If you pay rent
every week, you must give the landlord written
notice at least seven days before you move.
194
This is true even if the landlord has given you a
60-day notice to end the rental agreement and
you want to leave sooner (see discussion, page
48).
195
If your rental agreement specifies a different
amount of notice (for example 10 days), you must
189 Civil Code Section 1940.6.
190 Civil Code Section 1940.2(a).
191 Civil Code Section 1940.2(c).
192 Civil Code Section 1940.2(b).
193 Civil Code Section 1946.
194 Civil Code Section 1946.
195 Civil Code Section 1946.1(e).
50
give the landlord written notice as required by the
agreement.
196
To avoid later disagreements, date the notice,
state the date that you intend to move, and
make a copy of the notice for yourself. It’s best
to deliver the notice to the landlord or property
manager in person, or mail it by certified mail
with return receipt requested. (You can also
serve the notice by one of the methods described
under “Proper Service of Notices,” page 71.)
197
You can give the landlord notice any time
during the rental period, but you must pay full
rent during the period covered by the notice. For
example, say you have a month-to-month rental
agreement, and pay rent on the first day of each
month. You could give notice any time during
the month (for example, on the tenth). Then, you
could leave 30 days later (on the tenth of the
following month, or earlier if you chose to). But
you would have to pay rent for the first 10 days
of the next month whether you stay for those
10 days or move earlier. (Exception: You would
not have to pay rent for the entire 10 days if you
left earlier, and the landlord rented the unit to
another tenant during the 10 days, and the new
tenant paid rent for all or part of the 10 days.)
198
The rental agreement or lease must state
the name and address of the person or entity to
whom you must make rent payments (see page
19). If this address does not accept personal
deliveries, you can mail your notice to the owner
at the name and address stated in the lease
or rental agreement. If you can show proof that
you mailed the notice to the stated name and
address (for example, a receipt for certified mail),
the law assumes that the notice is receivable by
the owner on the date of postmark.
199
Tenant’s notice to end tenancy due to
domestic violence, sexual assault, or stalking
You may notify your landlord that you or
another household member has been a victim of
domestic violence, sexual assault, or stalking,
and that you intend to move out. However, you
would still be responsible for payment of the
rent for 30 days following your notice. You are
required to attach to your notice to the landlord
a copy of the restraining order, emergency
protective order, or police report, within 180 days
of the day such order or report was issued or
made.
200
A landlord cannot end or refuse to renew
your tenancy based upon the fact that you or
a member of your household is a victim of a
documented act of domestic violence, sexual
assault, or stalking.
200.1
If you request that the
landlord change your locks and the landlord fails
to do so within 24 hours of your request, you may
then change the locks yourself. If the restrained
person is also a tenant of the unit, that person
is still responsible for upholding their end of the
lease. These rules apply to leases signed after
January 1, 2011.
200.2
Landlord’s notice to end a periodic tenancy
A landlord can end a periodic tenancy (for
example, a month-to-month tenancy) by giving
the tenant proper advance written notice. Your
landlord must give you 60 days advance written
notice that the tenancy will end if you and every
other tenant or resident have lived in the rental
unit for a year or more.
201
However, the landlord
must give you 30 days advance written notice in
either of the following situations:
196 Civil Code Section 1946.
197 Civil Code Section 1946.
198 See Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 357-358 (NOLO
Press 2011).
199 Civil Code Section 1962(f).
200 Civil Code Section 1946.7.
200.1 Code of Civil Procedure Section 1161.3.
200.2 Civil Code Sections 1941.5, 1941.6.
201 Civil Code Section 1946.1(b).
51
•
Any tenant or resident has lived in the rental
unit less than one year;
202
or
•
The landlord has contracted to sell the rental
unit to another person who intends to occupy
it for at least a year after the tenancy ends.
In addition, all of the following must be true
in order for the selling landlord to give you a
30-day notice —
- The landlord must have opened escrow
with a licensed escrow agent or real
estate broker, and
- The landlord must have given you the 30-
day notice no later than 120 days after
opening the escrow, and
- The landlord must not previously have
given you a 30-day or 60-day notice, and
- The rental unit must be one that can
be sold separately from any other
dwelling unit. (For example, a house or
a condominium can be sold separately
from another dwelling unit.)
203
The landlord usually isn’t required to state
a reason for ending the tenancy in the 30-day
or 60-day notice (see 30-Day or 60-Day Notice,
page 68). The landlord can serve the 30-day or
60-day notice by certified mail or by one of the
methods described under “Proper Service of
Notices,” page 71.
204
Note: In the circumstances described on
pages 68–69, a landlord can give you just three
days advance written notice.
If you receive a 30-day or 60-day notice, you
must leave the rental unit by the end of the 30th
or 60th day after the date on which the landlord
served the notice (see page 68). For example, if
the landlord served a 60-day notice on July 16,
you would begin counting the 60 days on July 17,
and the 60-day period would end on September
14. If September 14 falls on a weekday, you
would have to leave on or before that date.
However, if the end of the 60-day period falls
on a Saturday, you would not have to leave until
the following Monday, because Saturdays and
Sundays are legal holidays. Other legal holidays
also extend the notice period.
205
If you don’t move by the end of the notice
period, the landlord can file an unlawful detainer
lawsuit to evict you (see page 72).
What if the landlord has given you a 60-day
notice, but you want to leave sooner? You can
give the landlord the same amount of notice
as there are days between rent payments (for
example, 30 days’ notice if you pay rent monthly)
provided that —
•
The amount of your notice is at least as
long as the number of days between rent
payments, and
•
Your proposed termination date is before the
landlord’s termination date.
206
What if the landlord has given you a 30-day
or 60-day notice, but you want to continue to
rent the property, or you believe that you haven’t
done anything to cause the landlord to give you
a notice of termination? In this kind of situation,
you can try to convince the landlord to withdraw
the notice. Try to find out why the landlord gave
you the notice. If it’s something within your
control (for example, consistently late rent, or
playing music too loud), assure the landlord that
in the future, you will pay on time or keep the
volume turned down. Then, keep your promise.
If the landlord won’t withdraw the notice, you will
202 Civil Code Section 1946. Civil Code Section 1946.1(c).
203 Civil Code Section 1946.1(d).
204 Civil Code Section 1946.1(f).
205 Code of Civil Procedure Section 12a. See California Practice Guide, Landlord-Tenant, Paragraph 7:220 to 7:220.6 (Rutter Group 2011)
on whether service of the 30-day notice by mail extends the time for the tenant to respond.
206 Civil Code Section 1946.1(e).
52
have to move out at the end of the 30-day or 60-
day period, or be prepared for the landlord to file
an unlawful detainer lawsuit to evict you.
Special rules may apply in cities with rent
control. For example, in some communities
with rent control ordinances, a periodic tenancy
cannot be ended by the landlord without a good
faith “just cause” or “good cause” reason
to evict. In these communities, the landlord
must state the reason for the termination, and
the reason may be reviewed by local housing
authorities.
Suppose that you are a tenant who
participates in the Section 8 housing voucher
program. While the lease is in effect, the landlord
must have good cause to terminate (end) the
tenancy. Examples of good cause include serious
or repeated violations of the lease, or criminal
activity that threatens the health or safety
of other residents.
207
However, incidents of
domestic violence may not be used as a violation
by the victim or threatened victim as good
cause for the landlord to terminate the tenancy,
occupancy rights or assistance of the victim.
208
The landlord must give the tenant a three-day
or 30-day or 60-day notice of termination under
California law (see pages 67–69), and both the
landlord and the tenant must give the public
housing agency a copy of the notice.
209
What
if the landlord simply decides not to renew the
lease, or decides to terminate the HAP (housing
assistance payment) contract? In this case, the
landlord must give the tenant 90 days’ advance
written notice of the termination date.
210
If the
tenant doesn’t move out by the end of the 90
days, the landlord must follow California law to
evict the tenant.
211
If you live in government-assisted housing or
in an area with rent control, check with your local
housing officials to see if any special rules apply
in your situation.
ADVANCE PAYMENT OF LAST MONTH’S RENT
Many landlords require tenants to pay “last
month’s rent” at the beginning of the tenancy as
part of the security deposit or at the time the
security deposit is paid. Whether the tenant can
use this amount at the end of the tenancy to pay
the last month’s rent depends on the language
used in the rental agreement or lease.
212
Suppose that at the beginning of the tenancy,
you gave the landlord a payment for the last
month’s rent and for the security deposit, and
that the lease or rental agreement labels part
of this upfront payment “last month’s rent.” In
this situation, you have paid the rent for your last
month in the rental unit. However, sometimes
landlords raise the rent before the last month’s
rent becomes due. In this situation, can the
landlord require you to pay the amount of the
increase for the last month?
The law does not provide a clear answer to
this question. If your lease or rental agreement
labels part of your upfront payment “last month’s
rent,” then you have a strong argument that you
paid the last month’s rent when you moved in. In
this situation, the landlord should not be able to
require you to pay the amount of the increase for
the last month.
213
However, if your lease or rental
agreement labels part of your upfront payment
207 California Practice Guide, Landlord-Tenant, Paragraphs 12:251 and following (Rutter Group 2011). See this chapter for an indepth
discussion of the Section 8 housing program.
208 California Practice Guide, Landlord-Tenant, Paragraph 12:250 and 12:273.1 (Rutter Group 2011) citing United States Code Sections
1437f(d)(1)(5), 1437f(c)(9)(B); 24 CFR sections 5.2005(a), 982, 452(b)(1).
209 Moskovitz, California Eviction Defense Manual, Section 18.22 (Cal. Cont. Ed. Bar 2011), citing Gallman v. Pierce (ND Cal. 1986)
639 F. Supp. 472, 485 (landlord must follow California law when terminating a tenant’s Section 8 lease).
210 Civil Code Section 1954.535; Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111 [29 Cal.Rptr.3d 262].
211 California Practice Guide, Landlord-Tenant, Paragraph 12:301(Rutter Group 2011).
212 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 96-97 (NOLO Press 2011).
213 Portman and Brown, California Tenants’ Rights, page 243 (NOLO Press 2010); see Brown, Warner and Portman, The California Land-
lord’s Law Book, Vol. I: Rights & Responsibilities, pages 96-97 (NOLO Press 2011).
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