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14Jan

The Eviction Process

Posted by: admin Categories: Landlords Tenants
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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

Terminations And Evictions

Posted by: admin Categories: Landlords Tenants
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WHEN CAN A LANDLORD TERMINATE A TENANCY?

A landlord can terminate (end) a month-to-month tenancy simply by giving the tenant 30 or 60 days’ advance written notice. (For an explanation of month-to-month tenancies, see Rental Agreements and Leases; for an explanation of 30-day and 60-day notices, see Giving and Receiving Proper Notice and Written Notices of Termination below.)

However, the landlord can terminate the tenancy by giving the tenant only three days’ advance written notice if the tenant has done any of the following:276

  • Failed to pay the rent.
  • Violated any provision of the lease or rental agreement.
  • Materially damaged the rental property (“committed waste”).
  • Substantially interfered with other tenants (“committed a nuisance”).277
  • Committed domestic violence or sexual assault against, or stalked another tenant or subtenant on the premises.
  • Used the rental property for an unlawful purpose.278
  • Engaged in drug dealing, unlawfully used, cultivated, imported, or manufactured illegal drugs.
  • Using the building or property to conduct dogfighting or cockfighting.278.1
  • Unlawful conduct involving weapons or ammunition.279

Three-day notices are further explained below.

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; but in order to evict the tenant, the landlord must first file an unlawful detainer lawsuit in Superior Court.

WRITTEN NOTICES OF TERMINATION

30-day or 60-day notice

A landlord who wants to terminate (end) a month-to-month tenancy can do so by properly serving a written 30-day or 60-day notice on the tenant. Generally, a 30-day or 60-day notice doesn’t have to state the landlord’s reason for ending the tenancy. The 30-Day or 60-Day Notice is discussed in Giving and Receiving Proper Notice, and proper service of notices is discussed below.

In some localities or circumstances, special rules may apply to 30-day or 60-day notices:

  • Some rent control cities require “just cause” for eviction, and the landlord’s notice must state the reason for termination.
  • Subsidized housing programs may limit allowable reasons for eviction, and may require that the notice state one of these reasons (see Giving and Receiving Proper Notice).
  • Some reasons for eviction are unlawful. For example, an eviction cannot be retaliatory or discriminatory (see Retaliatory Actions, Evictions and Discrimination).
  • A landlord cannot evict a tenant for the reason that the water heater must be braced to protect against earthquake damage.280

How to respond to a 30-day or 60-day notice

Suppose that the landlord has properly served you with a 30-day or 60-day notice to terminate the tenancy. During the 30-day or 60-day period, you should either move out or try to make arrangements with the landlord to stay. If you want to continue to occupy the rental unit, ask the landlord what you need to do to make that possible. While a landlord is not required to state a reason for giving a 30-day or 60-day notice, most landlords do have a reason for terminating a tenancy. If you want to stay, it’s helpful to know what you can do to make your relationship with the landlord a better one.

If your landlord agrees that you can continue to occupy the rental unit, it’s important that your agreement with the landlord be in writing. The written agreement might be an attachment to your lease or rental agreement that both the landlord and you sign, or an exchange of letters between you and the landlord that states the details of your agreement. Having the agreement in writing ensures that you and your landlord are clear about your future relationship.

If the landlord doesn’t agree to your staying, you will have to move out. You should do so by the end of the 30th or 60th day. Take all of your personal belongings with you, and leave the rental property at least as clean as when you rented it. This will help with the refund of your security deposit (see “Refunds of Security Deposits“).

If you have haven’t moved at the end of the 30th or 60th day, you will be unlawfully occupying the rental unit, and the landlord can file an unlawful detainer (eviction) lawsuit to evict you.

If you believe that the landlord has acted unlawfully in giving you a 30-day or 60-day notice, or that you have a valid defense to an unlawful detainer lawsuit, you should carefully weigh the pros and cons of contesting the landlord’s likely eviction lawsuit against you if you don’t move out. As part of your decision-making process, you may wish to consult with a lawyer, legal aid organization, tenant-landlord program, or housing clinic. (See “Getting Help From a Third Party“.)

Three-day notice

A landlord can use a written three-day notice (eviction notice) if the tenant has done any of the following:281

  • Failed to pay the rent.
  • Violated any provision of the lease or rental agreement.
  • Materially damaged the rental property (“committed waste”).
  • Used the rental property for an unlawful purpose.
  • Substantially interfered with other tenants (“committed a nuisance”).
  • Committed domestic violence or sexual assault against, or stalked another tenant or subtenant on the premises.282
  • Engaged in drug dealing, unlawfully used, cultivated, imported, or manufactured illegal drugs.283
  • Using the building or property to conduct dogfighting or cockfighting.283.1
  • Unlawful conduct involving weapons or ammunition.284

If the landlord gives the tenant a three-day notice because the tenant hasn’t paid the rent, the notice must accurately state the amount of rent that is due. In addition, the notice must state:

  • The name, address and telephone number of the person to whom the rent must be paid.
  • If payment may be made in person, the usual days and hours that the person is available to receive the rent payment. If the address does not accept personal deliveries, then you can mail the rent to the owner at the name and address stated in the three-day notice. 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 payment is received by the owner on the date of postmark.
  • Instead, the notice may state the name, street address and account number of the financial institution where the rent payment may be made (if the institution is within five miles of the unit). If an electronic fund transfer procedure was previously established for paying rent, payment may be made using that procedure.285

The landlord normally cannot require that the tenant pay the past-due rent in cash. (See “Living in the Rental Unit“.)

If the three-day notice is based on one of the other seven conditions listed above, the notice must either describe the tenant’s violation of the lease or rental agreement, or describe the tenant’s other improper conduct. The three-day notice must be properly served on the tenant (see Proper Service of Notices).

Depending on the type of violation, the three-day notice demands either (1) that the tenant correct the violation or leave the rental unit, or (2) that the tenant leave the rental unit. If the violation involves something that the tenant can correct (for example, the tenant hasn’t paid the rent, or the tenant has a pet but the lease doesn’t permit pets), the notice must give the tenant the option to correct the violation.

Failing to pay the rent, and most violations of the terms of a lease or rental agreement, can be corrected. In these situations, the three-day notice must give the tenant the option to correct the violation. However, the other three conditions listed above cannot be corrected, and the three-day notice can simply order the tenant to leave at the end of the three days.

If you pay the rent that is due or correct a correctable violation of the lease or rental agreement during the three-day notice period, the tenancy continues.286 If you attempt to pay all the past-due rent demanded after the three-day period expires, the landlord can either file a lawsuit to evict you or accept the rent payment. If the landlord accepts the rent, the landlord waives (gives up) the right to evict you based on late payment of rent.287

See below on how to count the three days.

How to respond to a three-day notice

Suppose that your landlord properly serves you a three-day notice because you haven’t paid the rent. You must either pay the full amount of rent that is due or vacate (leave) the rental unit by the end of the third day, unless you have a legal basis for not paying rent (see The “repair and deduct” remedy and “rent withholding remedy“).

If you decide to pay the rent that is due, it’s best to call the landlord or the landlord’s agent immediately. Tell the landlord or agent that you intend to pay the amount demanded in the notice (if it is correct) and arrange for a time and location where you can deliver the payment to the landlord or agent. You must pay the rent by the end of the third day. You should pay the unpaid rent by cashier’s check, money order, or cash. Whatever the form of payment, be sure to get a receipt signed by the landlord or agent that shows the date and the amount of the payment.

The landlord normally cannot require that you pay the unpaid rent in cash. (See “Living in the Rental Unit“.)

If the amount of rent demanded is not correct, it’s essential that you discuss this with the landlord or agent immediately, and offer to pay the amount that is actually due. Make this offer orally and in writing, and keep a copy of the written offer. The landlord’s notice is not legally effective if it demands more rent than is actually due, or if it includes any charges other than for past-due rent (for example, late charges, unpaid utility charges, dishonored check fees, or interest).288

If the amount of rent demanded is correct and doesn’t include any other charges, and if you decide not to pay, then you and any other occupants should move out promptly.

If you stay beyond the three days without paying the rent that is properly due, you will be occupying the rental unit unlawfully. The landlord then has a single, powerful remedy: a court action to evict you and recover the unpaid rent (called an “unlawful detainer [eviction] lawsuit” [see The Eviction Process]). Your failure to pay the rent and to leave promptly may also become part of your credit history, which could affect your ability to rent from other landlords.

If the three-day notice is based on something other than failure to pay rent, the notice will state whether you can correct the problem and remain in the rental unit (see three-day notice above). If the problem can be corrected and you want to stay in the rental unit, you must correct the problem by the end of the third day. Once you have corrected the problem, you should promptly notify the landlord or the property manager.

Even if the notice does not state that you can correct the problem, you can try to persuade the landlord that you will correct the problem and be a good tenant if the landlord agrees to your staying. If the landlord agrees, keep your promise immediately. The landlord should then waive (forgive) your violation, and you should be able to stay in the rental unit. However, in the event of another violation, the landlord probably will serve you with another three-day notice, or with a 30-day or 60-day notice.

If you believe that the landlord has acted unlawfully in giving you a three-day notice, or that you have a valid defense to an unlawful detainer lawsuit, you should carefully weigh the pros and cons of contesting the landlord’s likely eviction lawsuit against you if you don’t move out. As part of your decision-making process, you may wish to consult with a lawyer, legal aid organization, tenant-landlord program, or housing clinic. (See “Getting Help From a Third Party“.)

How to count the three days

Begin counting the three days on the first day after the day the notice was served. If the third day falls on a Saturday, Sunday, or holiday, the three-day period will not expire until the following Monday or nonholiday.289 (See “proper service of notices” below for a discussion of service of the notice and the beginning of the notice period.)

PROPER SERVICE OF NOTICES

A landlord’s three-day, 30-day, or 60-day notice to a tenant must be “served” properly to be legally effective. The terms “serve” and “service“refer to procedures required by the law. These procedures are designed to increase the likelihood that the person to whom notice is given actually receives the notice.

A landlord can serve a three-day notice on the tenant in one of three ways: by personal service, by substituted service, or by posting and mailing. The landlord, the landlord’s agent, or anyone over 18 can serve a notice on a tenant.

  • Personal service – To serve you personally, the person serving the notice must hand you the notice (or leave it with you if you refuse to take it).290 The three-day period begins the day after you receive the notice.
  • Substituted service on another person -If the landlord can’t find you at home, the landlord should try to serve you personally at work. If the landlord can’t find you at home or at work, the landlord can use “substituted service” instead of serving you personally.

    To comply with the rules on substituted service, the person serving the notice must leave the notice with a person of “suitable age and discretion” at your home or work and also mail a copy of the notice to you at home.291 A person of suitable age and discretion normally would be an adult at your home or workplace, or a teenage member of your household.

    Service of the notice is legally complete when both of these steps have been completed. The three-day period begins the day after both steps have been completed.

  • Posting and mailing – If the landlord can’t serve the notice on you personally or by substituted service, the notice can be served by taping or tacking a copy to the rental unit in a conspicuous place (such as the front door of the rental unit) and by mailing another copy to you at the rental unit’s address.292 (This service method is commonly called “posting and mailing” or “nailing and mailing.”)

    Service of the notice is not complete until the copy of the notice has been mailed. The three-day period begins the day after the notice was posted and mailed.293

How to count the three days is explained above

A landlord can use any of these methods to serve a 30-day or 60-day notice on a tenant, or can send the notice to the tenant by certified or registered mail with return receipt requested.

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14Jan

Refunds Of Security Deposits

Posted by: admin Categories: General
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Common problems and how to avoid them

The most common disagreement between landlords and tenants is over the refund of the tenant’s security deposit after the tenant has moved out of the rental unit. California law therefore specifies procedures that the landlord must follow for refunding, using, and accounting for tenants’ security deposits.

California law specifically allows the landlord to use a tenant’s security deposit for four purposes:

  • For unpaid rent;
  • For cleaning the rental unit when the tenant moves out, but only to make the unit as clean as it was when the tenant first moved in;214
  • For repair of damages, other than normal wear and tear, caused by the tenant or the tenant’s guests; and
  • If the lease or rental agreement allows it, for the cost of restoring or replacing furniture, furnishings, or other items of personal property (including keys), other than because of normal wear and tear.215

A landlord can withhold from the security deposit only those amounts that are reasonably necessary for these purposes. The security deposit cannot be used for repairing defects that existed in the unit before you moved in, for conditions caused by normal wear and tear during your tenancy or previous tenancies, or for cleaning a rental unit that is as clean as it was when you moved in.216 A rental agreement or lease can never state that a security deposit is “nonrefundable.”217

Under California law, 21 calendar days or less after you move, your landlord must either:

  • Send you a full refund of your security deposit, or
  • Mail or personally deliver to you an itemized statement that lists the amounts of any deductions from your security deposit and the reasons for the deductions, together with a refund of any amounts not deducted.218

The landlord also must send you copies of receipts for the charges that the landlord incurred to repair or clean the rental unit and that the landlord deducted from your security deposit. The landlord must include the receipts with the itemized statement.219 The landlord must follow these rules:

  • If the landlord or the landlord’s employees did the work – The itemized statement must describe the work performed, including the time spent and the hourly rate charged. The hourly rate must be reasonable.
  • If another person or business did the work – The landlord must provide you copies of the person’s or business’ invoice or receipt. The landlord must provide the person’s or business’ name, address, and telephone number on the invoice or receipt, or in the itemized statement.
  • If the landlord deducted for materials or supplies – The landlord must provide you a copy of the invoice or receipt. If the item used to repair or clean the unit is something that the landlord purchases regularly or in bulk, the landlord must reasonably document the item’s cost (for example, by an invoice, a receipt or a vendor’s price list)220
  • If the landlord made a good faith estimate of charges – The landlord is allowed to make a good faith estimate of charges and include the estimate in the itemized statement in two situations: (1) the repair is being done by the landlord or an employee and cannot reasonably be completed within the 21 days, or (2) services or materials are being supplied by another person or business and the landlord does not have the invoice or receipt within the 21 days. In either situation, the landlord may deduct the estimated amount from your security deposit. In situation (2), the landlord must include the name, address and telephone number of the person or business that is supplying the services or materials.
    Within 14 calendar days after completing the repairs or receiving the invoice or receipt, the landlord must mail or deliver to you a correct itemized statement, the invoices and receipts described above, and any refund to which you are entitled.221

The landlord must send the itemized statement, copies of invoices or receipts, and any good faith estimate to you at the address that you provide. If you do not provide an address, the landlord must send these documents to the address of the rental unit that you moved from.222

The landlord is not required to send you copies of invoices or receipts, or a good faith estimate, if the repairs or cleaning cost less than $126 or if you waive your right to receive them.223 If you wish to waive the right to receive these documents, you may do so by signing a waiver when the landlord gives you a 30-day or 60-day notice to end the tenancy (see Landlord’s notice to end a periodic tenancy), when you give the landlord a 30-day notice to end the tenancy (see Terminations and Evictions), when the landlord servers you with a three-day note to end the tenancy (see Three-day notice) or after any of these notices. If you have a lease, you may waive this right no earlier than 60 days before the lease ends. The waiver form given to you by the landlord must include the text of the security deposit law that describes your right to receive receipts.246

What if the repairs cost less than $126 or you waived your right to receive copies of invoices, receipts and any good faith estimate? The landlord still must send you an itemized statement 21 calendar days or less after you move, along with a refund of any amounts not deducted from your security deposit. When you receive the itemized statement, you may decide that you want copies of the landlord’s invoices, receipts and any good faith estimate. You may request copies of these documents from the landlord within 14 calendar days after you receive the itemized statement. It’s best to make this request both orally and in writing. Keep a copy of your letter or e-mail. The landlord must send you copies of invoices, receipts and any good faith estimate within 14 calendar days after he or she receives your request.247

What should you do if you believe that your landlord has made an improper deduction from your security deposit, or if the landlord keeps all of the deposit without good reason?

Tell the landlord or the landlord’s agent why you believe that the deductions from your security deposit are improper. Immediately ask the landlord or agent for a refund of the amount that you believe you’re entitled to get back. You can make this request by phone or e-mail, but you should follow it up with a letter. The letter should state the reasons that you believe the deductions are improper, and the amount that you feel should be returned to you. Keep a copy of your letter. It’s a good idea to send the letter to the landlord or agent by certified mail and to request a return receipt to prove that the landlord or agent received the letter. Or, you can deliver the letter personally and ask the landlord or agent to acknowledge receipt by signing and dating your copy of the letter.

If the landlord or agent still doesn’t send you the refund that you think you’re entitled to receive, try to work out a reasonable compromise that is acceptable to both of you. You also can suggest that the dispute be mediated by a neutral third person or agency (Getting Help From a Third Party.) You can contact one of the agencies listed in Appendix 3 for assistance. If none of this works, you may want to take legal action (see below).

What if the landlord doesn’t provide a full refund, or a statement of deductions and a refund of amounts not deducted, by the end of the 21-day period as required by law? According to a California Supreme Court decision, the landlord loses the right to keep any of the security deposit and must return the entire deposit to you.248 Even so, it may be difficult for you to get your entire deposit back from the landlord.249 You should contact one of the agencies listed in Getting Help From a Third Party for advice.

Practically speaking, you have two options if the landlord doesn’t honor the 21-day rule. The first step for both is to call and write the landlord to request a refund of your entire security deposit. You can also suggest that the dispute be mediated. If the landlord presents good reasons for keeping some or all of your deposit for a purpose listed above, it’s probably wise to enter into a reasonable compromise with the landlord. This is because the other option is difficult and the outcome may be uncertain.

The other option is to sue the landlord in small claims court for return of your security deposit. However, the landlord then can file a counterclaim against you. In the counterclaim, the landlord can assert a right to make deductions from the deposit, for example, for unpaid rent or for damage to the rental that the landlord alleges that you caused. Each party then will have to argue in court why he or she is entitled to the deposit.250

Initial Inspection Before Tenant Moves Out

A tenant can ask the landlord to inspect the rental unit before the tenancy ends. During this “Initial Inspection,” the landlord or the landlord’s agent identifies defects or conditions that justify deductions from the tenant’s security deposit. This gives the tenant the opportunity to do the identified cleaning or repairs in order to avoid deductions from the security deposit. The tenant has the right to be present during the inspection.

The landlord must perform an initial inspection as described in this sidebar if the tenant requests it, but cannot make an initial inspection unless the tenant requests it. However, the landlord is not required to perform an initial inspection if the landlord has served the tenant with a three-day notice (an eviction notice) for one of the reasons specified in footnote 224.

Landlord’s notice

The landlord must give the tenant written notice of the tenant’s right to request an initial inspection of the rental and to be present during the inspection. The landlord must give this notice to the tenant a “reasonable time” after either the landlord or the tenant has given the other written notice of intent to terminate (end) the tenancy (see Moving Out). If the tenant has a lease, the landlord must give the tenant this notice a “reasonable time” before the lease ends. If the tenant does not request an initial inspection, the landlord does not have any other duties with respect to the initial inspection.225

Scheduling the inspection

When the tenant requests an initial inspection, the landlord and the tenant must try to agree on a mutually convenient date and time for the inspection. The inspection cannot be scheduled earlier than two weeks before the end of the tenancy or lease term. In any event, the inspection should be scheduled to allow the tenant ample time to perform repairs or do cleaning identified during the initial inspection.226 The landlord must give the tenant at least 48 hours’ advance written notice of the date and time of the inspection whether or not the parties have agreed to a date and time for the inspection. The landlord is not required to give the 48-hour notice to the tenant if:

  • the parties have not agreed on a date and time, and the tenant no longer wants the inspection; or
  • the landlord and tenant have agreed in writing to waive (give up) the 48-hour notice requirement.

Itemized statement

The landlord or the landlord’s agent may perform the inspection if the tenant is not present, unless the tenant has previously withdrawn the request for inspection.227

Based on the inspection, the landlord or agent must prepare an itemized statement of repairs or cleaning that the landlord or agent believes the tenant should perform in order to avoid deductions from the tenant’s security deposit. The landlord or agent must give the statement to the tenant if the tenant is present for the inspection, or leave it inside the unit if the tenant is not present.228 The landlord or agent also must give the tenant a copy of the sections of California’s security deposit statute that list lawful uses of tenants’ security deposits.229

The security deposit statute has the effect of limiting the kinds of repairs or cleaning that the landlord or agent may properly include in the itemized statement. Because of this statute, the landlord cannot, for example, use the tenant’s security deposit to repair damages or correct defects in the rental that existed when the tenant moved in or that are the result of ordinary wear and tear.230 Since the landlord cannot use the tenant’s deposit to correct these kinds of defects, the landlord or agent cannot list them in the itemized statement.

Before the tenancy ends, the tenant may make the repairs or do the cleaning described in the itemized statement, as allowed by the rental agreement, in order to avoid deductions from the deposit.231 However, the tenant cannot be required to repair defects or do cleaning if the tenant’s security deposit could not be used properly to pay for that repair or cleaning.

Final inspection

The landlord may perform a final inspection after the tenant has moved out of the rental. The landlord may make a deduction from the tenant’s security deposit to repair a defect or correct a condition:

  • That was identified in the inspection statement and that the tenant did not repair or correct; or,
  • That occurred after the initial inspection; or
  • That was not identified during the initial inspection due to the presence of the tenant’s possessions.232

Any deduction must be reasonable in amount, and must be for a purpose permitted by the security deposit statute.233 Twenty-one calendar days (or less) after the tenancy ends, the landlord must refund any portion of the security deposit that remains after the landlord has made any lawful deductions(see Basic Rules Rules Governing Security Deposits and Refunds of Security Deposits).234

Example

Suppose that you have a month-to-month tenancy, and that you properly give your landlord 30 days’ advance written notice that you will end the tenancy. A few days after the landlord receives your notice, the landlord gives you written notice that you may request an initial inspection and be present during the inspection. A few days after that, the landlord telephones you, and you both agree that the landlord will perform the initial inspection at noon on the 14th day before the end of the tenancy. Forty-eight hours before the date and time that you have agreed upon, the landlord gives you a written notice confirming the date and time of the inspection.

The landlord performs the initial inspection at the agreed time and date, and you are present during the inspection. Suppose that you have already moved some of your possessions, but that your sofa remains against the living room wall. When the landlord completes the inspection, the landlord gives you an itemized statement that lists the following items, and also gives you a copy of the required sections of the security deposit statute. The itemized statement lists the following:

  • Repair cigarette burns on window sill.
  • Repair worn carpet in front of couch.
  • Repair door jamb chewed by your dog.
  • Wash the windows.
  • Clean soap scum in bathtub.

Suppose that you scrub the bathtub until it sparkles, but don’t do any of the repairs or wash the windows. After you move out, the landlord performs the final inspection. Twenty-one days after the tenancy ends, the landlord sends you an itemized statement of deductions, along with a refund of the rest of your security deposit. Suppose that the itemized statement lists deductions from your security deposit for the costs of repairing the window sill, the carpet and the door jamb, and for washing the windows. Has the landlord acted properly?

Whether the landlord has acted properly depends on other facts. Suppose that the cigarette burns were caused by a previous tenant and that the carpet in the room with the couch was 10 years old. According to the security deposit statute, the cigarette burns are defective conditions from another tenancy, and the worn carpet is normal wear and tear, even if some of it occurred while you were a tenant. The statute does not allow the landlord to deduct from your security deposit to make these repairs.235 However, the landlord can deduct a reasonable amount to repair the door jamb chewed by your dog. This is because this damage occurred during your tenancy and is more than normal wear and tear.236

Suppose that the windows were dirty when you moved in, and that they were just as dirty when you moved out. According to the security deposit statute, the windows are in “the same state of cleanliness” as at the beginning of your tenancy. The statute does not allow the landlord to deduct from your security deposit to do this cleaning.237

Now suppose that while you were moving out, you broke the glass in the dining room light fixture and found damage to the wall behind the sofa that you caused when you moved in. Neither defect was listed in the landlord’s itemized statement. Suppose that your landlord nonetheless makes deductions from your security deposit to repair these defects. Has the landlord acted properly in this instance?

The landlord has acted properly, as long as the amounts deducted are reasonably necessary for the repairs made.238 Both of these defects are more than normal wear and tear, and the landlord is allowed to make deductions for defects that occur after the initial inspection, as well as for defects that could not be discovered because of the presence of the tenant’s belongings.239

SUGGESTED APPROACHES TO SECURITY DEPOSIT DEDUCTIONS

California’s security deposit statute specifically allows the landlord to use a tenant’s security deposit for the four purposes stated above. The statute limits the landlord’s deduction from the security deposit to an amount that is “reasonably necessary” for the listed purposes.240

Unfortunately, the statute’s terms “reasonably necessary” and “normal wear and tear” are vague and mean different things to different people. The following suggestions are offered as practical guides for dealing with security deposit issues. While these suggestions are consistent with the law, they are not necessarily the law in this area.

1. Costs of cleaning

A landlord may properly deduct from the departing tenant’s security deposit to make the rental unit as clean as it was when the tenant moved in.241

A landlord cannot routinely charge each tenant for cleaning carpets, drapes, walls, or windows in order to prepare the rental unit for the next tenancy. Instead, the landlord must look at how well the departing tenant cleaned the rental unit, and may charge cleaning costs only if the departing tenant left the rental unit (or a portion of it) less clean than when he or she moved in. Reasonable cleaning costs would include the cost of such things as eliminating flea infestations left by the tenant’s animals, cleaning the oven, removing decals from walls, removing mildew in bathrooms, defrosting the refrigerator, or washing the kitchen floor. But the landlord could not charge for cleaning any of these conditions if they existed at the time that the departing tenant moved in. In addition, the landlord could not charge for the cumulative effects of wear and tear. Suppose, for example, that the tenant had washed the kitchen floor but that it remained dingy because of wax built up over the years. The landlord could not charge the tenant for stripping the built-up wax from the kitchen floor.

The The landlord is allowed to deduct from the tenant’s security deposit only the reasonable cost of cleaning the rental unit.242

2. Carpets and drapes – “useful life” rule

Normal wear and tear to carpets, drapes and other furnishings cannot be charged against a tenant’s security deposit.243 Normal wear and tear includes simple wearing down of carpet and drapes because of normal use or aging, and includes moderate dirt or spotting. In contrast, large rips or indelible stains justify a deduction from the tenant’s security deposit for repairing the carpet or drapes, or replacing them if that is reasonably necessary.

One common method of calculating the deduction for replacement prorates the total cost of replacement so that the tenant pays only for the remaining useful life of the item that the tenant has damaged or destroyed. For example, suppose a tenant has damaged beyond repair an eight-year-old carpet that had a life expectancy of ten years, and that a replacement carpet of similar quality would cost $1,000. The landlord could properly charge only $200 for the two years’ worth of life (use) that would have remained if the tenant had not damaged the carpet.

3. Repainting walls

One approach for determining the amount that the landlord can deduct from the tenant’s security deposit for repainting, when repainting is necessary, is based on the length of the tenant’s stay in the rental unit. This approach assumes that interior paint has a two-year life. (Some landlords assume that interior paint has a life of three years or more.)

Length of stay
Less than 6 months
6 months to 1 year
1 year to 2 years
2 or more years
Deduction
full cost
two-thirds of cost
one-third of cost
no deduction

Using this approach, if the tenant lived in the rental unit for two years or more, the tenant could not be charged for any repainting costs, no matter how dirty the walls were. 244

4. Other damage to walls

Generally, minor marks or nicks in walls are the landlord’s responsibility as normal wear and tear (for example, worn paint caused by a sofa against the wall). Therefore, the tenant should not be charged for such marks or nicks. However, a large number of holes in the walls or ceiling that require filling with plaster, or that otherwise require patching and repainting, could justify withholding the cost of repainting from the tenant’s security deposit. In this situation, deducting for painting would be more likely to be proper if the rental unit had been painted recently, and less likely to be proper if the rental unit needed repainting anyway. Generally, large marks or paint gouges are the tenant’s responsibility.245

5. Common sense and good faith

Remember: These suggestions are not hard and fast rules. Rather, they are offered to help tenants and landlords avoid, understand, and resolve security deposit disputes.

Security deposit disputes often can be resolved, or avoided in the first place, if the parties exercise common sense and good judgment, and deal with each other fairly and in good faith (see Landlord’s and tenant’s duty of good faith and fair dealing). For example, a landlord should not deduct from the tenant’s security deposit for normal wear and tear, and a tenant should not try to avoid responsibility for damages that the tenant has caused.

The requirement that the landlord send the tenant copies of invoices and receipts with the itemized statement of deductions (see above) may help avoid potential security deposit disputes. Before sending these items to the tenant, the landlord has the opportunity to double check them to be sure that the amounts deducted are reasonable, accurate and reasonably necessary for a purpose specified by the security deposit statute. Before challenging the deductions, the tenant has the opportunity to review and carefully evaluate the documentation provided by the landlord. Straightforward conduct by both parties at this stage may avoid or minimize a dispute over deductions from the tenant’s security deposit.

Especially in disputes about security deposits, overreaching by one party only invites the other party to take a hard line. Disputes that reach this level often become unresolvable by the parties and wind up in court.

Refund of security deposits after sale of building

When a building is sold, the selling landlord must do one of two things with the tenants’ security deposits. The selling landlord must either transfer the security deposits to the new landlord, or return the security deposits to the tenants following the sale.251

Before transferring the security deposits to the new landlord, the selling landlord may deduct money from the security deposits. Deductions can be made for the same reasons that deductions are made when a tenant moves out (for example, to cover unpaid rent). If the selling landlord makes deductions from the security deposits, he or she must transfer the balance of the security deposits to the new landlord.252

The selling landlord must notify the tenants of the transfer in writing. The selling landlord must also notify each tenant of any amounts deducted from the security deposit and the amount of the deposit transferred to the new landlord. The written notice must also include the name, address, and telephone number of the new landlord. The selling landlord must send this notice to each tenant by first-class mail, or personally deliver it to each tenant.253

The new landlord becomes legally responsible for the security deposits when the selling landlord transfers the deposits to the new landlord.254

If the selling landlord returns the security deposits to the tenants, the selling landlord may first make lawful deductions from the deposits (see Basic Rules Governing Security Deposits, and above). The selling landlord must send each tenant an itemized statement that lists the amounts of and reasons for any deductions from the tenant’s security deposit, along with a refund of any amounts not deducted (see above).255

If the selling landlord fails to either return the tenants’ security deposits to the tenants or transfer them to the new owner, both the new landlord and the selling landlord are legally responsible to the tenants for the security deposits.256 If the selling landlord and the security deposits can’t be found, the new landlord must refund all security deposits (after any proper deductions) as tenants move out.257

The new landlord can’t charge a new security deposit to current tenants simply to make up for security deposits that the new landlord failed to obtain from the selling landlord. But if the security deposits have been returned to the tenants, or if the new landlord has properly accounted to the tenants for proper deductions taken from the security deposits, the new landlord may legally collect new security deposits.258

If the selling landlord has returned a greater amount to a tenant than the amount of the tenant’s security deposit, the new landlord may recover this excess amount from the tenant.259

Can the new landlord increase the amount of your security deposit? This depends, in part, on the type of tenancy that you have. If you have a lease, the new landlord can’t increase your security deposit unless this is specifically allowed by the lease. For periodic tenants (those renting month-to-month, for example) the new landlord can increase security deposits only after giving proper advance written notice. In either situation, the total amount of the security deposit after the increase cannot be more than the legal limit (see Rules Rules Governing Security Deposits). The landlord normally cannot require that you pay the security deposit increase in cash. (See “Living in the Rental Unit, Check or Cash“.)

All of this means that it’s important to keep copies of your rental agreement and the receipt for your security deposit. You may need those records to prove that you paid a security deposit, to verify the amount, and to determine whether the landlord had a right to make a deduction from the deposit.260

Legal actions for obtaining refunds of security deposits

Suppose that your landlord does not return your security deposit as required by law, or makes improper deductions from it. If you cannot successfully work out the problem with your landlord, you can file a lawsuit in small claims court for the amount of the security deposit plus court costs, and possibly also a penalty and interest, up to a maximum of $10,000 (If your claim is for a little more than $10,000261, you can waive (give up) the extra amount and still use the small claims court.) For amounts greater than $10,000, you must file in superior court, and you ordinarily will need a lawyer in order to effectively pursue your case. In such a lawsuit, the landlord has the burden of proving that his or her deductions from your security deposit were reasonable.262

If you prove to the court that the landlord acted in “bad faith” in refusing to return your security deposit, the court can order the landlord to pay you the amount of the improperly withheld deposit, plus up to twice the amount of the security deposit as a “bad faith” penalty. The court can award a bad faith penalty in addition to actual damages whenever the facts of the case warrant—even if the tenant has not requested the penalty.263 These additional amounts can also be recovered if a landlord who has purchased your building makes a “bad faith” demand for replacement of security deposits. The landlord has the burden of proving the authority upon which the demand for the security deposits was based.264

Whether you can collect attorney’s fees if you win such a suit depends on whether the lease or rental agreement contains an attorney’s fee clause.265 If the lease or rental agreement contains an attorney’s fee clause, you can claim attorney’s fees as part of the judgment, even if the clause states that only the landlord can collect attorney’s fees.266 However, you can only collect attorney’s fees if you were represented by an attorney.267

TENANT’S DEATH

Suppose that a tenant who has a tenancy for a specified term (for example, a one-year lease) dies. The tenancy continues until the end of the lease term, despite the tenant’s death. Responsibility for the rest of the lease term passes to the tenant’s executor or administrator.268

Now suppose instead that the tenant had a month-to-month tenancy. In this case, the tenancy is terminated (ended) by notice of the tenant’s death.269 The tenancy ends on the 30th day following the tenant’s last payment of rent before the tenant’s death. No 30-day or 60-day notice is required to terminate the tenancy.270

MOVING AT THE END OF A LEASE

A lease expires automatically at the end of the lease term.271 The tenant is expected either to renew the lease before it expires (with the landlord’s agreement) or to move out. A lease usually doesn’t require a tenant to give the landlord any advance written notice when the lease is about to expire. However, the tenant should read the lease to see if it has any provisions covering what happens at the end of the lease.

Before you move, you may want to give the landlord a courtesy notice stating that you do not want to renew your lease.

If you continue living in the rental after the lease expires, and if the landlord accepts rent from you, your tenancy will be a periodic tenancy from that point on. The length of time between your rent payments will determine the type of the tenancy (for example, monthly rent results in a month-to-month tenancy). Except for the length of the agreement, all other provisions of the lease will remain in effect.272 Sometimes, a landlord will give a tenant a 30-day notice before the lease ends to be certain that the tenancy does not continue after the lease expires.273

If you don’t move in time, and if the landlord refuses to accept rent after the lease expires, the landlord can file an eviction lawsuit immediately without giving you any notice (see The Eviction Process). (This may not be true if you live in a rent control jurisdiction.)274

Important: If you want to renew your lease, you should begin negotiating with your landlord in plenty of time before the lease expires. Both your landlord and you will have to agree to the terms of the new lease. This process may take some time if one of you wants to negotiate different terms in the new lease.

Special Rules for Tenants in the Military:A servicemember may terminate (end) a lease any time after entering the military or after the date of the member’s military orders. This right applies to a tenant who joins the military after signing a lease, and to a servicemember who signs a lease and then receives orders for a change of permanent station or deployment for at least 90 days.

The servicemember must give the landlord or the landlord’s agent written notice of termination and a copy of the orders. The servicemember may personally deliver the notice to the landlord or agent, send the notice by private delivery service (such as FedEx or UPS), or send it by certified mail with return receipt requested. Proper termination relieves a servicemember’s dependent, such as a spouse or child, of any obligation under the lease.

When rent is paid monthly, termination takes effect 30 days after the next rent due date that follows delivery of the notice. Rent must be paid on a prorated basis up to the date that the termination takes effect. If rent or lease amounts have been paid in advance for the period following the effective date of termination, the landlord must refund these amounts within 30 days after the effective date. 275

Example: The servicemember pays $600 rent on the tenth of each month under the terms of his lease. The servicemember pays the rent on June 10, and then personally gives the landlord proper notice of termination on June 15. The date that termination takes effect is August 9 (30 days after the July 10 rent due date). The servicemember must pay $600 rent on July 10 for the period from July 10 through August 9. By September 8, the landlord must return any rent paid in advance for the period after the effective date of termination. The landlord also must return any “lease amounts paid in advance” (such as the unused portion of the servicemember’s security deposit) by September 8.

THE INVENTORY CHECKLIST

You and the landlord or the landlord’s agent can use the inventory checklist if you request an initial inspection of the rental unit before you move out (see Initial Inspections Before Tenant Moves Out above). You and the landlord or agent should agree on a mutually convenient date and time for the inspection about two weeks before the end of the tenancy or the lease term. You and the landlord or agent should walk through the rental unit at that time and complete the “Condition Upon Initial Inspection” portion of the checklist.

After you have moved out, the landlord can use the “Condition Upon Departure” portion of the checklist to conduct the final inspection (see the Inventory Checklist). It’s a good idea for you to be present when the landlord conducts the final inspection, but the law does not require that you be present or that the landlord allow you to be present.

If you don’t want an initial inspection, you and the landlord should make arrangements for a final inspection close to the time that you move out. You and the landlord or agent should walk through the rental and complete the “Condition Upon Departure” portion of the checklist. Ideally, this walkthrough should occur after you have moved all of your belongings and have thoroughly cleaned the rental unit. Carefully completing the checklist at this point will help identify problem areas, and will help avoid disagreements after you have moved.

For example, you can identify repairs or cleaning that may be needed by comparing items noted under “Condition Upon Arrival” and “Condition Upon Departure.” Items identified as needing repair or cleaning may result in deductions from your security deposit, unless you take care of them yourself or reach an agreement with the landlord.

Both you and the landlord or agent should sign and date the inventory checklist after each inspection. (The landlord or agent should sign the checklist even if you’re not present.) Be sure to get a copy of the signed form after each inspection.

See additional suggestions regarding the inventory checklist on the Inventory Checklist, and “Refunds of Security Deposits“.

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14Jan

Moving Out

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Giving and Receiving Proper Notice

Tenant’s notice to end a periodic tenancy

To end a periodic rental agreement (for example, a month-to-month agreement), you must give your landlord proper written notice before you move.

You must give the landlord the same amount of notice as there are days between rent payments.193 This means that if you pay rent monthly, you must give the landlord written notice at least 30 days before you move. If you pay rent every week, you must give the landlord written notice at least seven days before you move.194 This is true even if the landlord has given you a 60-day notice to end the rental agreement and you want to leave sooner (see Landlord’s notice to end a periodic tenancy.)195

If your rental agreement specifies a different amount of notice (for example 10 days), you must give the landlord written notice as required by the agreement.196

To avoid later disagreements, date the notice, state the date that you intend to move, and make a copy of the notice for yourself. It’s best to deliver the notice to the landlord or property manager in person, or mail it by certified mail with return receipt requested. (You can also serve the notice by one of the methods described under “Proper Service of Notices“.)197

You can give the landlord notice any time during the rental period, but you must pay full rent during the period covered by the notice. For example, say you have a month-to-month rental agreement, and pay rent on the first day of each month. You could give notice any time during the month (for example, on the tenth). Then, you could leave 30 days later (on the tenth of the following month, or earlier if you chose to). But you would have to pay rent for the first 10 days of the next month whether you stay for those 10 days or move earlier. (Exception: You would not have to pay rent for the entire 10 days if you left earlier, and the landlord rented the unit to another tenant during the 10 days, and the new tenant paid rent for all or part of the 10 days.)198

The rental agreement or lease must state the name and address of the person or entity to whom you must make rent payments (see When You Rent section).If this address does not accept personal deliveries, you can mail your notice to the owner at the name and address stated in the lease or rental agreement. If you can show proof that you mailed the notice to the stated name and address (for example, a receipt for certified mail), the law assumes that the notice is receivable by the owner on the date of postmark.199

Tenant’s notice to end tenancy due to domestic violence, sexual assault, or stalking

You may notify your landlord that you or another household member has been a victim of domestic violence, sexual assault, or stalking, and that you intend to move out. However, you would still be responsible for payment of the rent for 30 days following your notice. You are required to attach to your notice to the landlord a copy of the restraining order, emergency protective order, or police report, within 60 days of the day such order or report was issued or made.200

A landlord cannot end or refuse to renew your tenancy based upon the fact that you or a member of your household is a victim of a documented act of domestic violence, sexual assault, or stalking.200.1 If you request that the landlord change your locks and the landlord fails to do so within 24 hours of your request, you may then change the locks yourself. If the restrained person is also a tenant of the unit, that person is still responsible for upholding their end of the lease. These rules apply to leases signed after January 1, 2011.200.2

Landlord’s notice to end a periodic tenancy

A landlord can end a periodic tenancy (for example, a month-to-month tenancy) by giving the tenant proper advance written notice. Your landlord must give you 60 days advance written notice that the tenancy will end if you and every other tenant or resident have lived in the rental unit for a year or more.201 However, the landlord must give you 30 days advance written notice in either of the following situations:

  • Any tenant or resident has lived in the rental unit less than one year;202 or
  • The landlord has contracted to sell the rental unit to another person who intends to occupy it for at least a year after the tenancy ends. In addition, all of the following must be true in order for the selling landlord to give you a 30-day notice
  1. The landlord must have opened escrow with a licensed escrow agent or real estate broker, and
  2. The landlord must have given you the 30-day notice no later than 120 days after opening the escrow, and
  3. The landlord must not previously have given you a 30-day or 60-day notice, and
  4. The rental unit must be one that can be sold separately from any other dwelling unit. (For example, a house or a condominium can be sold separately from another dwelling unit.) 203

The landlord usually isn’t required to state a reason for ending the tenancy in the 30-day or 60-day notice (see “Thirty-Day or Sixty-Day Notice“). The landlord can serve the 30-day or 60-day notice by certified mail or by one of the methods described under “Proper Service of Notices“.204

Note: In the circumstances described in the Three Day Notice section, the landlord can give the tenant just three days’ advance written notice.

If you receive a 30-day or 60-day notice, you must leave the rental unit by the end of the 30th or 60th day after the date on which the landlord served the notice (see Written Notices of Termination). For example, if the landlord served a 60-day notice on July 16, you would begin counting the 60 days on July 17, and the 60-day period would end on September 14. If September 14 falls on a weekday, you would have to leave on or before that date. However, if the end of the 60-day period falls on a Saturday, you would not have to leave until the following Monday, because Saturdays and Sundays are legal holidays. Other legal holidays also extend the notice period.205

If you don’t move by the end of the notice period, the landlord can file an unlawful detainer lawsuit to evict you (see The Eviction Process).

What if the landlord has given you a 60-day notice, but you want to leave sooner? You can give the landlord the same amount of notice as there are days between rent payments (for example, 30 days’ notice if you pay rent monthly) provided that –

  • The amount of your notice is at least as long as the number of days between rent payments, and
  • Your proposed termination date is before the landlord’s termination date.206

What if the landlord has given you a 30-day or 60-day notice, but you want to continue to rent the property, or you believe that you haven’t done anything to cause the landlord to give you a notice of termination? In this kind of situation, you can try to convince the landlord to withdraw the notice. Try to find out why the landlord gave you the notice. If it’s something within your control (for example, consistently late rent, or playing music too loud), assure the landlord that in the future, you will pay on time or keep the volume turned down. Then, keep your promise. If the landlord won’t withdraw the notice, you will have to move out at the end of the 30-day or 60-day period, or be prepared for the landlord to file an unlawful detainer lawsuit to evict you.

Special rules may apply in cities with rent control. For example, in some communities with rent control ordinances, a periodic tenancy cannot be ended by the landlord without a good faith “just cause” or “good cause” reason to evict. In these communities, the landlord must state the reason for the termination, and the reason may be reviewed by local housing authorities.

Suppose that you are a tenant who participates in the Section 8 housing voucher program. While the lease is in effect, the landlord must have good cause to terminate (end) the tenancy. Examples of good cause include serious or repeated violations of the lease, or criminal activity that threatens the health or safety of other residents.207 However, incidents of domestic violence may not be used as a violation by the victim or threatened victim as good cause for the landlord to terminate the tenancy, occupancy rights or assistance of the victim.208

The landlord must give the tenant a three-day or 30-day or 60-day notice of termination under California law (see “Written Notices of Terminations“), and both the landlord and the tenant must give the public housing agency a copy of the notice.209 What if the landlord simply decides not to renew the lease, or decides to terminate the HAP (housing assistance payment) contract? In this case, the landlord must give the tenant 90 days’ advance written notice of the termination date.210 If the tenant doesn’t move out by the end of the 90 days, the landlord must follow California law to evict the tenant.211

If you live in government-assisted housing or in an area with rent control, check with your local housing officials to see if any special rules apply in your situation.

ADVANCE PAYMENT OF LAST MONTH’S RENT

Many landlords require tenants to pay “last month’s rent” at the beginning of the tenancy as part of the security deposit or at the time the security deposit is paid. Whether the tenant can use this amount at the end of the tenancy to pay the last month’s rent depends on the language used in the rental agreement or lease.212

Suppose that at the beginning of the tenancy, you gave the landlord a payment for the last month’s rent and for the security deposit, and that the lease or rental agreement labels part of this up front payment “last month’s rent.” In this situation, you have paid the rent for your last month in the rental unit. However, sometimes landlords raise the rent before the last month’s rent becomes due. In this situation, can the landlord require you to pay the amount of the increase for the last month?

The law does not provide a clear answer to this question. If your lease or rental agreement labels part of your up front payment “last month’s rent,” then you have a strong argument that you paid the last month’s rent when you moved in. In this situation, the landlord should not be able to require you to pay the amount of the increase for the last month.213 However, if your lease or rental agreement labels part of your up front payment “security for last month’s rent,” then the landlord has a good argument that you have not actually paid the last month’s rent, but have only provided security for it. In this situation, the landlord could require you to pay the amount of the increase for the last month.

For example, say that your rental agreement labeled part of the total deposit that you paid when you moved in “security for last month’s rent,” or that “last month’s rent” is one of the items listed in your rental agreement under the heading “Security.” Suppose that your rent was $500 when you moved in and that you paid your landlord $500 as “;security for the last month’s rent.” Suppose that you also paid your landlord an additional $500 as a security deposit. If the landlord properly raised your rent to $550 while you were living in the rental unit, you can expect to owe the landlord $50 for rent during the last month of your tenancy (that is, the current rent [$550] minus the prepaid amount [$500] equals $50 owed).

If your rental agreement calls your entire up front payment a “security deposit” and does not label any part of it “last month’s rent,” or “security for last month’s rent,” then you will have to pay the last month’s rent when it comes due. In this situation, you cannot use part of your security deposit to pay the last month’s rent. However, you will be entitled to a refund of your security deposit, as explained in the next section.

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14Jan

Having Repairs Made

Posted by: admin Categories: General
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If a tenant believes that his or her rental unit needs repairs, and that the landlord is responsible for the repairs under the implied warranty of habitability, the tenant should notify the landlord. Since rental units typically are business investments for landlords, most landlords want to keep them safe, clean, attractive, and in good repair.

It’s best for the tenant to notify the landlord of damage or defects by both a telephone call and a letter. The tenant should specifically describe the damage or defects and the required repairs in both the phone call and the letter. The tenant should date the letter and keep a copy to show that notice was given and what it said. If the tenant gives notice to the landlord by e-mail or fax, the tenant should follow up with a letter. (See “Giving the landlord notice“.)

The tenant should send the letter to the landlord, manager, or agent by certified mail with return receipt requested. Sending the notice by certified mail is not required by law, but is a very good idea. Or, the tenant (or a friend) may personally deliver the notice to the landlord, manager, or agent and ask for a receipt to show that the notice was received. The tenant should keep a copy of the notice and the receipt, or some other evidence that the notice was delivered. (See “Giving the landlord notice“.)

If the landlord doesn’t make the requested repairs, and doesn’t have a good reason for not doing so, the tenant may have one of several remedies, depending on the seriousness of the repairs. These remedies are discussed in the rest of this section. Each of these remedies has its own risks and requirements, so the tenant should use them carefully.

The “repair and deduct” remedy

The “repair and deduct” remedy allows a tenant to deduct money from the rent, up to the amount of one month’s rent, to pay for repair of defects in the rental unit.156 This remedy covers substandard conditions that affect the tenant’s health and safety, and that substantially breach the implied warranty of habitability.157 (See discussion of the implied warranty of habitability.) Examples might include a leak in the roof during the rainy season, no hot running water, or a gas leak.

As a practical matter, the repair and deduct remedy allows a tenant to make needed repairs of serious conditions without filing a lawsuit against the landlord. Because this remedy involves legal technicalities, it’s a good idea for the tenant to talk to a lawyer, legal aid organization, or tenants’ association before proceeding.

The basic requirements and steps for using the repair and deduct remedy are as follows:

  1. 1. The defects must be serious and directly related to the tenant’s health and safety.158
  2. 2. The repairs cannot cost more than one month’s rent.
  3. 3. The tenant cannot use the repair and deduct remedy more than twice in any 12-month period.
  4. 4. The tenant or the tenant’s family, guests, or pets must not have caused the defects that require repair.
  5. 5. The tenant must inform the landlord, either orally or in writing, of the repairs that are needed. (See “Giving the landlord notice“.)
  6. 6. The tenant must give the landlord a reasonable period of time to make the needed repairs.
  • What is a reasonable period of time? This depends on the defects and the types of repairs that are needed. The law usually considers 30 days to be reasonable, but a shorter period may be considered reasonable, depending on the situation. For example, if the furnace is broken and it’s very cold outdoors, two days may be considered reasonable (assuming that a qualified repair person is available within that time period).
  1. 7. If the landlord doesn’t make the repairs within a reasonable period of time, the tenant may either make the repairs or hire someone to do them. The tenant may then deduct the cost of the repairs from the rent when it is due. The tenant should keep all receipts for the repairs.
  • It’s a good idea, but not a legal requirement, for the tenant to give the landlord a written notice that explains why the tenant hasn’t paid the full amount of the rent. The tenant should keep a copy of this notice.

Risks: The defects may not be serious enough to justify using the repair and deduct remedy. In that event, the landlord can sue the tenant to recover the money deducted from the rent, or can file an eviction action based on the nonpayment of rent. If the tenant deducted money for repairs not covered by the remedy, or didn’t give the landlord proper advance notice or a reasonable time to make repairs, the court can order the tenant to pay the full rent even though the tenant paid for the repairs, or can order that the eviction proceed.

The landlord may try to evict the tenant or raise the rent because the tenant used the repair and deduct remedy. This kind of action is known as a “retaliatory eviction” (see section on Retaliatory Eviction). The law prohibits this type of eviction, with some limitations.159

The “abandonment” remedy

Instead of using the repair and deduct remedy, a tenant can abandon (move out of) a defective rental unit. This remedy is called the” abandonment” remedy. A tenant might use the abandonment remedy where the defects would cost more than one month’s rent to repair,160 but this is not a requirement of the remedy. The abandonment remedy has most of the same requirements and basic steps as the repair and deduct remedy.161

In order to use the abandonment remedy, the rental unit must have substandard conditions that affect the tenant’s health and safety, and that substantially breach the implied warranty of habitability.162 (See discussion of the implied warranty of habitability.) If the tenant uses this remedy properly, the tenant is not responsible for paying further rent once he or she has abandoned the rental unit.163

The basic requirements and steps for lawfully abandoning a rental unit are:

  1. 1. The defects must be serious and directly related to the tenant’s health and safety.164
  2. 2. The tenant or the tenant’s family, guests, or pets must not have caused the defects that require repair.
  3. 3. The tenant must inform the landlord, either orally or in writing, of the repairs that are needed. (See “Giving the landlord notice,” below).
  4. 4. The tenant must give the landlord a reasonable period of time to make the needed repairs.
  • What is a reasonable period of time? This depends on the defects and the types of repairs that are needed. The law usually considers 30 days to be reasonable, but a shorter period may be considered reasonable, depending on the circumstances. For example, if tree roots block the main sewer drain and none of the toilets or drains work, a reasonable period might be as little as one or two days.
  1. 5. If the landlord doesn’t make the repairs within a reasonable period of time, the tenant should notify the landlord in writing of the tenant’s reasons for moving and then actually move out. The tenant should return all the rental unit’s keys to the landlord. The notice should be mailed or delivered as explained in “Giving the landlord notice” below. The tenant should keep a copy of the notice.
  • It’s a good idea, but not a legal requirement, for the tenant to give the landlord written notice of the tenant’s reasons for moving out. The tenant’s letter may discourage the landlord from suing the tenant to collect additional rent or other damages. A written notice also documents the tenant’s reasons for moving, which may be helpful in the event of a later lawsuit. If possible, the tenant should take photographs or a video of the defective conditions or have local health or building officials inspect the rental unit before moving. The tenant should keep a copy of the written notice and any inspection reports and photographs or videos.

Risks: The defects may not affect the tenant’s health and safety seriously enough to justify using the remedy. The landlord may sue the tenant to collect additional rent or damages.

The “rent withholding” remedy

A tenant may have another option for getting repairs made – the “rent withholding” remedy.

By law, a tenant is allowed to withhold (stop paying) some or all of the rent if the landlord does not fix serious defects that violate the implied warranty of habitability.165 (See discussion of the implied warranty of habitability.) In order for the tenant to withhold rent, the defects or repairs that are needed must be more serious than would justify use of the repair and deduct and abandonment remedies. The defects must be substantial – they must be serious ones that threaten the tenant’s health or safety.166

The defects that were serious enough to justify withholding rent in Green v. Superior Court167 are listed below as examples:

  • Collapse and nonrepair of the bathroom ceiling.
  • Continued presence of rats, mice, and cockroaches.
  • Lack of any heat in four of the apartment’s rooms.
  • Plumbing blockages.
  • Exposed and faulty wiring.
  • An illegally installed and dangerous stove.

In the Green case, all of these defects were present, and there also were many violations of the local housing and building codes. In other situations, the defects that would justify rent withholding may be different, but the defects would still have to be serious ones that threaten the tenant’s health or safety.

In order to prove a violation of the implied warranty of habitability, the tenant will need evidence of the defects that require repair. In the event of a court action, it is helpful to have photographs or videos, witnesses, and copies of letters informing the landlord of the problem.

Before the tenant withholds rent, it is a good idea to check with a legal aid organization, lawyer, housing clinic, or tenant program to help determine if rent withholding is the appropriate remedy.

The basic requirements and steps for using the rent withholding remedy are:

  1. 1. The defects or the repairs that are needed must threaten the tenant’s health or safety.168
  • The The defects must be serious enough to make the rental unit uninhabitable. For example, see the defects described in the discussion of the Green case above.
  1. 2. The tenant, or the tenant’s family, guests, or pets must not have caused the defects that require repair.
  2. 3. The tenant must inform the landlord either orally or in writing of the repairs that are needed. (See “Giving the landlord notice,” below).
  3. 4. The tenant must give the landlord a reasonable period of time to make the repairs.
  • What is a reasonable period of time? This depends on the defects and the type of repairs that are needed.
  1. 5. If the the landlord doesn’t make the repairs within a reasonable period of time, the tenant can withhold some or all of the rent. The tenant can continue to withhold the rent until the landlord makes the repairs.
  • How much rent can the tenant withhold? While the law does not provide a clear test for determining how much rent is reasonable for the tenant to withhold, judges in rent withholding cases often use one of the following methods. These methods are offered as examples.

Percentage reduction in rent: The percentage of the rental unit that is uninhabitable is determined, and the rent is reduced by that amount. For example, if one of a rental unit’s four rooms is uninhabitable, the tenant could withhold 25 percent of the rent. The tenant would have to pay the remaining 75 percent of the rent. Most courts use this method.

Reasonable value of rental unit: The value of the rental unit in its defective state is determined, and the tenant withholds that amount. The tenant would have to pay the difference between the rental unit’s fair market value (usually the rent stated in the rental agreement or lease) and the rental unit’s value in its defective state.169

  1. 6. The tenant should save the withheld rent money and not spend it. The tenant should expect to have to pay the landlord some or all of the withheld rent.
  • If the tenant withholds rent, the tenant should put the withheld rent money into a special bank account (called an escrow account). The tenant should notify the landlord in writing that the withheld rent money has been deposited in the escrow account, and explain why.

Depositing the withheld rent money in an escrow account is not required by law, but is a very good thing to do for three reasons.

First, as explained under “Risks” below, rent withholding cases often wind up in court. The judge usually will require the tenant to pay the landlord some reduced rent based on the value of the rental unit with all of its defects. Judges rarely excuse payment of all rent. Depositing the withheld rent money in an escrow account assures that the tenant will have the money to pay any “reasonable rent” that the court orders. The tenant will have to pay the rent ordered by the court five days (or less) from the date of the court’s judgment.

Second, putting the withheld rent money in an escrow account proves to the court that the tenant didn’t withhold rent just to avoid paying rent. If there is a court hearing, the tenant should bring rental receipts or other evidence to show that he or she has been reliable in paying rent in the past.

Third, most legal aid organizations and lawyers will not represent a tenant who has not deposited the withheld rent money in an escrow account.

Sometimes, the tenant and the landlord will be able to agree on the amount of rent that is reasonable for the time when the rental unit needed repairs. If the tenant and the landlord can’t agree on a reasonable amount, the dispute will have to be decided in court, or resolved in an arbitration or mediation proceeding (see section on Arbitration and Mediation).

Risks: The defects may not be serious enough to threaten the tenant’s health or safety. If the tenant withholds rent, the landlord may give the tenant an eviction notice (a three-day notice to pay the rent or leave). If the tenant refuses to pay, the landlord will probably go to court to evict the tenant. In the court action, the tenant will have to prove that the landlord violated the implied warranty of habitability.170

If the tenant wins the case, the landlord will be ordered to make the repairs, and the tenant will be ordered to pay a reasonable rent. The rent ordinarily must be paid five days or less from the date of the court’s judgment. If the tenant wins, but doesn’t pay the amount of rent ordered when it is due, the judge will enter a judgment for the landlord, and the tenant probably will be evicted. If the tenant loses, he or she will have to pay the rent, probably will be evicted, and may be ordered to pay the landlord’s attorney’s fees.

There is another risk of using rent withholding: if the tenant doesn’t have a lease, the landlord may ignore the tenant’s notice of defective conditions and seek to remove the tenant by giving him or her a 30-day or 60-day notice to move. This may amount to a “retaliatory eviction” (see section on Retaliatory Actions, Evictions and Discrimination).171 The law prohibits retaliatory evictions, with some limitations.172

Giving the landlord notice

Whenever a tenant gives the landlord notice of the tenant’s intention to repair and deduct, withhold rent, or abandon the rental unit, it’s best to put the notice in writing. The notice should be in the form of a letter, and can be typed or handwritten. The letter should describe in detail the problem and the repairs that are required. The tenant should sign and date the letter and keep a copy.173

The tenant might be tempted to send the notice to the landlord by e-mail or fax. The laws on repairs specify that the tenant may give the landlord notice orally or in writing, but do not mention e-mail or fax. To be certain that the notice complies with the law, the tenant should follow up any e-mailed or faxed notice with a letter describing the damage or defects and the required repairs.

The letter should be sent to the landlord, manager, or agent by certified mail (return receipt requested). Sending the letter by certified mail is not required by law, but is a very good idea. Or, the tenant (or a friend) may personally deliver the notice to the landlord, manager, or agent. The tenant should ask for a signed and dated receipt showing that the notice was received, or ask the landlord to date and sign (or initial) the tenant’s copy of the letter to show that the landlord received the notice. Whatever the method of delivery, it’s important that the tenant have proof that the landlord, or the landlord’s manager or agent, received the notice.

The copy of the letter and the receipt will be proof that the tenant notified the landlord, and also proof of what the notice said. Keep the copy of the letter and the receipt in case of a dispute with the landlord.

The landlord or agent may call the tenant to discuss the request for repairs or to schedule a time to make them. It’s a good idea for the tenant to keep notes of any conversations and phone calls about the request for repairs. During each conversation or immediately after it, the tenant should write down the date and time of the conversation, what both parties said, and the date and time that the tenant made the notes. Important: Neither the tenant nor the landlord can tape record a telephone conversation without the other party’s permission174

Tenant information

An occupant of residential property can invite another person onto the property during reasonable hours, or because of emergency circumstances, to provide information about tenants’ rights or to participate in a tenants’ association or an association that advocates tenants’ rights. The invited person cannot be held liable for trespass.175

Lawsuit for damages as a remedy

The remedies of repair and deduct, abandonment, and rent withholding allow a tenant in a rental unit with serious habitability defects to take action against the landlord without filing a lawsuit. Arbitration and mediation are other methods of resolving disputes about the condition of a rental unit (see section on Arbitration and Mediation).

A tenant has another option: filing a lawsuit against the landlord to recover money damages if the landlord does not repair serious defects in the rental unit in a timely manner.176 This kind of lawsuit can be filed in small claims court or Superior Court, depending on the amount demanded in the suit.177 The tenant can file this kind of lawsuit without first trying another remedy, such as the repair and deduct remedy.

If the tenant wins the lawsuit, the court may award the tenant his or her actual damages, plus “special damages” in an amount ranging from $100 to $5,000.178 “Special damages” are costs that the tenant incurs, such as the cost of a motel room, because the landlord did not repair defects in the rental unit. The party who wins the lawsuit is entitled to recover his or her costs of bringing the suit (for example, court costs), plus reasonable attorney’s fees as awarded by the court.179

The court also may order the landlord to abate (stop or eliminate) a nuisance and to repair any substandard condition that significantly affects the health and safety of the tenant.180 For example, a court could order the landlord to repair a leaky roof, and could retain jurisdiction over the case until the roof is fixed.

In order for a tenant to win such a lawsuit against the landlord, all of the following conditions must be met.181

  • The rental unit has a serious habitability defect. That is, the rental unit contains a lead hazard that endangers the occupants or the public; or substantially lacks any of the a nuisance endangers the health, life, safety, property, or welfare of the occupants or the public; and
  • A housing inspector has inspected the the minimum requirements for habitability listed in the eight categories (see Conditions that make a rental unit legally uninhabitable); or has been declared substandard because, for example, a structural hazard, inadequate sanitation, or premises and has given the landlord or the landlord’s agent written notice of the landlord’s obligation to repair the substandard conditions or abate the nuisance; and
  • The nuisance or substandard conditions continue to exist 35 days after the housing inspector mailed the notice to the landlord or agent, and the landlord does not have good cause for failing to make the repairs; and
  • The nuisance or substandard conditions were not caused by the tenant or the tenant’s family, guests, or pets; and
  • The landlord collects or demands rent, issues a notice of rent increase, or issues a three-day notice to pay rent or quit (see Written Notices of Terminations) after all of the above conditions have been met.

To prepare for filing this kind of lawsuit, the tenant should take all of these basic steps:

  • The tenant should notify the landlord in writing about the conditions that require repair. (See “Giving the landlord notice“.) The rental unit must have serious habitability defects that were not caused by the tenant’s family, guests, or pets.
  • The notice should specifically describe the defects and the repairs that are required.
  • The notice should give the landlord a reasonable period of time to make the repairs.
  • If the landlord doesn’t make the repairs within a reasonable time, the tenant should contact the local city or county building department, health department, or local housing agency and request an inspection.
  • The housing inspector must inspect the rental unit.
  • The housing inspector must give the landlord or the landlord’s agent written notice of the repairs that are required.
  • The substandard conditions must continue to exist 35 days after the housing inspector mailed the notice to the landlord or landlord’s agent. The landlord then must collect or demand rent, raise the rent, or serve a three-day notice to pay rent or quit.
  • The tenant should gather evidence of the substandard conditions (for example, photographs or videos, statements of witnesses, inspection reports) so that the tenant can prove his or her case in court.
  • The tenant should discuss the case with a lawyer, legal aid organization, tenant program, or housing clinic in order to understand what the lawsuit is likely to accomplish, and also the risks involved.182

Resolving complaints out of court

Before filing suit, the tenant should try to resolve the dispute out of court, either through personal negotiation or a dispute resolution program that offers mediation or arbitration of landlord-tenant disputes. If the tenant and the landlord agree, a neutral person can work with both of them to reach a solution. Informal dispute resolution can be inexpensive and fast. (See “Arbitration and Mediation“.) See “Giving the landlord notice” regarding legal requirements for notices.

LANDLORD’S SALE OF THE RENTAL UNIT

If your landlord voluntarily sells the rental unit that you live in, your legal rights as a tenant are not changed. Tenants who have a lease have the right to remain through the end of the lease under the same terms and conditions. The new landlord can end a periodic tenancy (for example, a month-to-month tenancy), but only after giving the tenant the required advance notice. (See “Landlord’s notice to end a periodic tenancy“.)

The sale of the building doesn’t change the rights of the tenants to have their security deposits refunded when they move. The section on Refund of Security Deposits discuss the landlord’s responsibility for the tenants’ security deposits after the rental unit has been sold.

When property is sold in foreclosure

State law provides that a tenant in possession of a rental housing unit at the time a property is sold in foreclosure shall be given 60 days’ written notice to quit before the tenant may be removed from the property.183 However, if your lease was signed before the deed of trust or mortgage was recorded, your lease will not be set aside by the foreclosure.184

Federal law now requires that you be given 90 days’ written notice to quit (leave the property). under the 2009 “protecting tenants at Foreclosure Act,” a buyer of foreclosed property must honor your lease until the end of the lease term, unless the buyer will be moving in and using the property as the buyer’s home.184.1 In that case, you are entitled to 90 days’ notice to quit.184.2 This is also true if you are a month-to-month tenant. the Act creates similar protections for tenants with section 8 vouchers. this rule does not apply to rental agreements that were not the result of arm’s length transactions or where the rent is much less than fair market rent for that property.184.3

California recognizes that tenants of units sold in foreclosure now have a right to this 90-day notice under federal law. specifically, any notice to quit served within one year after a foreclosure sale must also inform renters that they may stay in the unit for at least 90-days.184.4

CONDOMINIUM CONVERSIONS

A landlord who wishes to convert rental property into condominiums must obtain approval from the local city or county planning agency. The landlord also must receive final approval in the form of a public report issued by the State Department of Real Estate. Affected tenants must receive notices at various stages of the application and approval process.185 These notices are designed to allow affected tenants and the public to have a voice in the approval process.186 Tenants can check with local elected officials or housing agencies about the approval process and opportunities for public input.

Perhaps most important, affected tenants must be given written notice of the conversion to condominiums at least 180 days before their tenancies end due to the conversion.187 Affected tenants also must be given a first option to buy the rental unit on the same terms that are being offered to the general public (or better terms). The tenants must be able to exercise this right for at least 90 days following issuance of the Department of Real Estate’s public report.188

DEMOLITION OF DWELLING

The owner of a dwelling must give written notice to current tenants before applying for a permit to demolish the dwelling. The owner also must give this notice to tenants who have signed rental agreements but who have not yet moved in. (See “When You Have Decided to Rent, Condominium Conversion Project” section.) The notice must include the earliest approximate dates that the owner expects the demolition to occur and the tenancy to end.189

INFLUENCING THE TENANT TO MOVE

California law protects a tenant from retaliation by the landlord because the tenant has lawfully exercised a tenant right (see Retaliatory Actions). California law also makes it unlawful for a landlord to attempt to influence a tenant to move by doing any of the following:

  • Engaging in conduct that constitutes theft or extortion.
  • Using threats, force, or menacing conduct that interferes with the tenant’s quiet enjoyment of the rental unit. (The conduct must be of a nature that would create the fear of harm in a reasonable person.)
  • Committing a significant and intentional violation of the rules limiting the landlord’s right to enter the rental unit (see When Can the Landlord Enter the Rental Unit?).190

A landlord does not violate the law by giving a tenant a warning notice, in good faith, that the tenant’s or a guest’s conduct may violate the lease, rental agreement, rules or laws. The notice may be oral or in writing. The law also allows a landlord to give a tenant an oral or written explanation of the lease, rental agreement, rules or laws in the normal course of business.191

If a landlord engages in unlawful behavior as described above, the tenant may sue the landlord in small claims court or Superior Court. If the tenant prevails, the court may award him or her a civil penalty of up to $2,000 for each violation.192 Keep in mind, however, that a lawsuit is not always a good solution. If you are faced with actions such as described above, try to assess the situation realistically. You may want to discuss the situation with a trusted friend, a tenant advisor, or a lawyer who represents tenants. If you are convinced that you cannot work things out with the landlord, then consider your legal remedies.

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14Jan

Dealing With Problems

Posted by: admin Categories: Landlords Tenants
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Most landlord-tenant relationships go smoothly. However, problems sometimes do arise. For example, what if the rental unit’s furnace goes out in the middle of the winter? What happens if the landlord sells the building or decides to convert it into condominiums? This section discusses these and other possible issues and problems in the landlord-tenant relationship.

REPAIRS AND HABITABILITY

A rental unit must be fit to live in; that is, it must be habitable. In legal terms, “habitable” means that the rental unit is fit for occupation by human beings and that it substantially complies with state and local building and health codes that materially affect tenants’ health and safety.129

California law makes landlords and tenants each responsible for certain kinds of repairs, although landlords ultimately are legally responsible for assuring that their rental units are habitable.

Landlord’s responsibility for repairs

Before renting a rental unit to a tenant, a landlord must make the unit fit to live in, or habitable. Additionally, while the unit is being rented, the landlord must repair problems that make the rental unit unfit to live in, or uninhabitable.

The landlord has this duty to repair because of a California Supreme Court case, called Green v. Superior Court,130 which held that all residential leases and rental agreements contain an implied warranty of habitability. Under the “implied warranty of habitability,” the landlord is legally responsible for repairing conditions that seriously affect the rental unit’s habitability.131 That is, the landlord must repair substantial defects in the rental unit and substantial failures to comply with state and local building and health codes.132 However, the landlord is not responsible under the implied warranty of habitability for repairing damages that were caused by the tenant or the tenant’s family, guests, or pets.133

Generally, the landlord also must do maintenance work which is necessary to keep the rental unit liveable.134 Whether the landlord or the tenant is responsible for making less serious repairs is usually determined by the rental agreement.

The law is very specific as to what kinds of conditions make a rental uninhabitable. These are discussed below.

Tenant’s responsibility for repairs

Tenants are required by law to take reasonable care of their rental units, as well as common areas such as hallways and outside areas. Tenants must act to keep those areas clean and undamaged. Tenants also are responsible for repair of all damage that results from their neglect or abuse, and for repair of damage caused by anyone for whom they are responsible, such as family, guests, or pets.135 Tenants’ responsibilities for care and repair of the rental unit are discussed in detail below.

Conditions that make a rental unit legally uninhabitable

There are many kinds of defects that could make a rental unit unlivable. The implied warranty of habitability requires landlords to maintain their rental units in a condition fit for the “occupation of human beings. “136 In addition, the rental unit must “substantially comply” with building and housing code standards that materially affect tenants’ health and safety.137

A rental unit may be considered uninhabitable (unlivable) if it contains a lead hazard that endangers the occupants or the public, or is a substandard building because, for example, a structural hazard, inadequate sanitation, or a nuisance endangers the health, life, safety, property, or welfare of the occupants or the public.138

A dwelling also may be considered uninhabitable (unlivable) if it substantially lacks any of the following:139

  • Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
  • Plumbing facilities in good working order, including hot and cold running water, connected to a sewage disposal system.
  • Gas facilities in good working order.
  • Heating facilities in good working order.
  • An electric system, including lighting, wiring, and equipment, in good working order.
  • Clean and sanitary buildings, grounds, and appurtenances (for example, a garden or a detached garage), free from debris, filth, rubbish, garbage, rodents, and vermin.
  • Adequate trash receptacles in good repair.
  • Floors, stairways, and railings in good repair.

In addition to these requirements, each rental unit must have all of the following:

  • A working toilet, wash basin, and bathtub or shower. The toilet and bathtub or shower must be in a room which is ventilated and allows privacy.
  • A kitchen with a sink that cannot be made of an absorbent material such as wood.
  • Natural lighting in every room through windows or skylights. Windows in each room must be able to open at least halfway for ventilation, unless a fan provides mechanical ventilation.
  • Safe fire or emergency exits leading to a street or hallway. Stairs, hallways, and exits must be kept litter-free. Storage areas, garages, and basements must be kept free of combustible materials.140
  • Operable dead bolt locks on the main entry doors of rental units, and operable locking or security devices on windows.141
  • Working smoke detectors in all units of multi-unit buildings, such as duplexes and apartment complexes. Apartment complexes also must have smoke detectors in common stairwells.142
  • A locking mail box for each unit. The mail box must be consistent with the United States Postal Service standards for apartment housing mail boxes.143
  • Ground fault circuit interrupters for swimming pools and antisuction protections for wading pools in apartment complexes and other residential settings (but not single family residences).144

The implied warranty of habitability is not violated merely because the rental unit is not in perfect, aesthetically pleasing condition. Nor is the implied warranty of habitability violated if there are minor housing code violations, which, standing alone, do not affect habitability.145

While it is the landlord’s responsibility to install and maintain the inside wiring for one telephone jack, it is unclear whether the landlord’s failure to do so is a breach of the implied warranty of habitability.146

An authoritative reference book suggests two additional ways in which the implied warranty of habitability may be violated. The first is the presence of mold conditions in the rental unit that affect the livability of the unit or the health and safety of tenants. The second follows from a new law that imposes obligations on a property owner who is notified by a local health officer that the property is contaminated by methamphetamine. (See When You Have Decided to Rent, Methamphetamine Contamination.) This reference book suggests that a tenant who is damaged by this kind of documented contamination may be able to claim a breach of the implied warranty of habitability.147

Limitations on landlord’s duty to keep the rental unit habitable

Even if a rental unit is unlivable because of one of the conditions listed above, a landlord may not be legally required to repair the condition if the tenant has not fulfilled the tenant’s own responsibilities.

In addition to generally requiring a tenant to take reasonable care of the rental unit and common areas (see above), the law lists specific things that a tenant must do to keep the rental unit liveable.

Tenants must do all of the following

  • Keep the premises “as clean and sanitary as the condition of the premises permits.”
  • Use and operate gas, electrical, and plumbing fixtures properly. (Examples of improper use include overloading electrical outlets; flushing large, foreign objects down the toilet; and allowing any gas, electrical, or plumbing fixture to become filthy.)
  • Dispose of trash and garbage in a clean and sanitary manner.
  • Not destroy, damage, or deface the premises, or allow anyone else to do so.
  • Not remove any part of the structure, dwelling unit, facilities, equipment, or appurtenances, or allow anyone else to do so.
  • Use the premises as a place to live, and use the rooms for their intended purposes. For example, the bedroom must be used as a bedroom, and not as a kitchen.148
  • Notify the landlord when dead bolt locks and window locks or security devices don’t operate properly.149

However, a landlord may agree in writing to clean the rental unit and dispose of the trash.150

If a tenant violates these requirements in some minor way, the landlord is still responsible for providing a habitable dwelling, and may be prosecuted for violating housing code standards. If the tenant fails to do one of these required things, and the tenant’s failure has either substantially caused an unlivable condition to occur or has substantially interfered with the landlord’s ability to repair the condition, the landlord does not have to repair the condition.151 However, a tenant cannot withhold rent or has no action against the landlord for violating the implied warranty of habitability if the tenant has failed to meet these requirements.152

Responsibility for other kinds of repairs

As for less serious repairs, the rental agreement or lease may require either the tenant or the landlord to fix a particular item. Items covered by such an agreement might include refrigerators, washing machines, parking places, or swimming pools. These items are usually considered “amenities,” and their absence does not make a dwelling unit unfit for living.

These agreements to repair are usually enforceable in accordance with the intent of the parties to the rental agreement or lease.153

Tenant’s agreement to make repairs

The landlord and the tenant may agree in the rental agreement or lease that the tenant will perform all repairs and maintenance in exchange for lower rent.154 Such an agreement must be made in good faith: there must be a real reduction in the rent, and the tenant must intend and be able to make all the necessary repairs. When negotiating the agreement, the tenant should consider whether he or she wants to try to negotiate a cap on the amount that he or she can be required to spend making repairs. Regardless of any such agreement, the landlord is responsible for maintaining the property as required by state and local housing codes.155

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14Jan

Living In The Rental Unit

Posted by: admin Categories: Landlords Tenants
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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

Posted by: admin Categories: Tenants
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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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