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14Jan

Occupants Not Named In Eviction Lawsuit Or Writ Of Possession

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OCCUPANTS NOT NAMED IN EVICTION LAWSUIT

People who are not named as tenants in the rental agreement or lease sometimes move into a rental unit before the landlord files the unlawful detainer (eviction) lawsuit. The landlord may not know that these people (called “occupants”) are living in the rental unit, and therefore may not name them as defendants in the summons and complaint. As a result, these occupants are not named in the writ of possession if the landlord wins the unlawful detainer action. A sheriff enforcing the writ of possession cannot lawfully evict an occupant whose name does not appear on the writ of possession and who claims to have lived in the unit since before the unlawful detainer lawsuit was filed. (See “Writ of possession.”)

The landlord can take steps to avoid this result. The landlord can instruct the process server who serves the summons and complaint on the named defendants to ask whether there are other occupants living in the unit who have not been named as defendants. If there are, the person serving the summons and complaint can serve each of the so-called “unnamed occupants” with a blank Prejudgment Claim of Right to Possession form and an extra copy of the summons and complaint 349

These occupants then have 10 days from the date they are served to file a Prejudgment Claim of Right to Possession form with the Clerk of Court, and to pay the clerk the required filing fee (or file an “Application for Waiver of Court Fees and Costs” if they are unable to pay the filing fee (see The Eviction Process)). Any unnamed occupant who does not file a Prejudgment Claim of Right to Possession form with the Clerk of Court (along with the filing fee or a request for waiver of the fee) can then be evicted.

An unnamed occupant who files a Prejudgment Claim of Right to Possession form automatically becomes a defendant in the unlawful detainer lawsuit, and must file an answer to the complaint within five days after filing the form. The court then rules on the occupant’s defense to the eviction along with the defenses of the other defendants.350 If the landlord wins, the occupant cannot delay the eviction, whether or not the occupant is named in the writ of possession issued by the court.351

Occupants not named in writ of possession

The landlord sometimes does not serve a Prejudgment Claim of Right to Possession form on the unnamed occupants when the unlawful detainer complaint is served. When the sheriff arrives to enforce the writ of possession (that is, to evict the tenants [see “Writ of possession,”]), an occupant whose name does not appear on the writ of possession, and who claims a right of possession, may fill out a Claim of Right to Possession form and give it to the sheriff. The sheriff must then stop the eviction of that occupant, and must give the occupant a copy of the completed form or a receipt for it.352

Within two business days after completing the form and giving it to the sheriff, the occupant must deliver to the Clerk of Court the court’s filing fee (or file an Application for Waiver of Court Fees and Costs if the occupant is unable to pay the filing fee (see The Eviction Process)). The occupant also should deliver to the court an amount equal to 15 days’ rent for the rental unit (the writ of possession must state the daily rental value of the rental unit).

Five to 15 days after the occupant has paid the filing fee (or has filed a request for waiver of the fee), and has deposited an amount equal to 15 days’ rent, the court will hold a hearing. If the occupant does not deposit the 15 days’ rent, the court will hold the hearing within five days.

At the hearing, the court will decide whether or not the occupant has a valid claim to possession. If the court decides that the occupant’s claim to possession is valid, the amount of rent deposited will be returned to the occupant. The court will then order further proceedings, as appropriate to the case (for example, the occupant may be given five days to answer the landlord’s complaint).

If the court finds that the occupant’s claim to possession is not valid, an amount equal to the daily rent for each day the eviction was delayed will be subtracted from the rent that is returned to the occupant, and the sheriff or marshal will continue with the eviction.

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14Jan

The Eviction Process

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(Unlawful Detainer Lawsuit)

Overview of the eviction process

If the tenant doesn’t voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant. In order to evict the tenant, the landlord must file an unlawful detainer lawsuit in superior court.

In an eviction lawsuit, the landlord is called the “plaintiff” and the tenant is called the “defendant.”

Recent laws designed to abate drug dealing 295 and unlawful use, manufacture, or possession of weapons and ammunition,296 permit a city attorney or prosecutor in selected jurisdictions 297 to file an unlawful detainer action against a tenant based on an arrest report (or other action or report by law enforcement or regulatory agencies) if the landlord fails to evict the tenant after 30 days notice from the city. The tenant must be notified of the nature of the action and possible defenses.

An unlawful detainer lawsuit is a “summary” court procedure. This means that the court action moves forward very quickly, and that the time given the tenant to respond during the lawsuit is very short. For example, in most cases, the tenant has only five days to file a written response to the lawsuit after being served with a copy of the landlord’s summons and complaint.298 Normally, a judge will hear and decide the case within 20 days after the tenant or the landlord files a request to set the case for trial.299

The court-administered eviction process assures the tenant of the right to a court hearing if the tenant believes that the landlord has no right to evict the tenant. The landlord must use this court process to evict the tenant; the landlord cannot use self-help measures to force the tenant to move. For example, the landlord cannot physically remove or lock out the tenant, cut off utilities such as water or electricity, remove outside windows or doors, or seize (take) the tenant’s belongings in order to carry out the eviction. The landlord must use the court procedures.

If the landlord uses unlawful methods to evict a tenant, the landlord may be subject to liability for the tenant’s damages, as well as penalties of up to $100 per day for the time that the landlord used the unlawful methods.300

In an unlawful detainer lawsuit, the court holds a hearing at which the parties can present their evidence and explain their case. If the court finds that the tenant has a good defense, the court will not evict the tenant. If the court decides in favor of the tenant, the tenant will not have to move, and the landlord may be ordered to pay court costs (for example, the tenant’s filing fees). The landlord also may have to pay the tenant’s attorney’s fees, if the rental agreement contains an attorney’s fee clause and if the tenant was represented by an attorney.301

If the court decides in favor of the landlord, the court will issue a writ of possession.302 The writ of possession orders the sheriff to remove the tenant from the rental unit, but gives the tenant five days from the date that the writ is served to leave voluntarily. If the tenant does not leave by the end of the fifth day, the writ of possession authorizes the sheriff to physically remove and lock the tenant out, and seize (take) the tenant’s belongings that have been left in the rental unit. The landlord is not entitled to possession of the rental unit until after the sheriff has removed the tenant.

The court also may award the landlord any unpaid rent if the eviction is based on the tenant’s failure to pay rent. The court also may award the landlord damages, court costs, and attorney’s fees (if the rental agreement or lease contains an attorney’s fee clause and if the landlord was represented by an attorney). If the court finds that the tenant acted maliciously in not giving up the rental unit, the court also may award the landlord up to $600 as a penalty.303 The judgment against the tenant will be reported on the tenant’s credit report for seven years.304

How to respond to an unlawful detainer lawsuit

If you are served with an unlawful detainer complaint, you should get legal advice or assistance immediately. Tenant organizations, tenant-landlord programs, housing clinics, legal aid organizations, or private attorneys can provide you with advice, and assistance if you need it. (See “Getting Help From a Third Party “)

You usually have only five days to respond in writing to the landlord’s complaint. You must respond during this time by filing the correct legal document with the Clerk of Court in which the lawsuit was filed. If the fifth day falls on a weekend or holiday, you can file your written response on the following Monday or nonholiday.305 Typically, a tenant responds to a landlord’s complaint by filing a written “answer.” (You can get a copy of a form to use for filing an answer from the Clerk of Court’s office or online at www.courts.ca.gov/documents/ud105.pdf.

You may have a legal defense to the landlord’s complaint. If so, you must state the defense in a written answer and file your written answer with the Clerk of Court by the end of the fifth day. Otherwise, you will lose any defenses that you may have. Some typical defenses that a tenant might have are listed here as examples:

  • The landlord’s three-day notice requested more rent than was actually due.
  • The rental unit violated the implied warranty of habitability.
  • The landlord filed the eviction action in retaliation for the tenant exercising a tenant right or because the tenant complained to the building inspector about the condition of the rental unit.

Depending on the facts of your case, there are other legal responses to the landlord’s complaint that you might file instead of an answer. For example, if you believe that your landlord did not properly serve the summons and the complaint, you might file a Motion to Quash Service of Summons. If you believe that the complaint has some technical defect or does not properly allege the landlord’s right to evict you, you might file a Demurrer. It is important that you obtain advice from a lawyer before you attempt to use these procedures.

If you don’t file a written response to the landlord’s complaint by the end of the fifth day, the court will enter a default judgment in favor of the landlord. A default judgment allows the landlord to obtain a writ of possession (see Writ of Possession), and may also award the landlord unpaid rent, damages and court costs.

The Clerk of Court will ask you to pay a filing fee when you file your written response. The filing fee typically is about $180. However, if you can’t afford to pay the filing fee, you can request that the Clerk allow you to file your response without paying the fee (that is, you can request a waiver of the fee). An application form for a fee waiver, called an “Application for Waiver of Court Fees and Costs,”can be obtained from the Clerk of Court or online at http://www.courts.ca.gov/documents/fw001.pdf.306

After you have filed your written answer to the landlord’s complaint, the Clerk of Court will mail to both you and the landlord a notice of the time and place of the trial. If you don’t appear in court, a default judgment will be entered against you.

Special Rules for Tenants in the Military: A servicemember may be entitled to a stay (delay) of an eviction action for 90 days. This rule applies to the servicemember and his or her dependents (such as a spouse or child) in a residential rental unit with rent of $2,400 per month or less, as adjusted by the housing price inflation adjustment. The servicemember’s ability to pay rent must be materially affected by military service. The judge may order the stay on his or her own motion or upon request by the servicemember or a representative. The judge can adjust the length and terms of the delay as equity (fairness) requires.307 Landlords that violate the court-ordered eviction process in regards to a servicemember may face a fine and/or imprisonment for up to one year.307.1

Eviction of “unnamed occupants”

Sometimes, people who are not parties to the rental agreement or lease move into the rental unit with the tenant or after the tenant leaves, but before the unlawful detainer lawsuit is filed. When a landlord thinks that these “occupants” might claim a legal right to possess the rental unit, the landlord may seek to include them as defendants in the eviction action, even if the landlord doesn’t know who they are. In this case, the landlord will tell the process server to serve the occupants with a Prejudgment Claim of Right to Possession form at the same time that the eviction summons and complaint are served on the tenants who are named defendants.308 See additional discussion of “unnamed occupants” and Claim of Right to Possession forms.

Discovery in Unlawful Detainer Cases

Each of the four available discovery procedures requires a minimum of five days’ notice to the landlord before the landlord is required to respond.309 Available discovery procedures in unlawful detainer actions include oral depositions,310 written interrogatories,311 inspection, copying, testing, or sampling of the landlord’s records, things, electronically stored information and places,312 and requests for admissions.313 Under these rules, the landlord must comply with your request for discovery within five days.314 All discovery must be completed on or before the fifth day before the date set for trial.315

  • If you intend to defend your case, and intend to use the discovery process as a tool, you must follow strict timelines applicable to evictions in California.
  • The discovery process works in five-day increments. Once you have been served, you may begin your discovery by mailing any discovery requests. You must allow five days for your request to be received by the landlord. The landlord then has five days to respond to your request. All of the discovery must be completed at least five days before the date of the trial.316

 

Before the court hearing

Before appearing in court, you must carefully prepare your case, just as an attorney would. Among other things, you should:

  • Be mindful that when you have been served with the summons and complaint, you have five days in which to file an answer. You should carefully read the summons, which will have very specific information on how to answer the complaint and the strict timelines. (Please refer to “How to respond to an unlawful detainer lawsuit“.).
  • Talk with a housing clinic, tenant organization, attorney, or legal aid organization. This will help you understand the legal issues in your case and the evidence that you will need.
  • Request discovery of the evidence that may be helpful to your case or to preparing a defense. (See “Discovery in Unlawful Detainer Cases“.)
  • Decide how you will present the facts that support your side of the case – whether by witnesses, letters, other documents, photographs or video, or other evidence.
  • Have at least five copies of all documents that you intend to use as evidence—an original for the judge, a copy for the court clerk, a copy for the opposing party, a copy for yourself, and copies for your witnesses.
  • Ask witnesses who will help your case to testify at the trial. You can subpoena a witness who will not testify voluntarily. A subpoena is an order from the court for a witness to appear. The subpoena must be served on (handed to) the witness, and can be served by anyone but you who is over the age of 18. You can obtain a subpoena from the Clerk of Court. You must pay witness fees at the time the subpoena is served on the witness, if the witness requests them.

The parties to an unlawful detainer lawsuit have the right to a jury trial, and either party can request one.317 After you have filed your answer to the landlord’s complaint, usually the landlord will file a document called a Memorandum to Set Case for Trial (officially called a “Request/Counter-Request to Set Case for Trial” form (Judicial Council Form UD-150).)318 This document will indicate whether the plaintiff (landlord) has requested a jury trial. If not, and if you are not represented by a lawyer, tenant advisers usually recommend that you not request a jury trial.

There are several good reasons for this recommendation: first, presenting a case to a jury is more complex than presenting a case to a judge, and a nonlawyer representing himself or herself may find it very difficult; second, the party requesting a jury trial will be responsible for depositing the initial cost of jury fees with the court; and third, the losing party will have to pay all of the jury costs.319

After the court’s decision

If the court decides in favor of the tenant, the tenant will not have to move, and the landlord may be ordered to pay the tenant’s court costs (for example, filing fees) and the tenant’s attorney’s fees. However, the tenant will have to pay any rent that the court orders.

If the landlord wins, the tenant will have to move. In addition, the court may order the tenant to pay the landlord’s court costs and attorney’s fees, and any proven damages, such as overdue rent or the cost of repairs if the tenant damaged the premises.

It is possible, but rare, for a losing tenant to convince the court to allow the tenant to remain in the rental unit. This is called relief from forfeiture of the tenancy. The tenant must convince the court of two things in order to obtain relief from forfeiture: that the eviction would cause the tenant severe hardship, and that the tenant is able to pay all of the rent that is due or that the tenant will fully comply with the lease or rental agreement.320

A tenant can obtain relief from forfeiture of a lease or a rental agreement, even if the tenancy has terminated (ended), so long as possession of the unit has not been turned over to the landlord. A tenant seeking relief from forfeiture (or the tenant’s attorney) must apply for relief at any time prior to restoration of the premises to the landlord, but such a petition should be made as soon as possible after the court issues its judgment in the unlawful detainer lawsuit.321

A tenant who loses an unlawful detainer lawsuit may appeal the judgment if the tenant believes that the judge mistakenly decided a legal issue in the case. However, the tenant will have to move before the appeal is heard, unless the tenant obtains a stay of enforcement of the judgment or relief from forfeiture (described immediately above). The court will not grant the tenant’s request for a stay of enforcement unless the court finds that the tenant or the tenant’s family will suffer extreme hardship, and that the landlord will not suffer irreparable harm. If the court grants the request for a stay of enforcement, it will order the tenant to make rent payments to the court in the amount ordered by the court and may impose additional conditions.322

A landlord who loses an unlawful detainer lawsuit also may appeal the judgment.

Writ of possession

If a judgment is entered against you and becomes final (for example, if you do not appeal or if you lose on appeal), and you do not move out, the court will issue a writ of possession to the landlord.323 The landlord can deliver this legal document to the sheriff, who will then forcibly evict you from the rental unit if you don’t leave promptly.

Before evicting you, the sheriff will serve you with a copy of the writ of possession.324 The writ of possession instructs you that you must move out by the end of the fifth day after the writ is served on you, and that if you do not move out, the sheriff will remove you from the rental unit and place the landlord in possession of it.325 The cost of serving the writ of possession will be added to the other costs of the suit that the landlord will collect from you.

After you are served with the writ of possession, you have five days to move. If you have not moved by the end of the fifth day, the sheriff will return and physically remove you.326 If your belongings are still in the rental unit, the sheriff may either remove them or have them stored by the landlord, who can charge you reasonable storage fees. If you do not reclaim these belongings within 18 days, the landlord can mail you a notice to pick them up, and then can either sell them at auction or keep them (if their value is less than $300).327 If the sheriff forcibly evicts you, the sheriff’s cost will also be added to the judgment, which the landlord can collect from you.

Setting aside a default judgment

If the tenant does not file a written response to the landlord’s complaint, the landlord can ask the court to enter a default judgment against the tenant. The tenant then will receive a notice of judgment, and a writ of possession as described above.

There are many reasons why a tenant might not respond to the landlord’s complaint. For example, the tenant may have received the summons and complaint, but was not able to respond because the tenant was ill or incapacitated, or for some other very good reason. It is even possible (but not likely) that the tenant was never served with the landlord’s summons and complaint. In situations such as these, where the tenant has a valid reason for not responding to the landlord’s complaint, the tenant can ask the court to set aside the default judgment.

Setting aside a default judgment can be a complex legal proceeding. Common reasons for seeking to set aside a default judgment are the tenant’s (or the tenant’s lawyer’s) mistake, inadvertence, surprise, or excusable neglect.328 A tenant who wants to ask the court to set aside a default judgment must act promptly. The tenant should be able to show the court that he or she has a satisfactory excuse for the default, acted promptly in making the request, and has a good chance to win at trial.329 A tenant who thinks that grounds exist for setting aside a default judgment should first seek advice and assistance from a lawyer, a legal aid organization, or a tenant organization..

Special rules for tenants in the military may make it more difficult for a landlord to obtain a default judgment against the tenant, and may make it possible for a tenant to reopen a default judgment and defend the unlawful detainer action.330

A word about bankruptcy

Some tenants think that filing a bankruptcy petition will prevent them from being evicted. This is not always true.

Filing bankruptcy is a serious decision with many long-term consequences beyond the eviction action. In addition, much of what the public knows about bankruptcy has been changed by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

A tenant who is thinking about filing bankruptcy because of the threat of eviction, or for any reason, should consult a bankruptcy expert and carefully weigh the expert’s advice.

Bankruptcy is a complicated legal specialty and explaining it is beyond the scope of this booklet. However, here is some basic information about bankruptcy as it relates to unlawful detainer proceedings:331

  • A tenant who files a bankruptcy petition after October 17, 2005 (the effective date of the 2005 Bankruptcy Act) normally is entitled to an immediate automatic stay (delay) of a pending unlawful detainer action. If the landlord hasn’t already filed the unlawful detainer action, the automatic stay prevents the landlord from taking steps such as serving a three-day notice or filing the action.332
  • The landlord may petition the bankruptcy court for permission to proceed with the unlawful detainer action (called “relief from the automatic stay”).333
  • The automatic stay may continue in effect until the bankruptcy case is closed, dismissed, or completed. On the other hand, the bankruptcy court may lift the stay if the landlord shows that he or she is entitled to relief.334
  • The automatic stay normally does not prevent the landlord from enforcing an unlawful detainer judgment that was obtained before the tenant’s petition was filed. In some cases, however, the tenant may be able to keep the stay in effect for 30 days after the petition is filed.335
  • The automatic stay does not apply if the landlord’s eviction action is based on the tenant’s endangering the rental property or using illegal controlled substances on the property, and if the landlord files a required certification with the bankruptcy court. The stay normally will remain in effect, however, for 15 days after the landlord files the certification with the court.336
  • A bankruptcy case can be dismissed for “cause” – for example, if the tenant neglects to pay fees or file necessary schedules and financial information, causes unreasonable delay that harms the landlord, or files the case in bad faith.

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14Jan

Living In The Rental Unit

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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“.

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 in When You Have Decided To Rent, 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, and even eviction.

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 Before You Agree to Rent).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 Before You Agree to Rent).

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 Before You Agree to Rent.) 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 Terminations and Evictions). 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 Terminations and Evictions).108

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.)

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

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.) 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.”)

The landlord normally cannot require that you pay the security deposit increase in cash. (See Check or Cash in this section.)

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.

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:

30 day notice rent chart

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:

60 day rent notice chart

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:

Percentage rent increase chart

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 Retaliatory Actions, Evictions and Discrimination). 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.

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).
  • 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 time123 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 subleases 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 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.

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14Jan

When You Have Decided To Rent

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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.

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 Basic Rules Governing Security Deposits).
  • The amount of any late charge or returned check fee (see Late Fees).
  • 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 and the conditions under which the landlord can inspect the rental unit.

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.
  • 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 Living in the Rental Unit, Check or Cash)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.

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:

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, 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

Alterations to Accommodate a Disabled Tenant

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

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 1-800-424-LEAD), 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 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

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 below and under Refunds of Security Deposits.

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.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 cost 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 Application Screening Fee). 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 below and under Refunds of Security Deposits.

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 Living in the Rental Unit, Check or Cash)

  1. 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.
  2. 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 above, 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 in Refunds of Security Deposit.

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 (or one like it). It’s best to do this 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 at the top of 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 on the Inventory Checklist form.

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.

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.

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/lahdinternet/).

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14Jan

Before You Agree To Rent

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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) determines 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 to the amount of advance notice that the landlord must give the tenant to raise the rent (see Rent Increases)).

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 rent 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 Tenant’s notice to end a periodic tenancy). 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. However, 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 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.

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 about who will pay for the shared utilities.

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 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.

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14Jan

Unlawful Discrimination

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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 , 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 financial or income standard for persons who want to live together and combine their incomes that is different from the landlord’s standard 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 and 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“.

However, the owner cannot make oral or written statements, or use notices or 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

Examples of Unlawful Discrimination

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

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.
  • 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.
  • 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 on their website.
  • 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 visit their web site.
  • 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 http://lawhelpca.org/. 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.

 

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14Jan

Choosing The Right Floor for your Property Rentals

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Choosing the right type of flooring in your rentals can be a big decision. Not only does it make a huge difference in the appeal of your units, but also the cost it takes to maintain it.

Of the most popular flooring installations these days, carpet still takes the cake in terms of its market share – something around 60% of material used to floor property is still carpet. But in addition, vinyl is making moves in a huge way in the industry, becoming one of the prime choices of those looking to update their properties in any number of rooms.

So why is vinyl making such headway? Because of the state of the economy these days, being aware of expense has made the consumer more savvy to items that give them more bang for their buck – both now with the price of the materials, but also ongoing in terms of maintenance and other ancillary costs like heating. This is good news since it means what’s trendy now won’t be frivolous and will end up being a good investment for years to come.

Vinyl is easy to clean and can fit into any unit, décor notwithstanding. It’s one of the most versatile, comfortable, and stain-resistant types of flooring possible – a property manager’s dream. Plus, vinyl these days is such a chameleon product. It can morph into whatever other floor you’d like it to resemble: wood, stone, or tile for example. And these types of luxury doppelganger vinyl are priced at a range that still puts them well in the center of the flooring cost spectrum.

Vinyl also stands up to moisture better than wood, making it a good choice in kitchens, bathrooms, or other areas of a home prone to exposure to the elements. And for chilly days, vinyl “tile” flooring in bathrooms is less cold underfoot. So as summer falls into winter, you have a good option for your next renovations.

 

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13Jan

Landlord / Tenant Book Index. All the Information You Need to Know.

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