Additional information is provided to assist you
in finding other legal resources on the Internet, i.e.,
Landlord.com Landlord Law Links California
www.findlaw.com
www.lawguru.com
www.nolo.com
1. Creation of Tenancy, Rents and Rental Agreements
The following applies to
California residential lease and rental agreements only, but not to agreements for
transient accommodations such as hotels and motels.
A tenancy is created by the rental
agreement. The rental agreement may be either oral or in writing express or implied, for a
fixed term or on a periodic basis, such as month to month or week to week. If for a fixed
term of more than one year, the lease must be in writing.
The written agreement should
identify the parties, (the landlord must provide the tenant with his name and address or
that of someone who is authorized to accept legal documents for him) {Civil Code Sec.
1943}, describe the property, specify the rent, state the rental period, starting date and
rent due dates, late charges for rent, if any, be dated and signed by all.
A landlord may not evict a tenant
for breach of a lease provision other than failure to pay rent unless the provision
breached is in a writing signed by the tenant. Therefore, if there are any restrictions,
such as a no pet clause, no subletting, late charges, etc., these should be in a writing
signed by the tenant.
The amount of rent is left to
the agreement of the parties and is based upon market conditions, except in certain rent
control cities; Berkeley, Beverly Hills, Cotati, East Palo Alto, Hayward, Los Angeles, Los
Gatos, Oakland, Palm Springs, San Francisco, San Jose, Santa Monica, Thousand Oaks and
West Hollywood.
Rent is presumed to come due at the
conclusion of the term, not at the beginning {Civil Code Sec. 1947} In other words, in a
month to month rental agreement, the rent for June would be due on June 30. If you want
the rent due on the first of each month in advance, you need to have an explicit agreement
with the tenant to that effect. If the rent due date falls due on a holiday, Saturday or
Sunday, then the tenant has until midnight the next business day to pay {Civil Code Sec.
12a and 12b}.
Late charge provisions should be
in writing and are valid only if they are reasonably calculated to compensate the landlord
for the cost of accepting and processing late payments. Late charges designed to deter the
tenant from late payment are generally deemed inappropriate. Late charges of between 5 -
10% are generally held to be valid. Some rent control cities limit amounts that can be
levied.
The term of the rental agreement is
presumed to be month to month, and you must specify a different term in your agreement
(written or oral), if it is to be otherwise {Civil Code Sec. 1943}.
The terms of a periodic tenancy (i.e.,
month to month, bi-monthly, week to week, etc.) may be changed by the landlord
by written notice delivered at least as long before it takes effect as the
term of the hiring itself.
Such a
notice may be delivered by personal delivery, substituted service and mailing,
or posting and mailing depending on whether the tenant is at the residence or
his usual place of business at the time.
{Civil Code Sec. 827}
Notices increasing rent are now a
special case.
All notices of rent
increase may now be served by first class mail in addition to the ways
mentioned in the previous paragraph, but if served this way, the notice period
is extended by five days beyond the time frames given below.
If the notice results in an increase of 10% or less cumulatively for
the previous 12 months, then the notice period is 30 days.
If the notice results in an increase of more than 10% cumulatively over
the previous 12 months, then the notice period is sixty days.
{Civil Code Sec. 827}
The landlord may charge a
non-refundable screening fee equal to his actual out of pocket cost, not to exceed $30 per
applicant who is entitled to a copy of any credit report generated included in the charge.
The parties are also competent to contract for the tenant to prepay not less than six
months' rent arising out of a lease which is for an initial term of not less than six
months { Code of Civil Procedure Sec. 1950.6}
At the conclusion of a fixed term
lease, if the tenant remains in possession and continues to pay rent, the tenancy is
presumed to be renewed on a month to month basis, with all the terms of the original lease
intact {Civil Code Sec. 1945}. Otherwise, the landlord is entitled to possession at the
conclusion of the term and may bring eviction proceedings if the tenant fails to move out
{Civil Code of Procedure Sec. 1161}.
The law prohibits certain lease
provisions. These prohibited items are listed at {Civil Code Sec. 1953}.
Some local city rent control
ordinances require certain provisions, or permit others which may be of value to the
landlord. For example, the City of Palo Alto, has a non-rent control ordinance that
requires each tenant be offered a one year lease. You should contact your local rent
control board and obtain a copy of the ordinance and any supporting materials which will
enable you to understand your local ordinance.
A landlord you may require a
co-signer to guarantee the performance of any written rental or lease agreement or lease.
This guarantee must be in writing {Civil Code Sec. 2819}.
The landlord is required to hire an
on-site resident manager for an apartment building of 16 or more units {Cal. Code of
Regulations, Title 25, Sec. 42} .
Back To Top
2.
Security Deposits
There is no longer a formal
distinction among tenant deposits, i.e., security, cleaning, last month rent, pet, key,
waterbed deposits, etc. California recognizes only a unitary security deposit. This is
defined as any advance payment to the landlord to be used to remedy defaults in rent
payments, repair of damage to the premises exclusive of normal wear and tear, cleaning
upon vacation by the tenant, or to restore damage to specified landlord personal property
in the custody of the tenant where the rental agreement so provides. Landlords may not
charge any non-refundable deposits or "fees" {Civil Code Sec. 1950.5}.
The statute implies, but does not
explicitly require, that this deposit be held separate by the landlord. Payment of
interest is not required by State law, but several local jurisdictions do require it.
Landlords who own rentals in Berkeley, Cotati, East Palo Alto, Hayward, Los Angeles, San
Francisco, Santa Cruz, Santa Monica, Watsonville and West Hollywood must pay interest to
tenants on deposits. Call the applicable rent board, city clerk or apartment association
for further information or requirements.
The security deposit may not exceed
three months' rent if the premises are rented furnished, two months rent if they are
rented unfurnished. An amount equal to an extra one-half months rent if the tenant has a
waterbed {Civil Code Sec. 1950.5}.
Within three weeks (21 days) of the
date the tenant vacates the landlord must provide an accounting of any charges to the
deposit in writing. The landlord may not charge for repairs, cleaning, etc., above and
beyond reasonable wear and tear. The accounting may be mailed to the tenant's last known
address together with any refund due. Failure to do this in bad faith subjects the
landlord to any actual damage suffered by the tenant, as determined by the court, plus
statutory damages of up to $600 {Civil Code Sec. 1950.5}.
When the landlord sells the
property, before title passes, he must elect to refund any unused portions of tenant
deposits to the tenants, with an accounting similar to the one mentioned above, or to
transfer the unused portions of such deposits to the new owner through escrow, together
with such accounting. Failure to do so subjects the new owner to joint and several
liability with the old owner to any aggrieved tenants for damages {Civil Code Sec.
1950.5}.
Back To Top
3.
Discrimination
California residential landlords are
considered to be businesses within the meaning of the anti-discrimination statutes and are
bound by them according to their terms.
All persons in the state are deemed
to be equal and entitled to equal accommodations, advantages, etc., despite their sex,
race, color, religion, ancestry, national origin or disability {Civil Code Sec. 51} Age
discrimination is specifically prohibited {Civil. Code Sec. 51.2}, although senior housing
is permissible {Civil. Code Sec. 51.3}.
Landlords are liable to their
tenants under the sexual harassment statute {Civil. Code Sec. 51.9}
State Laws;
1. Fair Housing Act (Rumford) {Govt.
Code 12955}
2. Senior Citizen Housing {Civil
Code 51.3}
3. Handicapped Rights {Civil Code
54}
4. Unruh Act {Civil Code 52-53}
Discrimination in violation of these
statutes may subject the landlord to substantial penalties {Civil. Code Sec. 52}
Federal laws;
1. Civil Rights Act of 1866
2. Fair Housing Act of 1968
3. Fair Housing Act Amendment (1972)
4. Fair Housing Amendment Act (1988)
5. Americans with Disability (1992)
Back To Top
4.
Pets and Waterbeds
Landlords may refuse to rent to any
tenant with a pet except properly trained dogs of any one of the protected disability
classes of tenants. These tenant groups are the blind, visually handicapped, deaf or
physically disabled {Civil. Code Sec. 54.1} A landlord may not charge an additional
security deposit for such qualified dogs {Civil. Code Sec. 54.2} New law on the horizon
may include senior citizen tenants keeping pets in certain public housing programs.
Landlords may not refuse to rent or
continue to rent to tenants, with waterbeds or liquid filled furniture, who are residing
in any structure built after 1972. Landlords are protected and have the right to be
present at the time of waterbed installation to inspect for the proper installation,
require minimum waterbed component standards, including conformity to the floor weight
load limits of the local building code and most importantly require the tenant show proof
of insurance for a minimum amount of $100,00.00 {Civil. Code Sec. 1940.5}.
Back To Top
5. Condition, Maintenance and Repairs
The landlord is under an obligation
to put and keep his rental units in a condition fit for human occupancy, except for those
conditions caused by his tenant's want of ordinary care {Civil Code Secs. 1929, 1941} A
building fit for human occupancy must have at least the following characteristics {Civil
Code Sec. 1941.1}.
1. Effective weatherproofing of
roof, exterior walls, and unbroken windows
2. Plumbing up to code and in good
condition
3. Water supply up to code providing
hot and cold water
4. Heating facilities up to code and
in good condition
5. Electrical lighting up to code
and in good condition
6. Building, grounds and
appurtenances clean and free of vermin at the time of renting
7. Adequate receptacles for garbage
8. Floors, stairways and railings in
good repair Install and maintain locks
9. Conforming locks {Civil Code Sec.
1941.3}
The landlord's obligation to repair
dilapidations in the characteristics of habitable dwellings does not arise if the tenant
violates his own legal obligations as to maintenance, provided these violations
substantially interfere with the landlord's ability to do the repairs {Civil Code Sec.
1941.2}
The landlord is obligated to wire
the premises for at least one telephone line {Civil Code Sec. 1941.4}
Some local jurisdictions have
enacted ordinances requiring certain types of locks, exterior doors, "peep
holes," smoke detectors, etc.
Although a tenant may not waive his
right to the foregoing habitability requirements, he can agree in writing to maintain,
improve or repair these items as part of the consideration of his lease {Civil Code Sec.
1942.1}.
The tenant’s obligation is to
maintain his rental household in a clean, sanitary and undamaged condition {Civil Code
Sec. 1941.2}
The landlord having the duty to
maintain the premises, has the countervailing right to enter the premises to do so {Civil
Code Sec. 1954}.
Where the landlord fails to maintain
the premises as above (i.e. the tenant requests a repair and it is not resolved in a
timely manner (30 days is presumed reasonable), then the tenant has a number of remedies.
He may do the repair himself and deduct it from rent under certain circumstances, or
vacate and be discharged from further obligations under his lease {Civil Code Sec. 1942}
He may also withhold the rent until the repairs are done, if the landlords breaches are
substantial and have affected the tenant's health and safety.
A landlord may not collect rent on a
premises which are substantially in breach of his obligations to maintain the premises
(usually referred to as a breach of the implied warranty of habitability), and may be
legally penalized if he does {Civil Code Sec. 1942.4} Acts in retaliation for a tenant
exercising his legal rights may also subject the landlord to substantial legal penalties
{Civil Code Sec. 1942.5}.
The breach of the implied warranty
of habitability usually comes to a head where the tenant has failed (or refused) to pay
the rent, the landlord has given a three day notice to pay or vacate, then initiated an
eviction action and placed the matter before a judge or jury.
Where this occurs, and the tenant
can show that the landlord's failure to maintain was a substantial breach of the implied
warranty affecting his health and safety, the court or jury will determine the degree to
which this breach devalued the rental value of the property to the tenant, usually
expressed as a percentage, i.e., -15%, -25%, etc. This factor will then be applied to the
lease's rental rate and the rental rate reduced by that amount. The tenant will have the
opportunity to pay the past due rent less the percentage earlier found within five (5)
days of entry of Judgment. If the tenant does so, the tenant wins. If the tenant fails to
pay, the tenant is evicted {Code of Civil Procedure Sec. 1174.2}
Back To Top
6. Tenant Privacy and the Landlord’s Right to Enter the
Dwelling
The landlord may enter the
tenant’s premises only for specific reasons, during normal business hours and only
after the tenant has been given at least 24 hour advance notice of the landlord’s
intent to enter the dwelling {Civil Code Sec. 1954}. The only reasons a landlord may enter
the dwelling are; 1. In an emergency, 2. To make necessary repairs, 3. To make agreed
repairs, 4. To show the rental to prospective tenants, mortgagees or purchasers, 5. When
the tenant has abandoned or vacated the premises or 6. Pursuant to court order.
Back To Top
7. Tenant Defaults and Termination of Tenancy
Tenancy terminations most often
occur upon a default in a lease term, but may be terminated without default. Fixed term
leases end automatically at the end of the term specified unless stated otherwise in the
lease agreement. A one year lease ends on the one year anniversary of its effective date
{Civil Code Secs. 789, 1945}. The lease will automatically renew for a period equal to the
period for which rent is paid, where the tenant remains in occupancy and the landlord
accepts a rent payment. So if the tenant pays a one month rental installment, the lease is
renewed for one month, in effect becoming a month to month lease on the old terms. If no
rent payment is accepted by the landlord, and the tenant fails to vacate, the landlord may
proceed directly to an unlawful detainer proceeding filed in the appropriate court {Code
of Civil Procedure Sec. 1161}.
Many rental agreements are on a
month to month basis, with no specified termination date. In this case, either party may
terminate the tenancy, at will, by giving a thirty day notice terminating tenancy to the
other party {Civil Code Section 1946}. If you live in a rent control city be sure to find
out if your local rent control ordinance prohibits or restricts this right.
Most tenancy terminations are for
breach of a term or condition of the rental agreement. If the agreement is oral, the
landlord may evict for failure to pay rent. If in writing, he may evict for breach of any
material term of the agreement contained in the writing. On rare occasions, a landlord
will terminate the tenancy for the creation of a nuisance or waste on the premises.
Nuisance and waste are technical terms and such notices are beyond the scope of this
article.
In the case of nonpayment of rent,
the tenant must be given a three day notice demanding that the rent in default be paid or,
in the alternative, that the property be surrendered to the landlord. The exact amount of
rent in default must be specified. In the case of a breach of another lease covenant, the
tenant must be given a three day notice demanding that the lease covenant be performed and
the breach be stopped, if that is possible. For example, in the case of a no pet clause,
the tenant must be given three days to remove the pet {Code of Civil Procedure Sec. 1161}.
In the case of any notice of
termination, by default or not by default, the notice should describe the property by
giving its address, be dated, identify all adults on the premises known to the landlord,
and be signed and dated by the owner or a person empowered to act on his behalf. Any
subtenant, authorized by the landlord or not, is entitled to an opportunity to perform a
notice based on default (including a notice to stop subletting).
The notice must be properly
delivered to the tenants. A 30 day termination notice may be served by registered or
certified mailing {Civil Code Sec. 1946} In addition, this and the default and nuisance
notices mentioned above may be served by three methods only: 1. hand delivery, 2.
substituted service and mailing, or 3. posting and mailing. Substituted service of the
notice may only be resorted to when the landlord has first attempted service at the
tenant’s home and any known place of employment {Code of Civil Procedure Sec. 1162}.
Where the landlord reasonably
believes the tenant has abandoned the leased premises (skipped), and the rent has been in
default for at least 14 consecutive days, then the landlord may terminate the tenancy and
retake possession by way of a 15 day notice under {Civil Code Sec. 1951.3}.
Upon the termination of a lease of a
default nature, then the landlord is entitled to recover from the former tenant any rent
in default, any rent loss suffered as a result of the breach and early termination of the
lease, plus anything else the landlord has suffered as a result of the default. The
landlord is under a duty to take reasonable steps to minimize this loss {Civil Code Sec.
1953.2}. In rare instances, the landlord may, if the lease so provides, elect not to
terminate the tenancy and allow the premises to remain vacant, and attempt to collect the
rent as it comes due for the duration of the lease {Civil Code Sec. 1951.4}.
Back To Top
8. Eviction Procedure and Landlord Retaliation
The remedy for the tenant who has
refused to live up to his obligations under the rental agreement, or to vacate once it any
lease has expired, is to evict him. A California eviction is referred to as an
"unlawful detainer" and it is a special proceeding set up by statutes which
provides for an accelerated process. The foundation for this process is the provision to
the tenant of the requisite legal notice allowing him to cure his default and avoid
forfeiture of his tenancy, or terminating his tenancy. See the section on TERMINATION OF
TENANCY. Typically an uncontested eviction action takes under 30 days to complete from
service of eviction notice to Sheriff restoration of the premises.
The tenancy having been terminated,
whether for non-payment of rent and the use of a 3 day pay or quit notice or a 30 day quit
notice, the landlord commences things by filing a complaint and having summons issued in
the local municipal or superior court {Code of Civil Procedure Sec. 1166}. After service
of these documents upon the tenants, they have five days to interpose a response at court
(usually by filing an Answer or other pre-judgment motion) {Code of Civil Procedure Sec.
1167, 1167.3}.
If the tenants fail to appear to
defend or otherwise contest their eviction, then the landlord may immediately have a
clerk’s judgment for possession of the property, and can obtain judgment for any rent
and other things he is entitled to later {Code of Civil Procedure Sec. 1169}.
Where the tenant answers, either
party may demand a trial before a judge or jury, and this trial must occur within 21 days
of the demand {Code of Civil Procedure Sec. 1170.5}.
Upon the conclusion of the trial,
the court will pronounce judgment. If in favor of the tenant, the matter ends. If in favor
of the landlord, the court will order that the landlord be restored to possession of the
property, plus such monetary awards as are allowed {Code of Civil Procedure Sec. 1174}.
After the possession judgment is
entered, the clerk will issue directing the Sheriff or Marshall to go to the premises and
evict the tenant. The peace officer will deliver a five day notice to quit demanding that
the occupants of the premises vacate or be evicted, and upon expiration of the five days,
will physically put the tenants out and restore the landlord to possession. The peace
officer will not, however, move or accept responsibility for any tenant personal property
of the occupants which may remain on the premises. The former tenants have up to and
including 15 days in which to reclaim their personal property {Code of Civil Procedure
Sec. 1174}.
When the peace officer gives his
initial eviction notice, any person who claims a right to possession of the premises may
assert that right and that claim will be resolved under {Code of Civil Procedure Sec.
1174.3}.
The legal process of eviction is
done by the landlord acting "In Propria Persona" or retaining an attorney.
Uncontested cases usually consume 13 to 30 days. Where a tenant fights or contests their
eviction, which would include at least one court hearing, the process will take 30 to 50
days to complete.
If the tenant can show that the
landlord is trying to evict him, raise his rent, or otherwise increase his burdens of
tenancy in retaliation for his exercise of a legal or constitutional right, then the
landlord cannot recover possession from him, or enforce the rent increase or other action.
Where the tenant has acted in the exercise of his rights within the past 180 days, the
landlord is presumed to be acting in retaliation, and the landlord has the burden of proof
of a reason for the eviction or other action. Where the eviction is for non-payment of
rent, or the notice of termination of tenancy, or rent increase, specifies satisfactory
cause for the action, then the tenant may still raise a defense of retaliation, but the
tenant has the burden of proof of retaliation {Civil. Code Sec. 1942.5}.
Back To Top
9.
Tenant Bankruptcy
The U.S. Bankruptcy Act provides
that upon filing, creditors, such as landlords, are automatically restrained from
continuing efforts to collect money or reclaim property from the bankrupt without
permission of the bankruptcy court. The landlord and his attorney must act to obtain an
order from the Bankruptcy Court permitting eviction of the tenant. A separate proceeding,
referred to as a Motion for Relief From Automatic Stay, must be initiated in the
Bankruptcy Court. At the hearing, the court considers whether or not relief should be
granted to the landlord.
Bankruptcy proceedings virtually
require attorney representation and further exposition is beyond the scope of this
summary.
