California Tenant And Landlord Rights And Responsibilities

1625 NORTH MARKET BOULEVARD

SACRAMENTO, CA 95834

www.dca.ca.gov

California TenanTs

A GUIDE TO RESIDENTIAL TENANTS’ AND
LANDLORDS’ RIGHTS AND RESPONSIBILITIES

Revised July 2012

California TenanTs

A GUIDE TO RESIDENTIAL TENANTS’ AND

LANDLORDS’ RIGHTS AND RESPONSIBILITIES

California Tenants—A Guide to Residential Tenants’ and Landlords’ Rights and Responsibilities

was written by the Department of Consumer Affairs’ Legal Affairs Division and was produced by

the Department’s Ofﬁce of Publications, Design & Editing. The 1998 printing of this booklet was

funded by a grant from the California Consumer Protection Foundation.

The California Department of Fair Employment and Housing contributed to the text on unlawful

discrimination in housing.

NOTICE

The opinions expressed in this booklet are those of the authors and should not be construed

as representing the opinions or policy of any ofﬁcial or agency of the State of California. While this

publication is designed to provide accurate and current information about the law, readers should

consult an attorney or other expert for advice in particular cases, and should also read the relevant

statutes and court decisions when relying on cited material.

ORDERING INFORMATION

This publication is available on the Internet. See the Department of Consumer Affairs’ home page

at www.dca.ca.gov.

This booklet may be copied, if (1) the meaning of copied text is not changed or misrepresented,

(2) credit is given to the Department of Consumer Affairs, and (3) all copies are distributed free

of charge.

For information on ordering copies of this booklet, see page 111.

Department of Consumer Affairs, 1998

Reprinted, 2000

Updated and reprinted, 2001

Reprinted, 2002

Updated and reprinted, 2003

Updated, 2004

Updated and reprinted, 2006

Updated and reprinted, 2007

Reprinted, 2008

Updated and reprinted, 2010

Updated and reprinted, 2012, current with all 2011 laws.

Dear Reader:

For most of us, where we live is the most signiﬁcant consumer decision we make, and our housing

costs are the biggest part of our budget. Our home is where we spend much of our time, and we want

it to be hassle free!

Move-in day marks the beginning of an important relationship between a tenant and a landlord. To

help tenants and landlords manage their rental-housing responsibilities, we’re pleased to provide the

Department of Consumer Affairs’ practical “California Tenants” guide.

The “California Tenants” booklet is a practical resource for both tenants and landlords. We’ve

provided information about rental applications, unlawful discrimination, security deposits, repair

responsibilities, rent increases, termination of leases, and eviction notices. We’ve included an

inventory checklist for use before moving in, and again when moving out.

If you need additional assistance, we’ve also provided a comprehensive list of resources in

communities throughout the Golden State.

We hope you ﬁnd “California Tenants” helpful. You can get more information by visiting the

Department’s Web site at www.dca.ca.gov or by calling (800) 952-5210.

California Department of Consumer Affairs

INTRODUCTION .......................................... 1

HOW TO USE THIS BOOKLET ....................... 1

WHO IS A LANDLORD AND

WHO IS A TENANT? ................................... 2

General Information About

Landlords and Tenants ................................ 2

Special Situations ....................................... 2

Hotels and motels ................................ 3

Residential hotels .................................. 3

Single lodger in a private residence ........ 4

Transitional housing .............................. 4

Mobilehome parks and

recreational vehicle parks ...................... 4

LOOKING FOR A RENTAL UNIT ..................... 5

Looking for and Inspecting

Rental Units ................................................ 5

Looking for a rental unit ......................... 5

Inspecting before you rent ...................... 5

The rental application ............................ 6

Prepaid rental listing services ................. 7

Credit Checks ............................................. 9

Application Screening Fee .......................... 10

Holding Deposit ....................................... 10

Unlawful Discrimination ............................. 11

What is unlawful discrimination? ........... 11

Examples of unlawful discrimination ...... 12

Limited exceptions for

single rooms and roommates ............... 13

Resolving housing

discrimination problems ....................... 14

BEFORE YOU AGREE TO RENT ................... 15

Rental Agreements and Leases .................. 15

General information ............................. 15

Oral rental agreements ........................ 16

Written rental agreements .................... 16

Leases ............................................... 17

Shared Utility Meters ................................ 17

Translation of Proposed

Rental Agreement ...................................... 18

WHEN YOU HAVE DECIDED TO RENT ......... 18

What the Rental Agreement or Lease

Should Include ......................................... 19

Key terms ........................................... 19

Alterations to Accommodate a Tenant

With a Disability ........................................ 21

Tenant’s basic legal rights .................... 22

Landlord’s and tenant’s duty of

good faith and fair dealing .................... 22

Shared utilities .................................... 22

Landlord’s Disclosures .............................. 22

Lead-based paint ................................. 22

Periodic pest control treatments ........... 23

Asbestos ............................................ 23

Carcinogenic material .......................... 23

Methamphetamine contamination ......... 23

Demolition permit ................................ 24

Military base or explosives ................... 24

Death in the rental unit ........................ 24

Condominium conversion project .......... 24

Table of ConTenTs

Basic Rules Governing

Security Deposits ...................................... 24

The Inventory Checklist .............................. 26

Renter’s Insurance .................................... 27

Rent Control ............................................. 27

LIVING IN THE RENTAL UNIT ..................... 28

Paying the Rent ................................... 28

When is rent due? ............................... 28

Check or cash? ................................... 29

Obtaining receipts for rent payments ..... 30

Late fees and dishonored check fees .... 30

Partial rent payments .......................... 30

Security Deposit Increases......................... 31

Rent Increases .......................................... 31

How often can rent be raised? .............. 31

Rent increase; notice and

effective date ...................................... 32

Example of a rent increase ................... 33

When Can the Landlord

Enter the Rental Unit? ............................... 33

Subleases and Assignments ...................... 35

Subleases .......................................... 35

Assignments ....................................... 36

DEALING WITH PROBLEMS ....................... 36

Repairs and Habitability ............................. 36

Landlord’s responsibility for repairs ....... 37

Tenant’s responsibility for repairs .......... 37

Conditions that make a

rental unit legally uninhabitable ............ 37

Limitations on landlord’s duty

to keep the rental unit habitable ........... 39

Responsibility for other kinds

of repairs ............................................ 40

Tenant’s agreement to make repairs .... 40

Having Repairs Made ................................. 40

The “repair and deduct” remedy ........... 41

The “abandonment” remedy ................. 42

The “rent withholding” remedy .............. 43

Giving the landlord notice ..................... 45

Tenant information ............................... 46

Lawsuit for damages as a remedy ......... 46

Resolving complaints out of court ......... 47

Landlord’s Sale of the Rental Unit ............... 47

When a property is sold

in foreclosure ...................................... 48

Condominium Conversions ......................... 48

Demolition of Dwelling ............................... 49

Inﬂuencing the Tenant to Move ................... 49

MOVING OUT ............................................ 49

Giving and Receiving Proper Notice ............ 49

Tenant’s notice to end a

periodic tenancy .................................. 49

Tenant’s notice to end tenancy due to

domestic violence, sexual assault,

or stalking ........................................... 50

Landlord’s notice to end a

periodic tenancy ................................. 50

Advance Payment of

Last Month’s Rent ..................................... 52

Refund of Security Deposits ....................... 53

Common problems and

how to avoid them ............................... 53

Initial inspection before

tenant moves out ................................ 55

Suggested Approaches to

security deposit deductions .................. 59

Refund of security deposits

after sale of building ........................... 63

Legal actions for obtaining

refund of security deposits ................... 64

Tenant’s Death ......................................... 65

Moving at the End of a Lease ..................... 65

The Inventory Checklist .............................. 66

TERMINATIONS AND EVICTIONS ............... 67

When Can a Landlord

Terminate a Tenancy? ................................ 67

Written Notices of Termination ................... 68

30-day or 60-day notice ....................... 68

How to respond to a 30-day

or 60-day notice ................................. 68

Three-day notice ................................. 68

How to respond to a three-day notice .... 70

How to count the three days ................. 71

Proper Service of Notices ........................... 71

The Eviction Process

(Unlawful Detainer Lawsuit) ........................ 72

Overview of the eviction process ........... 72

How to respond to an

unlawful detainer lawsuit ...................... 73

Eviction of “unnamed occupants” ......... 74

Before the court hearing ...................... 74

Discovery in unlawful detainer

cases ................................................. 75

After the court’s decision ..................... 76

Writ of possession ............................... 77

Setting aside a default judgment .......... 78

A word about bankruptcy ...................... 78

Retaliatory Actions, Evictions, and

Discrimination ........................................... 79

Retaliatory actions and evictions .......... 79

Retaliatory discrimination ..................... 80

RESOLVING PROBLEMS ............................ 80

Talk With Your Landlord .............................. 80

Getting Help From a Third Party ................. 81

Arbitration and Mediation .......................... 82

GLOSSARY ............................................... 84

APPENDIX 1 — OCCUPANTS NOT NAMED

IN EVICTION LAWSUIT OR WRIT OF

POSSESSION ............................................ 89

Occupants Not Named in

Eviction Lawsuit ........................................ 89

Occupants Not Named in

Writ of Possession .................................... 90

APPENDIX 2—LIST OF CITIES

WITH RENT CONTROL ORDINANCES .......... 90

APPENDIX 3—TENANT INFORMATION

AND ASSISTANCE RESOURCES ................. 91

APPENDIX 4—OTHER RESOURCES ........... 99

Publications on Landlord-Tenant Law ........... 99

Department of Consumer Affairs —

Legal Guides ............................................. 99

Department of Consumer Affairs—

Other Resources ....................................... 99

APPENDIX 5—LEGALLY REQUIRED

TEXT OF NOTICES ................................. 100

INDEX ................................................... 104

INVENTORY CHECKLIST .......................... 107

HOW TO ORDER COPIES

OF THIS BOOKLET .................................. 111

California TenanTs

A GUIDE TO RESIDENTIAL TENANTS’ AND LANDLORDS’

RIGHTS AND RESPONSIBILITIES

IntroductIon

What should a tenant do if his or her

apartment needs repairs? Can a landlord

force a tenant to move? How many days notice

does a tenant have to give a landlord before

the tenant moves? Can a landlord raise a

tenant’s rent? California Tenants—A Guide to

Residential Tenants’ and Landlords’ Rights and

Responsibilities answers these questions and

many others.

Whether the tenant is renting a room, an

apartment, a house, or a duplex, the landlord-

tenant relationship is governed by federal, state,

and local laws. This booklet focuses on California

laws that govern the landlord-tenant relationship,

and suggests things that both the landlord and

tenant can do to make the relationship a good

one. Although the booklet is written from the

tenant’s point of view, landlords can also beneﬁt

from its information.

Tenants and landlords should discuss their

expectations and responsibilities before they

enter into a rental agreement. If a problem

occurs, the tenant and landlord should try to

resolve the problem by open communication

and discussion. Honest discussion of the

problem may show each party that he or she

is not completely in the right, and that a fair

compromise is in order.

If the problem is one for which the landlord

is responsible (see pages 37–40), the landlord

may be willing to correct the problem or work out

a solution without further action by the tenant.

If the problem is one for which the tenant is

responsible (see pages 37–40), the tenant may

agree to correct the problem once the tenant

understands the landlord’s concerns. If the

parties cannot reach a solution on their own,

they may be able to resolve the problem through

mediation or arbitration (see page 82). In some

situations, a court action may provide the only

solution (see pages 46–48, 64–65, 72–78).

The Department of Consumer Affairs hopes

that tenants and landlords will use this booklet’s

information to avoid problems in the ﬁrst place,

and to resolve those problems that do occur.

How to use tHIs Booklet

You can probably ﬁnd the information you need

by using this booklet’s Table of Contents, Index,

and Glossary of Terms.

TABLE OF CONTENTS

The Table of Contents shows that the booklet

is divided into nine main sections. Each main

section is divided into smaller sections. For

example, if you want information about the rental

agreement, look under “Rental Agreements and

Leases” in the “BEFORE YOU AGREE TO RENT”

section.

INDEX

Most of the topics are mentioned in the Table

of Contents. If you don’t ﬁnd a topic there, look in

the Index (page 104). It’s more speciﬁc than the

Table of Contents. For example, under “Cleaning”

in the Index, you’ll ﬁnd the topics “deposits or

fees,” “tenant’s responsibility,” etc.

GLOSSARY

If you just want to know the meaning of a

term, such as eviction or holding deposit, look

in the Glossary (page 84). The glossary gives

the meaning of more than 60 terms. Each of

these terms also is printed in boldface type the

ﬁrst time that it appears in each section of the

booklet.

The Department of Consumer Affairs hopes

that you will ﬁnd the information you’re looking

for in this booklet. If you can’t ﬁnd what you’re

looking for, call or write one of the resources

listed in “Getting Help From a Third Party”

(see pages 81–82) or “Tenant Information and

Assistance Resources” (see page 91).

wHo Is a landlord and

wHo Is a tenant?

GENERAL INFORMATION ABOUT

LANDLORDS AND TENANTS

A landlord is a person or a company that owns

a rental unit. The landlord rents or leases the

rental unit to another person, called a tenant, for

the tenant to live in. The tenant obtains the right

to the exclusive use and possession of the rental

unit during the lease or rental period.

Sometimes, the landlord is called the owner,

and the tenant is called a resident.

1 Civil Code Sections 1961, 1962, 1962.5. See Moskovitz et al., California Landlord-Tenant Practice, Section 1.21A

(Cal. Cont. Ed. Bar 2011).

2 Civil Code Section 1940(a).

3 See additional discussion in Moskovitz et al., California Landlord-Tenant Practice, Section 1.3 (Cal. Cont. Ed. Bar 2002, 2005, 2009, 2011).

A rental unit is an apartment, house, duplex,

condominium, or room that a landlord rents

to a tenant to live in. In this booklet, the term

rental unit means any one of these. Because the

tenant uses the rental unit to live in, it is called a

residential rental unit.

Often, a landlord will have a rental agent or

a property manager who manages the rental

property. The agent or manager is employed

by the landlord and represents the landlord.

In most instances, the tenant can deal with

the rental agent or property manager as if this

person were the landlord. For example, a tenant

can work directly with the agent or manager to

resolve problems. When a tenant needs to give

the landlord one of the tenant notices described

in this booklet (for example, see pages 45–46,

49–50), the tenant can give the notice to the

landlord’s rental agent or property manager.

The name, address and telephone number

of the manager and an owner of the building

(or other person who is authorized to receive

legal notices for the owner) must be written

in the rental agreement or lease, or posted

conspicuously in the rental unit or building.

SPECIAL SITUATIONS

The tenant rights and responsibilities

discussed in this booklet apply only to people

whom the law deﬁnes as tenants. Generally,

under California law, lodgers and residents

of hotels and motels have the same rights

as tenants.

Situations in which lodgers and

residents of hotels and motels do and do not

have the rights of tenants, and other special

situations, are discussed in the “Special

Situations” sidebar on pages 3–4.

Continued on page 5

Hotels and motels

If you are a resident in a hotel or motel, you do not have the rights of a tenant in any of the

following situations:

1. You live in a hotel, motel, residence club, or other lodging facility for 30 days or less, and your

occupancy is subject to the state’s hotel occupancy tax.

2. You live in a hotel, motel, residence club, or other lodging facility for more than 30 days, but

have not paid for all room and related charges owing by the 30th day.

3. You live in a hotel or motel to which the manager has a right of access and control, and all of

the following is true:

• The hotel or motel allows occupancy for periods of fewer than seven days.

• All of the following services are provided for all residents:

- a ﬁreproof safe for residents’ use;

- a central telephone service;

- maid, mail, and room service; and

- food service provided by a food establishment that is on or next to the hotel or motel

grounds and that is operated in conjunction with the hotel or motel.

If you live in a unit described by either 1, 2, or 3 above, you are not a tenant; you are a

guest. Therefore, you don’t have the same rights as a tenant.

For example, the proprietor of

a hotel can lock out a guest who doesn’t pay his or her room charges on time, while a landlord

would have to begin formal eviction proceedings to evict a nonpaying tenant.

Residential hotels

You have some of the legal rights of a tenant if you are a resident in a residential hotel,

which is in fact your primary residence.

Residential hotel means any building which contains

six or more guest rooms or efﬁciency units which are designed, used, rented or occupied for

sleeping purposes by guests, and which is the primary residence of these guests.

In residential

hotels, a locking mail receptacle must be provided for each residential unit.

Special Situations

4 Civil Code Section 1940.

5 Health and Safety Code Section 50519(b)(1). See California Practice Guide, Landlord-Tenant, Paragraphs 2:39, 2:40.1, 7:6.2

(Rutter Group 2011).

6 Health and Safety Code Section 50519(b)(1). See California Practice Guide, Landlord-Tenant, Paragraphs 2:39, 2:40.1, 7:6.2

(Rutter Group 2011).

7 Health and Safety Code Sections 17958.3; Civil Code Section 1944.1(i); Califorrnia Practice Guide, Landlord-Tenant, Paragraph 3:21(a)

(Rutter Group 2011).

Special Situations continued on page 4

It is unlawful for the proprietor of a residential hotel to require a guest to move or to check

out and re-register before the guest has lived there for 30 days, if the proprietor’s purpose is to

have the guest maintain transient occupancy status (and therefore not gain the legal rights of

a tenant).

A person who violates this law may be punished by a $500 civil penalty and may be

required to pay the guest’s attorney fees.

Single lodger in a private residence

A lodger is a person who lives in a room in a house where the owner lives. The owner can

enter all areas occupied by the lodger and has overall control of the house.

Most lodgers have

the same rights as tenants.

However, in the case of a single lodger in a house where there are no other lodgers, the

owner can evict the lodger without using formal eviction proceedings. The owner can give the

lodger written notice that the lodger cannot continue to use the room. The amount of notice

must be the same as the number of days between rent payments (for example, 30 days). (See

“Landlord’s notice to end a periodic tenancy,” page 50.) When the owner has given the lodger

proper notice and the time has expired, the lodger has no further right to remain in the owner’s

house and may be removed as a trespasser.

Transitional housing

Some tenants are residents of “transitional housing.” Transitional housing provides services

and housing to formerly homeless persons for periods of 30 days to 24 months. Special rules

cover the behavior of residents in, and eviction of residents from, transitional housing.

Mobilehome parks and recreational vehicle parks

Special rules in the Mobilehome Residency Law

or the Recreational Vehicle Park

Occupancy Law,

and not the rules discussed in this booklet, cover most landlord-tenant

relationships in mobilehome parks and recreational vehicle parks.

However, normal eviction procedures (see pages 67–80) must be used to evict certain

mobilehome residents. Speciﬁcally, a person who leases a mobilehome from its owner (where

the owner has leased the site for the mobilehome directly from the management of the

mobilehome park) is subject to the eviction procedures described in this booklet, and not the

eviction provisions in the Mobilehome Residency Law. The same is true for a person who leases

both a mobilehome and the site for the mobilehome from the mobilehome park management.

Special Situations continued from page 3

8 Civil Code Section 1940.1. Evidence that an occupant was required to check out and re-register creates a rebuttable presumption that

the proprietor’s purpose was to have the occupant maintain transient occupancy status. (Civil Code Section 1940.1(a).) This presumption

affects the burden of producing evidence.

9 Civil Code Section 1946.5.

10 Civil Code Section 1940(a).

11 Civil Code Section 1946.5, Penal Code Section 602.3.

12 Health and Safety Code Sections 50580-50591.

13 Civil Code Sections 798-799.10. See Moskovitz et al., California Landlord-Tenant Practice, Sections 6.62-6.89 (Cal. Cont. Ed. Bar 2011).

14 Civil Code Sections 799.20-799.79.

15 California Practice Guide, Landlord-Tenant, Paragraphs 11:27-11:28 (Rutter Group 2011).

lookIng For a rental unIt

LOOKING FOR AND INSPECTING RENTAL UNITS

Looking for a rental unit

When you are looking for a rental unit, the

most important things to think about are:

•

The dollar limit that you can afford for monthly

rent and utilities.

•

The dollar limit that you can afford for all

deposits that may be required (for example,

holding and security deposits).

•

The location that you want.

In addition, you also should carefully consider

the following:

•

The kind of rental unit that you want (for

example, an apartment complex, a duplex, or

a single-family house), and the features that

you want (such as the number of bedrooms

and bathrooms).

•

Whether you want a month-to-month rental

agreement or a lease (see pages 15–17).

•

Access to schools, stores, public

transportation, medical facilities,

child-care facilities, and other necessities

and conveniences.

•

The character and quality of the neighborhood

(for example, its safety and appearance).

•

The condition of the rental unit (see

“Inspecting before you rent,” page 5).

•

Other special requirements that you or your

family members may have (for example,

wheelchair access).

You can obtain information on places to rent

from many sources. Many Internet Web sites

list rental properties. Local newspapers carry

classiﬁed advertisements on available rental

units. In many areas, there are free weekly

or monthly publications devoted to rental

listings. Local real estate ofﬁces and property

management companies often have rental

listings. Bulletin boards in public buildings, local

colleges, and churches often have notices about

places for rent. You can also look for “For Rent”

signs in the neighborhoods where you would like

to live.

Inspecting before you rent

Before you decide to rent, carefully inspect

the rental unit with the landlord or the landlord’s

agent. Make sure that the unit has been

maintained well. Use the inventory checklist

(pages 107-110) as an inspection guide. When

you inspect the rental unit, look for the following

problems:

•

Cracks or holes in the ﬂoor, walls, or ceiling.

•

Signs of leaking water or water damage in the

ﬂoor, walls, or ceiling.

•

The presence of mold that might affect your or

your family’s health and safety.

•

Signs of rust in water from the taps.

•

Leaks in bathroom or kitchen ﬁxtures.

•

Lack of hot water.

•

Inadequate lighting or insufﬁcient electrical

outlets.

•

Inadequate heating or air conditioning.

•

Inadequate ventilation or offensive odors.

•

Defects in electrical wiring and ﬁxtures.

•

Damaged ﬂooring.

•

Damaged furnishings (if it’s a furnished unit).

•

Signs of insects, vermin, or rodents.

•

Accumulated dirt and debris.

•

Inadequate trash and garbage receptacles.

•

Chipping paint in older buildings. (Paint chips

sometimes contain lead, which can cause lead

poisoning if children eat them. If the building

was built before 1978, you should read the

booklet, “Protect Your Family From Lead in

Your Home,” which is available by calling

(800)-424-LEAD or online at www.epa.gov/

lead/pubs/leadpdfe.pdf).

•

Signs of asbestos-containing materials in

older buildings, such as ﬂaking ceiling tiles, or

crumbling pipe wrap or insulation. (Asbestos

particles can cause serious health problems if

they are inhaled.) For more information, go to

www.epa.gov/asbestos.

•

Any sign of hazardous substances, toxic

chemicals, or other hazardous waste products

in the rental unit or on the property.

Also, look at the exterior of the building

and any common areas, such as hallways and

courtyards. Does the building appear to be well-

maintained? Are the common areas clean and

well-kept?

The quality of rental units can vary greatly.

You should understand the unit’s good points

and shortcomings, and consider them all when

deciding whether to rent, and whether the rent is

reasonable.

Ask the landlord who will be responsible for

paying for utilities (gas, electric, water, and trash

collection). You will probably be responsible for

some, and possibly all, of them. Try to ﬁnd out

how much the previous tenant paid for utilities.

This will help you be certain that you can

afford the total amount of the rent and utilities

each month. With increasing energy costs, it’s

important to consider whether the rental unit and

its appliances are energy efﬁcient.

If the rental unit is a house or duplex with a

yard, ask the landlord who will be responsible for

taking care of the yard. If you will be, ask whether

the landlord will supply necessary equipment,

such as a lawn mower and a hose.

During this initial walk-through of the rental

unit, you will have the chance to see how your

potential landlord reacts to your concerns about

it. At the same time, the landlord will learn how

you handle potential problems. You may not be

able to reach agreement on every point, or on

any. Nonetheless, how you get along will help

both of you decide whether you will become a

tenant.

If you ﬁnd problems like the ones listed above,

discuss them with the landlord. If the problems

are ones that the law requires the landlord to

repair (see pages 37–40), ﬁnd out when the

landlord intends to make the repairs. If you agree

to rent the unit, it’s a good idea to get these

promises in writing, including the date by which

the repairs will be completed.

If the landlord isn’t required by law to make

the repairs, you should still write down a

description of any problems if you are going

to rent the property. It’s a good idea to ask

the landlord to sign and date the written

description. Also, take photographs or a video

of the problems. Use the time and date stamp,

if your camera has this feature. Your signed,

written description and photographs or video will

document that the problems were there when you

moved in, and can help avoid disagreement later

about your responsibility for the problems.

Finally, it’s a good idea to walk or drive around

the neighborhood during the day and again in

the evening. Ask neighbors how they like living

in the area. If the rental unit is in an apartment

complex, ask some of the tenants how they get

along with the landlord and the other tenants. If

you are concerned about safety, ask neighbors

and tenants if there have been any problems, and

whether they think that the area is safe.

THE RENTAL APPLICATION

Before renting to you, most landlords will

ask you to ﬁll out a written rental application

form. A rental application is different from a

rental agreement (see pages 15–17). The rental

application is like a job or credit application. The

landlord will use it to decide whether to rent to you.

A rental application usually asks for the

following information:

•

The names, addresses, and telephone

numbers of your current and past

employers.

•

The names, addresses, and telephone

numbers of your current and past

landlords.

Continued on page 8

Businesses known as prepaid rental listing services sell lists of available rental units. These

businesses are regulated by the California Department of Real Estate (DRE) and must be

licensed.

You may check the status of a license issued to a prepaid rental service on the DRE

Web site (www.dre.ca.gov) to ensure that the service is licensed. If you use a prepaid rental

listing service, it must enter into a contract with you before it accepts any money from you.

The contract must describe the services that the prepaid rental listing service will provide you.

The contract also must include a description of the kind of rental unit that you want to ﬁnd. For

example, the contract must state the number of bedrooms that you want and the highest rent

that you will pay.

Before you enter into a contract with a prepaid rental listing service or pay for information

about available rental units, ask if the service is licensed and whether the list of rentals is

current. The contract cannot be for more than 90 days. The law requires the service to give you

a list of at least three currently available rentals within ﬁve days after you sign the contract.

You can receive a refund of the fee that you paid for the list of available rentals if the list does

not contain three available rental units of the kind that you described in the contract.

In order

to obtain a refund, you must demand a full refund from the prepaid rental listing service within

15 days of signing the contract. Your demand for a refund must be in writing and must be

personally delivered to the prepaid rental listing service or sent to it by certiﬁed or registered

mail. (However, you can’t get a refund if you found a rental using the services of the prepaid

rental listing service.)

If you don’t ﬁnd a rental unit from the list you bought, or if you rent from another source,

the prepaid rental listing service can keep only $50 of the fee that you paid. The service must

refund the balance, but you must request the refund within 10 days after the end of the contract.

You must provide documentation that you did not move, or that you did not ﬁnd your new rental

using the services of the prepaid rental listing service. If you don’t have documentation, you

can ﬁll out and swear to a form that the prepaid rental listing service will give you for this

purpose. You can deliver your request for a refund personally or by mail (preferably by certiﬁed or

registered mail with return receipt requested). Look in the contract for the address. The service

must make the refund within 10 days after it receives your request.

Prepaid Rental Listing Services

16 Business and Professions Code Section 10167.

17 Business and Professions Code Section 10167.9(a).

18 Business and Professions Code Section 10167.10.

•

The names, addresses, and telephone

numbers of people whom you want to use as

references.

•

Your Social Security number.

•

Your driver’s license number.

•

Your bank account numbers.

•

Your credit account numbers for credit

reference.

The application also may contain an

authorization for the landlord to obtain a copy of

your credit report, which will show the landlord

how you have handled your ﬁnancial obligations

in the past.

The landlord may ask you what kind of job

you have, your monthly income, and other

information that shows your ability to pay the

rent. It is illegal for the landlord to discriminate or

harass you because of race, color, religion, sex,

sexual orientation, marital status, national origin,

ancestry, familial status, source of income, or any

disability

or whether you have persons under

the age of 18 living in your household.

With the

exception of source of income, the landlord may

not ask you questions in writing or orally about

your race, color, religion, sex, sexual orientation,

marital status, national origin, ancestry, familial

status, any disability, or whether you have

persons under the age of 18 living in your

household.

Further, the landlord may not ask

about your immigration or citizenship status.

Although the landlord may not discriminate on the

basis of source of income, the landlord is allowed

to ask you about your level of income and your

source of income.

Also, the landlord should

not ask you questions about your age or medical

condition.

(See “Unlawful Discrimination,”

pages 11–15.)

The landlord may ask you about the number

of people who will be living in the rental unit. In

order to prevent overcrowding of rental units,

California has adopted the Uniform Housing

Code’s occupancy requirements,

and the basic

legal standard is set out in footnote 25. However,

the practical rule is this: A landlord can establish

reasonable standards for the number of people

per square feet in a rental unit, but the landlord

cannot use overcrowding as a pretext for refusing

to rent to tenants with children if the landlord

would rent to the same number of adults.

19 Civil Code Section 51.

20 Government Code Sections 12955(b), 12955.1-12955.9; 12989-12989.3; 42 United States Code Sections 3601-3631; Moskovitz

et al.,. California Landlord Tenant Practice Sections 2.22-2.25 (CEB 2011).

21 Government Code Section 12955(b).

22 Civil Code Section 1940.3(b). See California Practice Guide, Landlord Tenant, Paragraph 2:569.1 (Rutter Group 2011).

23 Government Code Section 12955(p)(2).

24 Government Code Sections 12900-12996; Civil Code Sections 51-53; 42 United States Code Section 3601 and following. However, after

you and the landlord have agreed that you will rent the unit, the landlord may ask for proof of your disability if you ask for a “reasonable

accommodation” for your disability, such as installing special faucets or door handles. (Brown, Warner and Portman, The California

Landlords’ Law Book, Vol. I: Rights & Responsibilities, pages 161-163 (NOLO Press 2011)). (See chapter 9 of this reference for a

comprehensive discussion of discrimination).

25 Health and Safety Code Section 17922. See 1997 Uniform Housing Code Section 503(b) (every residential rental unit must have at least

one room that is at least 120 square feet; other rooms used for living must be at least 70 square feet; and any room used for sleeping

must increase the minimum ﬂoor area by 50 square feet for each occupant in excess of two). Different rules apply in the case of

“efﬁciency units.” (See 1997 Uniform Housing Code Section 503(b), Health and Safety Code Section 17958.1.)

26 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 166-167 (NOLO Press 2011).

This reference suggests that a landlord’s policy that is more restrictive than two occupants per bedroom plus one additional occupant is

suspect as being discriminatory.

CREDIT CHECKS

The landlord or the landlord’s agent will

probably use your rental application to check your

credit history and past landlord-tenant relations.

The landlord may obtain your credit report from

a credit reporting agency to help him or her

decide whether to rent to you. Credit reporting

agencies (or “credit bureaus”) keep records of

people’s credit histories, called “credit reports.”

Credit reports state whether a person has been

reported as being late in paying bills, has been

the subject of an unlawful detainer lawsuit (see

pages 72-78), or has ﬁled bankruptcy.

Some credit reporting agencies, called tenant

screening services, collect and sell information

on tenants. This information may include whether

tenants paid their rent on time, whether they

damaged previous rental units, whether they

were the subject of an unlawful detainer lawsuit,

and whether landlords considered them good or

bad tenants.

The landlord may use this information to

make a ﬁnal decision on whether to rent to you.

Generally, landlords prefer to rent to people who

have a history of paying their rent and other bills

on time.

A landlord usually doesn’t have to give you a

reason for refusing to rent to you. However, if the

decision is based partly or entirely on negative

information from a credit reporting agency or a

tenant screening service, the law requires the

landlord to give you a written notice stating all of

the following:

•

The decision was based partly or entirely on

information in the credit report; and

•

The name, address, and telephone number of

the credit reporting agency; and

•

A statement that you have the right to obtain

a free copy of the credit report from the

credit reporting agency that prepared it and

to dispute the accuracy or completeness of

information in the credit report.

If the landlord refuses to rent to you based

on your credit report, it’s a good idea to get a

free copy of your credit report and to correct

any erroneous items of information in it.

Erroneous items of information in your credit

report may cause other landlords to refuse to

rent to you also.

Also, if you know what your credit report says,

you may be able to explain any problems when

you ﬁll out the rental application. For example,

if you know that your credit report says that you

never paid a bill, you can provide a copy of the

canceled check to show the landlord that you did

pay it.

The landlord probably will consider your credit

score in deciding whether to rent to you. Your

credit score is a numerical score that is based

on information from a credit reporting agency.

Landlords and other creditors use credit scores

to gauge how likely a person is to meet his or

her ﬁnancial obligations, such as paying rent. You

can request your credit score when you request

27 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 16-20 (NOLO Press 2011);

California Practice Guide, Landlord-Tenant, Paragraphs 9:419.5, 9:419.11 (Rutter Group 2011).

28 Schoendorf v. Unlawful Detainer Registry, Inc. (2002) 97 Cal.App.4th 227 [118 Cal.Rptr.2d 313].

29 Consumer Credit Reporting Agencies Act, Civil Code Sections 1785.1-1785.36 and Section 1785.20(a); Investigative Consumer Reporting

Agencies Act, Civil Code Sections 1786-1786.60 and Section 1786.40; 15 United States Code Sections 1681-1681x and 1681m(a). In

order to receive a free copy of your credit report, you must request it within 60 days after receiving the notice of denial. See discussion in

California Practice Guide, Landlord-Tenant, Paragraphs 2:104.50-2:104.55 (Rutter Group 2011). Landlords’ responsibilities when using

credit reports are outlined in a publication by the Federal Trade Commission titled “Using Consumer Reports: What Landlords Need to

Know,” which can be found online at www.ftc.gov/bcp/edu/pubs/business/credit/bus49.shtm.

30 Civil Code Sections 1785.16, 1786.24; 15 United States Code Section 1681i.

your credit report (you may have to pay a fair and

reasonable fee for the score), or purchase your

score from a vendor.

APPLICATION SCREENING FEE

When you submit a rental application, the

landlord may charge you an application screening

fee. In 2011, the landlord may charge up to

$42.41, and may use the fee to cover the cost

of obtaining information about you, such as

checking your personal references and obtaining

a credit report on you.

The application fee cannot legally be more

than the landlord’s actual out-of-pocket costs,

and, in 2012, can never be more than $49.50.

The landlord must give you a receipt that itemizes

his or her out-of-pocket expenses in obtaining

and processing the information about you. The

landlord must return any unused portion of the

fee (for example, if the landlord does not check

your references).

The landlord can’t charge you an application

screening fee when the landlord knows or should

know that there is no vacancy or that there will

be no vacancy within a reasonable time. However,

the landlord can charge an application screening

fee under these circumstances if you agree to it

in writing.

If the landlord obtains your credit report after

you’ve paid the screening fee, the landlord must

give you a copy of the report if you request it.

As explained in the section on “Credit Checks,”

it’s a good idea to get a copy of your credit report

from the landlord so that you know what’s being

reported about you.

Before you pay the application screening fee,

ask the landlord the following questions about it:

•

How long will it take the landlord to get a copy

of your credit report? How long will it take the

landlord to review the credit report and decide

whether to rent to you?

•

Is the fee refundable if the credit check takes

too long and you’re forced to rent another

place?

•

If you already have a current copy of your

credit report, will the landlord accept it and

either reduce the fee or not charge it at all?

If you don’t like the landlord’s policy on

application screening fees, you may want to

look for another rental unit. If you decide to pay

the application screening fee, any agreement

regarding a refund should be in writing.

HOLDING DEPOSIT

Sometimes, the tenant and the landlord

will agree that the tenant will rent the unit, but

the tenant cannot move in immediately. In this

situation, the landlord may ask the tenant for a

holding deposit. A holding deposit is a deposit

to hold the rental unit for a stated period of

time until the tenant pays the ﬁrst month’s rent

and any security deposit. During this period, the

landlord agrees not to rent the unit to anyone

else. If the tenant changes his or her mind about

moving in, the landlord may keep at least some

of the holding deposit.

Ask the following questions before you pay a

holding deposit:

•

Will the deposit be applied to the ﬁrst month’s

rent? If so, ask the landlord for a deposit

receipt stating this. Applying the deposit to

the ﬁrst month’s rent is a common practice.

31 Civil Code Sections 1785.15(a)(2), 1785.15.1, 1785.15.2; 15 United States Code Section 1681g(f). Vendors include www.TransUnion.

com, www.Experian.com, www.Equifax.com, and www.myﬁco.com.

32 Civil Code Section 1950.6. The maximum fee is adjusted each year based on changes in the Consumer Price Index since January 1, 1998.

In 2012, the maximum allowable fee is $49.50.

33 Civil Code Section 1950.6(c).

34 Civil Code Section 1950.6(f).

•

Is any part of the holding deposit refundable

if you change your mind about renting? As

a general rule, if you change your mind, the

landlord can keep some—and perhaps all

—of your holding deposit. The amount that

the landlord can keep depends on the costs

that the landlord has incurred because you

changed your mind—for example, additional

advertising costs and lost rent.

You may also lose your deposit even if the

reason you can’t rent is not your fault—for

example, if you lose your job and cannot afford

the rental unit.

If you and the landlord agree that all or part of

the deposit will be refunded to you in the event

that you change your mind or can’t move in, make

sure that the written receipt clearly states your

agreement.

A holding deposit merely guarantees that the

landlord will not rent the unit to another person

for a stated period of time. The holding deposit

doesn’t give the tenant the right to move into

the rental unit. The tenant must ﬁrst pay the

ﬁrst month’s rent and all other required deposits

within the holding period. Otherwise, the landlord

can rent the unit to another person and keep all

or part of the holding deposit.

Suppose that the landlord rents to somebody

else during the period for which you’ve paid a

holding deposit, and you are still willing and able

to move in. The landlord should, at a minimum,

return the entire holding deposit to you. You

may also want to talk with an attorney, legal

aid organization, tenant-landlord program, or

housing clinic about whether the landlord may be

responsible for other costs that you may incur

because of the loss of the rental unit.

If you give the landlord a holding deposit when

you submit the rental application, but the landlord

does not accept you as a tenant, the landlord

must return your entire holding deposit to you.

UNLAWFUL DISCRIMINATION

What is unlawful discrimination?

A landlord cannot refuse to rent to a tenant,

or engage in any other type of discrimination,

on the basis of group characteristics speciﬁed

by law that are not closely related to the

landlord’s business needs.

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.

Indeed,

the California Legislature has declared that the

opportunity to seek, obtain and hold housing

without unlawful discrimination is a civil right.

Under California law, it is unlawful for a

landlord, managing agent, real estate broker, or

salesperson to discriminate against a person

or harass a person because of the person’s

race, color, religion, sex (including pregnancy,

childbirth or medical conditions related to them,

as well as gender and perception of gender),

sexual orientation, marital status, national origin,

ancestry, familial status, source of income,

35 For example, the landlord may properly require that a prospective tenant have an acceptable credit history and be able to pay the rent

and security deposit, and have veriﬁable credit references and a good history of paying rent on time. (See Portman and Brown, California

Tenants’ Rights, pages 104, 106 (NOLO Press 2010).)

36 California Practice Guide, Landlord-Tenant, Paragraph 2:553.15 (Rutter Group 2011), citing Harris v. Capital Growth Investors XIV

(1991) 52 Cal.3d 1142 [278 Cal.Rptr. 614].

37 Government Code Section 12921(b).

Continued on page 13

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).

Examples of Unlawful Discrimination

38 Government Code Sections 12926(p), 12927(c)(1),(e), 12948, 12955(d); Civil Code Sections 51, 51.2, 55.1(b). See Moskovitz et al.,

California Landlord-Tenant Practice, Section 2.27 (Cal. Cont. Ed. Bar 2011).

or disability.

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;

•

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.

Under California law, a landlord cannot use a

different ﬁnancial or income standard for persons

who will be living together and combining

their incomes than standard used for married

persons who combine their incomes. In the

case of a government rent subsidy, a landlord

who is assessing a potential tenant’s eligibility

for a rental unit must use a ﬁnancial or income

standard that is based on the portion of rent

that the tenant would pay.

A landlord cannot

apply rules, regulations or policies to unmarried

couples who are registered domestic partners

that do not apply to married couples.

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.

However, a landlord can request

information or documents in order to verify an

applicant’s identity and ﬁnancial qualiﬁcations.

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.

Limited exceptions for single rooms

and roommates

If the owner of an owner-occupied, single-family

home rents out a room in the home to a roomer

or a boarder, and there are no other roomers or

boarders living in the household, the owner is not

subject to the restrictions listed under “Examples

of unlawful discrimination” on page 12.

However, the owner cannot make oral or

written statements, or use notices or

39 Government Code Sections 12926(p), 12927(e), 12955(a),(d). See Fair Employment and Housing Act, Government Code Section 12900

and following; federal Fair Housing Act, 42 United States Code Section 3601 and following.

40 Civil Code Sections 51, 51.2, 53; Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142 [278 Cal.Rptr. 614].

41 Government Code Section 12955(m), Civil Code Section 51.

42 Government Code Sections 12955(n),(o).

43 Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142 [278 Cal.Rptr. 614].

44 Civil Code Section 1940.3; California Practice Guide, Landlord-Tenant, Paragraph 2:569.1 (Rutter Group 2011).

45 California Practice Guide, Landlord-Tenant, Paragraph 2.553 citing Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824

[31 Cal.Rptr.3d 565]. See Civil Code Section 1940.3.

46 42 United States Code Section 3607(b), Civil Code Section 51.3(b)(1). “Housing for senior citizens” also includes: Housing that is pro-

vided under any state or federal program that the Secretary of Housing and Urban Development has determined is speciﬁcally designed

and operated to assist elderly persons (42 United States Code Section 3607(b)); or a housing development that is developed, substan-

tially rehabilitated or substantially renovated for senior citizens and that has the minimum number of dwelling units required by law for

the type of area where the housing is located (for example, 150 dwelling units built after January, 1996 in large metropolitan areas) (Civil

Code Sections 51.2, 51.3. Government Code Section 12955.9. See Marina Point Ltd. v. Wolfson (1982) 30 Cal.3d 721 [180 Cal.Rptr.

496]). While the law prohibits unlawful age discrimination, housing for homeless youth is both permitted and encouraged. (Government

Code Section 11139.3.)

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.

Further, the owner cannot

discriminate on the basis of medical condition

or age.

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.

Resolving housing discrimination problems

If you are a victim of housing discrimination

(for example, if a landlord refuses to rent to you

because of your race or national origin), you may

have several legal remedies, including:

•

Recovery of out-of-pocket losses.

•

An injunction prohibiting the unlawful practice.

•

Access to housing that the landlord

denied you.

•

Damages for emotional distress.

•

Civil penalties or punitive damages.

•

Attorney’s fees.

Sometimes, a court may order the landlord

to take speciﬁc action to stop unlawful

discrimination. For example, the landlord may be

ordered to advertise vacancies in newspapers

published by ethnic minority groups, or to place

fair housing posters in the rental ofﬁce.

A number of resources are available to help

resolve housing discrimination problems:

•

Local fair housing organizations (often

known as fair housing councils). Look in

the white (business) and yellow pages of

the phone book. The National Fair Housing

Alliance maintains a searchable database

of local organizations that advocate for fair

housing at www.Fairhousing.org.

•

Local California apartment association

chapters. Look in the white (business) and

yellow pages of the phone book. The California

Apartment Association maintains a list of local

apartment association chapters at

www.caanet.org.

•

Local government agencies. Look in the white

pages of the phone book under City or County

Government Ofﬁces, or call the ofﬁces of local

elected ofﬁcials (for example, your city council

representative or your county supervisor).

•

The California Department of Fair

Employment and Housing investigates

housing discrimination complaints (but not

other kinds of landlord-tenant problems).

The department’s Housing Enforcement Unit

can be reached at (800) 233-3212

TTY (800) 700-2320. You can learn

about the department’s complaint process

at www.dfeh.ca.gov.

•

The U.S. Department of Housing and Urban

Development (HUD) enforces the federal fair

housing law, which prohibits discrimination

based on sex, race, color, religion, national

origin, familial status, and handicap

(disability). To contact HUD, look in the white

pages of the phone book under United States

Government Ofﬁces, or go to www.hud.gov.

•

Legal aid organizations provide free

legal advice, representation, and other

legal services in noncriminal cases to

economically disadvantaged persons.

Legal aid organizations are located throughout

the state. Look in the yellow pages of the

phone book under Attorneys, or go to www.

lawhelpcalifornia.org/CA/StateDirectory.cfm.

47 Government Code Sections 12927(a)(2)(A), 12955(c).

48 Civil Code Sections 51,51.2, Government Code Section 12948.

49 Government Code Section 12927(c)(2)(B).

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.

First, write down

what happened, including dates and the names

of those involved. Then, contact one of the

resources listed above for advice and help.

BeFore You agree to rent

Before you decide on a rental unit, there are

several other points to consider. For example: Is

an oral rental agreement legally binding? What

are the differences between a lease and a rental

agreement? What are some of the advantages

and disadvantages of each? This section

answers these and other questions.

RENTAL AGREEMENTS AND LEASES

General information

Before you can rent a rental unit, you and

the landlord must enter into one of two kinds of

agreements: a periodic rental agreement or a

lease. The periodic rental agreement or lease

creates the tenant’s right to live in the rental

unit. The tenant’s right to use and possess the

landlord’s rental unit is called a tenancy.

A periodic rental agreement states the length

of time (the number of days) between the rent

payments—for example a week (seven days) or a

month (30 days). The length of time between rent

payments is called the rental period.

A periodic rental agreement that requires one

rent payment each month is a month-to-month

rental agreement, and the tenancy is a month-

to-month tenancy.

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.

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.

A periodic rental agreement does not

state the total number of weeks or months that

the agreement will be in effect. The tenant can

continue to live in the rental unit as long as the

tenant continues to pay rent, and as long as the

landlord does not ask the tenant to leave.

In a periodic rental agreement, the length

of time between the rent payments (the rental

period) also establishes three things:

•

How often the tenant must pay rent;

•

The amount of advance notice that the tenant

must give the landlord, and that the landlord

must give the tenant, if either decides to

terminate (end) the tenancy; and

•

The amount of advance notice the landlord

must give the tenant if the landlord decides

to change the terms of the rental agreement

other than the rent.

(Special rules apply

50 Government Code Section 12980(b).

51 Civil Code Section 1944.

52 Civil Code Section 1944.

53 Civil Code Sections 1945, 1946, 1946.1.

54 Civil Code Sections 827(a), (b).

to the amount of advance notice that the

landlord must give the tenant to raise the rent

(see pages 31–33).)

Oral rental agreements

In an oral rental agreement, you and the

landlord agree orally (not in writing) that you

will rent the rental unit. In addition, you agree

to pay a speciﬁed rent for a speciﬁed period of

time —for example, a week or a month. This kind

of rental agreement is legally binding on both

you and the landlord, even though it is not in

writing unless a tenant and a landlord agree to

the lease of a rental unit for more than one year,

the agreement must be in writing.

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.)

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);

•

The landlord has agreed to pay any expenses

(for example, utilities or garbage removal) or to

provide any services (for example, a gardener).

Written rental agreements

A written rental agreement is a periodic rental

agreement that has been put in writing. The

written rental agreement speciﬁes all the terms

of the agreement between you and the landlord

—for example, it states the rent, the length of

time between rent payments, and the landlord’s

and your obligations. It may also contain clauses

on pets, late fees, and amount of notice.

The length of time between rent payments is

important. In most cases, the amount of advance

notice that the landlord gives you when notifying

you of changes in the terms of the tenancy must

be the same as the length of time between rent

payments. For example, if you have a month-to-

month rental agreement, the landlord usually

must give you 30 days’ advance written notice of

changes such as an increase in the charge for

parking or an increase in the security deposit.

In addition, the amount of advance written

notice that you give the landlord before you

move out of the rental unit must be the same as

the length of time between rent payments. For

example, in a month-to-month rental agreement,

you must give the landlord at least 30 days’

advance written notice in order to end the rental

agreement (see page 49–50). If you have a

week-to-week rental agreement, you must give

the landlord at least seven days’ advance written

notice in order to end the rental agreement.

Normally, the amount of advance written notice

that the landlord gives the tenant to change the

terms of the tenancy must be, at a minimum,

the same as the length of time between

rent payments. The landlord and tenant can

speciﬁcally agree in writing to a shorter amount

of notice (a shorter notice period).

A landlord

and a tenant who have a month-to-month rental

agreement might agree to 10 days’ advance

written notice for a change in the terms of the

55 Civil Code Section 1962(b).

56 Civil Code Sections 1091, 1624(a)(3).

57 Civil Code Section 827(a), 1946.

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.

If you have a written periodic rental agreement,

special rules apply to the amount of advance

notice that the landlord must give you to raise

the rent (see pages 31–33).

Leases

A lease states the total number of months that

the lease will be in effect—for example, six or 12

months. Most leases are in writing, although oral

leases are legal. If the lease is for more than one

year, it must be in writing.

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.

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.

If you become a tenant, the landlord must reach

an agreement with you, which must be in writing,

about who will pay for the shared utilities (see

page 22).

Rental units in older buildings may not have

separate water meters or submeters. California

law does not speciﬁcally regulate how landlords

bill tenants for water and sewer utilities. Ask the

58 Civil Code Section 827(a).

59 Civil Code Sections 1091, 1624(a)(3).

60 However, the tenant’s obligation to pay rent depends on the landlord’s living up to his or her obligations under the implied warranty of

habitability. See discussion of “Repairs and Habitability” (pages 36–40) and “Having Repairs Made” (pages 40–46).

61 Civil Code Section 1940.9, Public Utilities Code Section 739.5. See California Practice Guide, Landlord-Tenant, Paragraphs 2:170.1–

2:170.9 (Rutter Group 2011). See discussion of utilities billing in Moskovitz et al., California Landlord-Tenant Practice, Paragraph

4.41A-4.41E (Cal Cont. Ed. Bar 2011). There it is discussed that the California Public Utilities Commission (CPUC) has held that it has no

jurisdiction in the vast majority of landlord-tenant billing relationships. Because there is no direct regulation or guidance from the CPUC

or statute, it is important that all facets of the landlord-tenant billing relationship for utilities are agreed to in writing.

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.

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.

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.

wHen You Have decIded

to rent

Before you sign a rental agreement or a lease,

read it carefully so that you understand all of its

terms. What kind of terms should be in the rental

agreement or lease? Can the rental agreement or

lease limit the basic rights that the law gives to

all tenants? How much can the landlord require

you to pay as a security deposit? This section

answers these and other questions.

62 See discussion of utility billing in Moskovitz et al., California Landlord-Tenant Practice, Sections 4.41A-4.41E (Cal. Cont. Ed. Bar 2009).

There it is discussed that the California Public Utilities Commission (CPUC) has held that it has no jurisdiction in the vast majority of

landlord-tenant billing relationships. Because there is no direct regulation or guidance from the CPUC or statute, it is important that all

facets of the landlord-tenant billing relationship for utilities be agreed to in writing.

63 Civil Code Section 1632(b). The purpose of this law is to ensure that the Spanish-, Chinese-, Tagalog-, Vietnamese-, or Korean-speaking

person has a genuine opportunity to read the written translation of the proposed agreement that has been negotiated primarily in one of

these languages, and to consult with others, before signing the agreement.

64 Civil Code Section 1632(k). See Civil Code Section 1688 and following on rescission of contract.

WHAT THE RENTAL AGREEMENT OR LEASE

SHOULD INCLUDE

Most landlords use printed forms for their

leases and rental agreements. However, printed

forms may differ from each other. There is no

standard rental agreement or standard lease!

Therefore, carefully read and understand the

entire document before you sign it.

The written rental agreement or lease should

contain all of the promises that the landlord or

the landlord’s agent has made to you, and should

not contain anything that contradicts what the

landlord or the agent told you. If the lease or

rental agreement refers to another document,

such as “tenant rules and regulations,” get a

copy and read it before you sign the written

agreement.

Don’t feel rushed into signing. Make sure that

you understand everything that you’re agreeing to

by signing the rental agreement or lease. If you

don’t understand something, ask the landlord

to explain it to you. If you still don’t understand,

discuss the agreement with a friend, or with an

attorney, legal aid organization, tenant-landlord

program, or housing clinic.

Key terms

The written rental agreement or lease should

contain key terms, such as the following:

•

The names of the landlord and the tenant.

•

The address of the rental unit.

•

The amount of the rent.

•

When the rent is due, to whom it is to be paid,

and where it is to be paid.

•

The amount and purpose of the security

deposit (see pages 24–26).

•

The amount of any late charge or returned

check fee (see page 30).

•

Whether pets are allowed.

•

The number of people allowed to live in the

rental unit.

•

Whether attorney’s fees can be collected

from the losing party in the event of a lawsuit

between you and the landlord.

•

Who is responsible for paying utilities (gas,

electric, water, and trash collection).

•

If the rental is a house or a duplex with a yard,

who is responsible for taking care of the yard.

•

Any promises by the landlord to make repairs,

including the date by which the repairs will be

completed.

•

Other items, such as whether you can sublet

the rental unit (see page 35–36) and the

conditions under which the landlord can

inspect the rental unit (see pages 33–34).

In addition, the rental agreement or lease

must disclose:

•

The name, address, and telephone number of

the authorized manager of the rental property

and an owner (or an agent of the owner)

who is authorized to receive legal notices for

the owner. (This information can be posted

conspicuously in the building instead of being

disclosed in the rental agreement or lease.)

•

The name, address, and telephone number of

the person or entity to whom rent payments

must be made. If you may make your rent

payment in person, the agreement or lease

must state the usual days and hours that rent

may be paid in person. Or, the document may

state the name, street address, and account

number of the ﬁnancial institution where rent

payments may be made (if it is within ﬁve

miles of the unit) or information necessary

to establish an electronic funds transfer for

paying the rent.

65 Civil Code Section 1942.2. If your landlord is obligated to pay utilities and has failed to pay, you may take over a utility service account if

it is pending termination. This law requires utility service providers to give the termination of service notice in writing to the tenant in the

following languages: English, Spanish, Chinese, Tagalog, Vietnamese, and Korean. A tenant who has made a payment to a utility

pursuant to Section 777, 777.1, 10009, 10009.1, 12822, 12822.1, 16481, or 1648.1 of the Public Utilities Code may deduct the

payment from the rent.

•

The form in which rent payments must be

made (for example, by check or money

order).

(As a general rule, the landlord

cannot require that you make rent payments in

cash. (See pages 29–30.)

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.

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.

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.

sure that your copy shows the signature of the

owner or the owner’s agent, in addition to your

signature. Keep the document in a safe place.

66 Civil Code Section 1961-1962.7. See Muskovitz et al, California Landlord-Tenant Practice, Section 1.21A (Cal. Cont. Ed. Bar 2011);

California Practice Guide, Landlord-Tenant, Paragraphs 2:147-147.6 (Rutter Group 2011).

67 Civil Code Section 1947.3.

68 Civil Code Section 1962(b).

69 Civil Code Section 2079.10a, Penal Code Section 290.46. The required language differs depending on the date of the lease or rental

agreement. See Appendix 5.

69.1 Civil Code Section 1947.5.

69.2 Civil Code Section 1940.4.

70 Civil Code Section 1962(a)(4).

Continued on page 22

Alterations to Accommodate a Tenant With a Disability

A landlord must allow a tenant with a disability to make reasonable modiﬁcations to the

rental unit to the extent necessary to allow the tenant “full enjoyment of the premises.”

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.

71 Civil Code Section 54.1(b)(3)(A). See Examples of Unlawful Discrimination page 12.

72 Civil Code Section 54.1(b)(3)(A).

Tenant’s basic legal rights

Tenants have basic legal rights that are always

present, no matter what the rental agreement

or lease states. These rights include all of the

following:

•

Limits on the amount of the security deposit

that the landlord can require you to pay (see

pages 24–26).

•

Limits on the landlord’s right to enter the

rental unit (see pages 33–36).

•

The right to a refund of the security deposit,

or a written accounting of how it was used,

after you move (see pages 53–65).

•

The right to sue the landlord for violations of

the law or your rental agreement or lease.

•

The right to repair serious defects in the rental

unit and to deduct certain repair costs from

the rent, under appropriate circumstances

(see pages 41–42).

•

The right to withhold rent under appropriate

circumstances (see pages 43–45).

•

Rights under the warranty of habitability

(see pages 36–47).

•

Protection against retaliatory eviction (see

pages 79–80).

These and other rights will be discussed

throughout the rest of this booklet.

Landlord’s and tenant’s duty of

good faith and fair dealing

Every rental agreement and lease requires that

the landlord and tenant deal with each other fairly

and in good faith. Essentially, this means that

both the landlord and the tenant must treat each

other honestly and reasonably. This duty of good

faith and fair dealing is implied by law in every

rental agreement and every lease, even though

the duty probably is not expressly stated.

Shared utilities

If the utility meter for your rental unit is

shared with another unit or another part of the

building (see page 17), then the landlord must

reach an agreement with you on who will pay for

the shared utilities. This agreement must be in

writing (it can be part of the rental agreement or

lease), and can consist of one of the following

options:

•

The landlord can pay for the utilities provided

through the meter for your rental unit by

placing the utilities in the landlord’s name;

•

The landlord can have the utilities in the area

outside your rental unit put on a separate

meter in the landlord’s name; or

•

You can agree to pay for the utilities provided

through the meter for your rental unit to areas

outside your rental unit.

LANDLORD’S DISCLOSURES

Lead-based paint

If the rental unit was constructed before

1978, the landlord must comply with all of these

requirements:

•

The landlord must disclose the presence of

known lead-based paint and lead-based paint

hazards in the dwelling before the tenant signs

the lease or rental agreement. The landlord

also must give the tenant a copy of the federal

government’s pamphlet, “Protect Your Family

From Lead in Your Home” (available by calling

73 Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578 [22 Cal.Rptr.3d 832]. A typical legal description of the implied covenant of

good faith and fair dealing is that neither party will do anything that will injure the right of the other party to receive the beneﬁts of the

agreement. See the Andrews decision for a discussion of the closely related implied covenant of quiet enjoyment.

74 Civil Code Section 1940.9. This section also provides remedies for violations.

(800) 424-LEAD, or online at www.epa.gov/

lead/pubs/leadpdfe.pdf), before the tenant

signs the lease or rental agreement.

•

The landlord is not required to conduct any

evaluation of the lead-based paint, or to

remove it.

•

The lease or rental agreement must contain

a lead warning statement in legally-required

language.

•

The landlord also must give potential

tenants and tenants a written Disclosure of

Information on Lead-Based Paint and/or Lead-

Based Paint Hazards.

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.

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.)

Carcinogenic material

A landlord with 10 or more employees must

disclose the existence of known carcinogenic

material (for example, asbestos) to prospective

tenants.

Methamphetamine contamination

Residential property that has been used

for methamphetamine production may be

signiﬁcantly contaminated.

A local health ofﬁcer who inspects rental

property and ﬁnds that it is contaminated with a

hazardous chemical related to methamphetamine

laboratory activities must issue an order

prohibiting the use or occupancy of the property.

This order must be served on the property owner

and all occupants. The owner and all occupants

then must vacate the affected units until the

ofﬁcer sends the owner a notice that the property

requires no further action.

The owner must give written notice of the

health ofﬁcer’s order and a copy of it to potential

tenants who have completed an application to

rent the contaminated property. Before signing a

rental agreement, the tenant must acknowledge

in writing that he or she has received the notice

and order. The tenant may void (cancel) the rental

agreement if the owner does not does not comply

with these requirements. The owner must comply

with these requirements until he or she receives

75 California Practice Guide, Landlord-Tenant, Paragraphs 2:104.20-2:104.23 (Rutter Group 2011); 42 United States Code Sections

4851b, 4852d (this disclosure requirement does not apply to dwellings with zero bedrooms, or to housing for elderly or disabled persons

(unless a child younger than six is expected to live in the housing)); 24 Code of Federal Regulations Section 35.88; see Health and Safety

Code Section 17920.10 (dwellings that contain lead hazards).

76 24 Code of Federal Regulations Section 35.88.

77 24 Code of Federal Regulations Section 35.92. See Appendix 5.

78 Moskovitz et al., California Landlord-Tenant Practice, Section 1.29 (Cal. Cont. Ed. Bar 2011); 24 Code of Federal Regulations Sections

35.88, 35.92. The disclosure form is available at www.epa.gov/lead/pubs/lesr_eng.pdf and is reproduced in Appendix 5.

79 Business and Professions Code Section 8538, Civil Code Section 1940.8.

80 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 245-248 (NOLO Press 2011).

See also: Portman & Brown, California Tenants Rights, pages 184-198 (NOLO Press 2010).

81 Moskovitz et al., California Landlord-Tenant Practice, Section 1.29 (Cal. Cont. Ed. Bar 2011); Health and Safety Code Sections

25249.5-25249.13.

a notice from the health ofﬁcer that the property

requires no further action.

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.

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.

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.

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.

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.

83 Civil Code Section 1940.6.

84 Civil Code Section 1940.7.

85 Civil Code Section 1710.2.

86 Government Code Section 66459; California Practice Guide, Landlord-Tenant, Paragraphs 5:313.5-5:313.9 (Rutter Group 2011).

See Appendix 5 for the required language.

87 Civil Code Section 1950.5(b).

Under California law, a lease or rental

agreement cannot say that a security deposit

is nonrefundable.

This means that when the

tenancy ends, the landlord must return to you any

payment that is a security deposit, unless the

landlord properly uses the deposit for a lawful

purpose, as described on pages 26 and 53–65.

Almost all landlords charge tenants a security

deposit. The security deposit may be called last

month’s rent, security deposit, pet deposit, key

fee, or cleaning fee. The security deposit may be

a combination, for example, of the last month’s

rent plus a speciﬁc amount for security. No

matter what these payments or fees are called,

the law considers them all, as well as any other

deposit or charge, to be part of the security

deposit.

The one exception to this rule is

stated in the next paragraph.

The law allows the landlord to require a

tenant to pay an application screening fee, in

addition to the security deposit (see page 10).

The application screening fee is not part of the

security deposit. However, any other fee charged

by the landlord at the beginning of the tenancy

to cover the landlord’s costs of processing a new

tenant is part of the security deposit.

Here are

examples of the two kinds of fees:

•

Application screening fee—A landlord might

charge you an application screening fee

to cover the cost of obtaining information

about you, such as checking your personal

references and obtaining your credit report

(see page 10). The application screening fee

is not part of the security deposit. Therefore,

it is not refundable as part of the security

deposit.

•

New tenant processing fee—A landlord might

charge you a fee to reimburse the landlord for

the costs of processing you as a new tenant.

For example, at the beginning of the tenancy,

the landlord might charge you for providing

application forms, listing the unit for rent,

interviewing and screening you, and similar

purposes. These kinds of fees are part of the

security deposit.

Therefore, these fees are

refundable as part of the security deposit,

unless the landlord properly uses the deposit

for a lawful purpose, as described on pages

24 and 53–65.

The law limits the total amount that the

landlord can require you to pay as a security

deposit. The total amount allowed as security

depends on whether the rental unit is

unfurnished or furnished and whether you have

a waterbed.

•

Unfurnished rental unit: The total amount that

the landlord requires as security cannot be

more than the amount of two months’ rent. If

you have a waterbed, the total amount allowed

as security can be up to two-and-a-half times

the monthly rent.

•

Furnished rental unit: The total amount that

the landlord requires as security cannot be

more than the amount of three months’ rent.

If you have a waterbed, the total amount

allowed as security can be up to three-and-a-

half times the monthly rent.

•

Plus ﬁrst month’s rent: The landlord can

require you to pay the ﬁrst month’s rent in

addition to the security deposit.

The landlord normally cannot require that you

pay the security deposit in cash. (See page 29.)

88 Civil Code Section 1950.5(m); Portman and Brown, California Tenants’ Rights, page 235 (NOLO Press 2010).

89 Civil Code Section 1950.5(b).

90 Civil Code Sections 1950.5(b), 1950.6.

91 Civil Code Section 1950.5(b).

92 Civil Code Section 1950.5(b).

93 Civil Code Section 1950.5(c). These limitations do not apply to long-term leases of at least six months, in which advance payment of six

months’ rent (or more) may be charged. Civil Code Section 1940.5 sets the limits on security deposits when the tenant has a waterbed or

water-ﬁlled furniture. The section also allows the landlord to charge a reasonable fee to cover the landlord’s administrative costs.

Security deposit example: Suppose that you

have agreed to rent an unfurnished apartment

for $500 a month. Before you move in, the

landlord can require you to pay up to two

times the amount of the monthly rent as a

security deposit ($500 x 2 = $1,000). The

landlord also can require you to pay the ﬁrst

month’s rent of $500, plus an application

screening fee of up to $42.41, in addition to

the $1,000 security deposit. This is because

the ﬁrst month’s rent and the application

screening fee are not part of the security

deposit.

Suppose that the landlord has required you to

pay a $1,000 security deposit (the maximum

allowed by law for an unﬁnished unit when the

rent is $500 a month). The landlord cannot

also demand, for example, a $200 cleaning

deposit, a $15 key deposit, or a $50 fee to

process you as a new tenant. The landlord

cannot require any of these extra fees

because the total of all deposits then would

be more than the $1,000 allowed by law when

the rent is $500 a month.

Suppose that you ask the landlord to make

structural, decorative or furnishing alterations

to the rental unit, and that you agree to pay a

speciﬁc amount for the alterations. This amount

is not subject to the limits on the amount of the

security deposit discussed on pages 24–25,

and is not part of the security deposit. Suppose,

however, that the alterations that you have

requested involve cleaning or repairing damage

for which the landlord may charge the previous

tenant’s security deposit. In that situation, the

amount that you pay for the alterations would

be subject to the limits on the amount of the

security deposit and would be part of the

security deposit.

A payment that is a security deposit cannot be

nonrefundable.

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.

Deductions from security

deposits are discussed in detail on pages

53–65.

Make sure that your rental agreement or

lease clearly states that you have paid a security

deposit to the landlord and correctly states the

amount that you have paid. The rental agreement

or lease should also describe the circumstances

under which the landlord can keep part or all of

the security deposit. Most landlords will give you

a written receipt for all amounts that you pay as

a security deposit. Keep your rental agreement or

lease in case of a dispute.

THE INVENTORY CHECKLIST

You and the landlord or the landlord’s agent

should ﬁll out the Inventory Checklist on pages

107–110 (or one like it). It’s best to do this

94 Civil Code Section 1950.5(c).

95 Civil Code Section 1950.5(m).

96 Civil Code Section 1950.5(b),(e).

97 Civil Code Section 1950.5(o) (describes evidence that proves the existence and amount of a security deposit).

before you move in, but it can be done two

or three days later, if necessary. You and the

landlord or agent should walk through the rental

unit together and note the condition of the items

included in the checklist in the “Condition Upon

Arrival” section.

Both of you should sign and date the

checklist, and both of you should keep a copy

of it. Carefully completing the checklist at

the beginning of the tenancy will help avoid

disagreements about the condition of the unit

when you move out. See additional suggestions

about the Inventory Checklist on page 107.

RENTER’S INSURANCE

Renter’s insurance protects the tenant’s

personal property from losses caused by ﬁre or

theft. It also protects a tenant against liability

(legal responsibility) for many claims or lawsuits

ﬁled by the landlord or others alleging that the

tenant has negligently (carelessly) injured another

person or damaged the person’s property.

Renter’s insurance usually only protects the

policyholder. It would not protect the roommate’s

personal property; in order to be protected, the

roommate must take out his or her own policy.

Carelessly causing a ﬁre that destroys the

rental unit or another tenant’s property is an

example of negligence for which you could be

held legally responsible.

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.

Renter’s insurance may not be available in

every area. If renter’s insurance is available, and

if you choose to purchase it, be certain that it

provides the protection you want and is fairly

priced. You should check with more than one

insurance company, since the price and type

of coverage may differ widely among insurance

companies. The price also will be affected by

how much insurance protection you decide to

purchase.

Your landlord probably has insurance that

covers the rental unit or dwelling, but you

shouldn’t assume that the landlord’s insurance

will protect you. If the landlord’s insurance

company pays the landlord for a loss that you

cause, the insurance company may then sue you

to recover what it has paid the landlord.

If you want to use a waterbed, the landlord can

require you to have a waterbed insurance policy

to cover possible property damage.

100

RENT CONTROL

Some California cities have rent control

ordinances that limit or prohibit rent

increases.

101

Some of these ordinances specify

procedures that a landlord must follow before

increasing a tenant’s rent, or that make evicting

a tenant more difﬁcult for a landlord. Each

community’s ordinance is different.

For example, some ordinances allow landlords

to evict tenants only for “just cause.” Under

these ordinances, the landlord must state and

prove a valid reason for terminating a month-

to-month tenancy. Other cities don’t have this

requirement.

Some cities have boards that have the power

to approve or deny increases in rent. Other cities’

ordinances allow a certain percentage increase

in rent each year. Because of recent changes

in State law, all rent control cities now have

“vacancy decontrol.” This means that the landlord

can re-rent a unit at the market rate when the

tenant moves out voluntarily or when the landlord

terminates the tenancy for nonpayment of rent.

98 In general, every person is responsible for damages sustained by someone else as a result of the person’s carelessness.

(Civil Code Section 1714).

99 See discussion of renter’s insurance in Portman and Brown, California Tenants’ Rights, pages 313-314 (NOLO Press 2010).

100 Civil Code Section 1940.5(a).

101 See list of rent control cities in Appendix 2 on page 90.

Some ordinances make it more difﬁcult for

owners to convert rentals into condominiums.

Some kinds of property cannot be subject to

local rent control. For example, property that was

issued a certiﬁcate of occupancy after February

1995 is exempt from rent control. Beginning

January 1, 1999, tenancies in single family

homes and condos are exempt from rent control

if the tenancy began after January 1, 1996.

102

A rent control ordinance may change the

landlord-tenant relationship in other important

ways besides those described here. Find out if

you live in a city with rent control. (See the list

of cities with rent control in Appendix 2.) Contact

your local housing ofﬁcials or rent control board

for information. You can ﬁnd out about the rent

control ordinance in your area (if there is one) at

your local law library,

103

or by requesting a copy

of your local ordinance from the city or county

clerk’s ofﬁce. Some cities post information about

their rent control ordinances on their Web site

(for example, information about Los Angeles’ rent

control ordinance is available at www.lacity.org/

lahd).

lIvIng In tHe rental unIt

As a tenant, you must take reasonable care of

your rental unit and any common areas that you

use. You must also repair all damage that you

cause, or that is caused by anyone for whom you

are responsible, such as your family, guests, or

pets.

104

These important tenant responsibilities

are discussed in more detail under “Dealing with

Problems,” pages 36–47.

This section discusses other issues that can

come up while you’re living in the rental unit. For

example, can the landlord enter the rental unit

without notifying you? Can the landlord raise the

rent even if you have a lease? What can you do if

you have to move before the end of the lease?

PAYING THE RENT

When is rent due?

Most rental agreements and leases require

that rent be paid at the beginning of each rental

period. For example, in a month-to-month tenancy,

rent usually must be paid on the ﬁrst day of the

month. However, your lease or rental agreement

can specify any day of the month as the day that

rent is due (for example, the 10th of every month

in a month-to-month rental agreement, or every

Tuesday in a week-to-week rental agreement).

As explained on page 19, the rental agreement

or lease must state the name and address of

the person or entity to whom you must make

rent payments. If this address does not accept

personal deliveries, you can mail your rent

payment to the owner at the stated name and

address. If you can show proof that you mailed

the rent to the stated name and address (for

example, a receipt for certiﬁed mail), the law

assumes that the rent is receivable by the owner

on the date of postmark.

105

It’s very important for you to pay your rent on

the day it’s due. Not paying on time might lead

to a negative entry on your credit report,

106

late

fees (see page 30), and even eviction (see pages

67–71).

102 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, page 81 and Appendix C (NOLO

Press 2011); and Civil Code Section 1954.52.

103 For example, see the discussions in Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities,

Appendix C (NOLO Press 2011) and California Practice Guide, Landlord-Tenant, Chapter 5 (Rutter Group 2011).

104 Civil Code Sections 1929, 1941.2.

105 Civil Code Section 1962(f).

106 If the landlord intends to report negative credit information about the tenant to a credit bureau, the landlord must disclose this intent to

the tenant. The landlord must give notice to the tenant, either before reporting the information, or within 30 days after reporting it. The

landlord may personally deliver the notice to the tenant or send it to the tenant by ﬁrst-class mail. The notice may be in the rental agree-

ment. (Civil Code Section 1785.26; Moskovitz et al., California Landlord-Tenant Practice, Sections 1.29, 4.9 (Cal. Cont. Ed. Bar 2011).

Check or cash?

The landlord or landlord’s agent normally

cannot require you to pay rent in cash. However,

the landlord or agent can require you to pay rent

in cash if, within the last three months, you have

paid the landlord or agent with a check that has

been dishonored by the bank. (A dishonored

check is one that the bank returns without paying

because you stopped payment on it or because

your account did not have enough money in it.)

In order to require you to pay rent in cash,

the landlord must ﬁrst give you a written notice

stating that your check was dishonored and that

you must pay cash for the period of time stated

by the landlord. This period cannot be more than

three months after you:

•

ordered the bank to stop payment on the

check, or

•

attempted to pay with a check that the

bank returned to the landlord because of

insufﬁcient funds in your account.

The landlord must attach a copy of the

dishonored check to the notice. If the notice

changes the terms of your rental agreement,

the landlord must give you the proper amount of

advance notice (see pages 15–17).

107

These same rules apply if the landlord

requests that you pay the security deposit in

cash.

Example: Suppose that you have a month-to-

month rental agreement and that your rent is

due on the ﬁrst of the month. Suppose that

the rental agreement does not specify the

form of rent payment (check, cash, money

order, etc.) or the amount of notice required

to change the terms of the agreement (see

pages 15–17).

On April 1, you give your landlord your rent

check for April. On April 11, your landlord

receives a notice from his bank stating that

your check has been dishonored because you

did not have enough money in your account.

On April 12, the landlord hands you a notice

stating that your check was dishonored and

that you must pay rent in cash for the next

three months. What are your rights and

obligations under these facts? What are the

landlord’s rights and obligations?

Unfortunately, the law that allows the landlord

to require cash payments does not clearly

answer these questions. The following is

based on a fair interpretation of the law.

The requirement that you pay rent in cash

changes the terms of your rental agreement

and takes effect in 30 days (on May 12). This

is because under your rental agreement, the

landlord must give you 30 days’ notice of

changes in it. (See pages 15–17.) Therefore,

you could pay your May 1 rent payment by

check. However, this might cause the landlord

to serve you with a 30-day notice to end the

tenancy (see pages 67-68). The requirement

that you pay rent in cash continues for three

months after the landlord received the notice

that your check was dishonored (through July

10). You would have to pay your June 1 and

July 1 rent payments in cash, if the tenancy

continues. What about your April 1 rent check

that was returned by the landlord’s bank? As

a practical matter, you should make the check

good immediately. If you don’t, the landlord

can serve you with a three-day notice, which

is the ﬁrst step in an action to evict you (see

pages 67–71).

108

107 Civil Code Section 1947.3. Waiver of these provisions is void and unenforceable.

108 See discussion of late fees and dishonored check fees, pages 29–30. Paying by check with knowledge that the account has insufﬁcient

funds and with intent to defraud is a crime. (Penal Code Section 476a.).

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

you pay with a check, you can use the canceled

check as a receipt. Keep the receipts or canceled

checks so that you will have records of your

payments in case of a dispute.

Late fees and dishonored check fees

A rental agreement cannot include a pre-

determined late fee. The exception to this rule is

when it would be difﬁcult to ﬁgure out the actual

cost to the landlord caused by the late rent

payment. Even then, the pre-determined late fee

should not be more than a reasonable estimate

of costs that the landlord will face as a result of

the late payment. A late fee that is so high that

it amounts to a penalty is not legally valid.

110

Additionally, in some communities, late fees

are limited by local rent control ordinances. (See

“Rent Control,” pages 27–28.)

What if you’ve signed a lease or rental

agreement that contains a late-fee provision,

and you’re going to be late for the ﬁrst time

paying your rent? If you have a good reason for

being late (for example, your paycheck was late),

explain this to your landlord. Some landlords

will waive (forgive) the late fee if there is a

good reason for the rent being late, and if the

tenant has been responsible in other ways. If the

landlord isn’t willing to forgive or lower the late

fee, ask the landlord to justify it (for example,

in terms of administrative costs for processing

the payment late). However, if the late fee is

reasonable, it probably is valid; you will have

to pay it if your rent payment is late, and if the

landlord insists.

The landlord also can charge the tenant a fee

if the tenant’s check for the rent (or any other

payment) is dishonored by the tenant’s bank. (A

dishonored check is often called a “bounced”

or “NSF” or “returned” check.) In order for the

landlord to charge the tenant a returned check

fee, the lease or rental agreement must authorize

the fee, and the amount of the fee must be

reasonable.

For example, a reasonable returned check

fee would be the amount that the bank charges

the landlord, plus the landlord’s reasonable

costs because the check was returned.

Under California’s “bad check” statute, the

landlord can charge a service charge instead

of the dishonored check fee described in this

paragraph. The service charge can be up to $25

for the ﬁrst check that is returned for insufﬁcient

funds, and up to $35 for each additional

check.

111

Partial rent payments

You will violate your lease or rental agreement

if you don’t pay the full amount of your rent on

time. If you can’t pay the full amount on time,

you may want to offer to pay part of the rent.

However, the law allows your landlord to take the

partial payment and still give you an eviction

notice.

112

109 Civil Code Section 1499.

110 See Harbor Island Holdings, LLC v. Kim (2003) 107 Cal.App.4th 790 [132 Cal.Rptr.2d 406] (liquidated damages provision unenforce-

able because it bore no reasonable relationship to range of actual damages parties could have anticipated); Orozco v. Casimiro (2004)

121 Cal.App.4th Supp. 7 [17 Cal.Rptr.3d 175] (late fee invalid because landlord failed to establish that damages for late payment of

rent were extremely difﬁcult to ﬁx).

111 Civil Code Section 1719(a)(1). Advance disclosure of the amount of the service charge is a nearly universal practice, but is not explicitly

required by Section 1719. The landlord cannot collect both a dishonored check fee and a service charge. The landlord loses the right to

collect the service charge if the landlord seeks the treble damages that are authorized by the “bad check” law. (Civil Code

Section 1719).

112 Code of Civil Procedure Section 1161 paragraph 2.

If your landlord is willing to accept a partial

rent payment and give you extra time to pay the

balance, it’s important that you and the landlord

agree on the details in writing. The written

agreement should state the amount of rent that

you have paid, the date by which the rest of the

rent must be paid, the amount of any late fee

that is due, and the landlord’s agreement not

to evict you if you pay the amount due by that

date. Both you and the landlord should sign the

agreement, and you should keep a copy. Such an

agreement is legally binding.

SECURITY DEPOSIT INCREASES

Whether the landlord can increase the

amount of the security deposit after you move in

depends on what the lease or rental agreement

says, and how much of a security deposit you

have paid already.

If you have a lease, the security deposit

cannot be increased unless increases are

permitted by the terms of the lease.

In a periodic rental agreement (for example,

a month-to-month agreement), the landlord can

increase the security deposit unless this is

prohibited by the agreement. The landlord must

give you proper notice before increasing the

security deposit. (For example, 30 days’ advance

written notice normally is required in a month-to-

month rental agreement.)

However, if the amount that you have already

paid as a security deposit equals two times the

current monthly rent (for an unfurnished unit)

or three times the current monthly rent (for a

furnished unit), then your landlord can’t increase

the security deposit, no matter what the rental

agreement says. (See the discussion of the limits

on security deposits, pages 24–26.) Local rent

control ordinances may also limit increases in

security deposits.

The landlord must give you proper advance

written notice of any increase in the security

deposit. (See “Proper Service of Notices,”

page 71.)

The landlord normally cannot require that you

pay the security deposit increase in cash.

(See page 29.)

RENT INCREASES

How often can rent be raised?

If you have a lease for more than 30 days, your

rent cannot be increased during the term of the

lease, unless the lease allows rent increases.

If you have a periodic rental agreement,

your landlord can increase your rent, but the

landlord must give you proper advance notice in

writing. The written notice tells you how much the

increased rent is and when the increase goes

into effect.

California law guarantees you at least 30 days’

advance written notice of a rent increase if you

have a month-to-month (or shorter) periodic

rental agreement.

Under the law, your landlord must give you at

least 30 days’ advance notice if the rent increase

is 10 percent (or less) of the rent charged at

any time during the 12 months before the rent

increase takes effect. Your landlord must give

you at least 60 days’ advance notice if the rent

increase is greater than 10 percent.

113

In order

to calculate the percentage of the rent increase,

you need to know the lowest rent that your

landlord charged you during the preceding 12

months, and the total of the new increase and all

other increases during that period.

113 Civil Code Section 827(b). Longer notice periods apply if required, for example, by statute, regulation or contract. (Civil Code Section

827(c).) Tenants in Section 8 housing must be given at least 30 days’ written notice of a greater-than-10-percent rent increase if the

increase is caused by a change in the tenant’s income or family composition, as determined by the local housing authority’s recertiﬁca-

tion. (Civil Code Section 827(b)(3)).

Examples: Assume that your current rent is

$500 per month due on the ﬁrst of the month

and that your landlord wants to increase your rent

$50 to $550 beginning this June 1. To see how

much notice your landlord must give you, count

back 12 months to last June.

30 days’ notice required: Suppose that

your rent was $500 last June 1. Here’s how to

calculate the percentage of the rent increase

and the amount of notice that the landlord must

give you:

Your landlord therefore must give you at

least 30 days’ advance written notice of the

rent increase.

60 days’ notice required: Suppose that your

rent was $475 last June 1, and that your landlord

raised your rent $25 to $500 last November.

Here’s how to calculate the percentage of the

rent increase and the amount of notice that the

landlord must give you:

Your landlord therefore must give you at

least 60 days’ advance written notice of the

rent increase.

Now suppose that your rent was $500 last

June 1, but that instead of increasing your rent

$50, your landlord wants to increase your rent

$75 to $575 beginning this June 1. Here’s how

to calculate the percentage of the rent increase

and the amount of notice that the landlord must

give you:

Your landlord therefore must give you at least

60 days’ advance written notice of the rent

increase.

Normally, in the case of a periodic rental

agreement, the landlord can increase the rent

as often as the landlord likes. However, the

landlord must give proper advance written notice

of the increase, and the increase cannot be

retaliatory (see pages 79–80). Local rent control

ordinances may impose additional requirements

on the landlord.

Increases in rent for government-ﬁnanced

housing usually are restricted. If you live in

government-ﬁnanced housing, check with the

local public housing authority to ﬁnd out whether

there are any restrictions on rent increases.

Rent increase; notice and effective date

A landlord’s notice of rent increase must be

in writing. The landlord can deliver a copy of the

notice to you personally.

114

In this case, the

rent increase takes effect in 30 or 60 days, as

just explained.

114 Civil Code Section 827(b)(1)(A).

10% of

rent last

June 1

Amount

of rent

increase

Compared

10%

rent

$500 rent

x .10

$50

is the

same

$50 $50

10% of

rent last

June 1

Amount

of rent

increase

Compared

10%

rent

$475 rent

x .10

$47.50

is more

than

$75 $47.50

$25

+$50

10% of

rent last

June 1

Amount

of rent

increase

Compared

10%

rent

$500

rent x .10

$50

is more

than

$75 $50

The landlord also can give you a notice of

rent increase by ﬁrst class mail. In this case,

the landlord must mail a copy of the notice to

you, with proper postage, addressed to you

at the rental unit. The landlord must give you

an additional ﬁve days’ advance notice of the

rent increase if the landlord mails the notice.

Therefore, the landlord would have to give you at

least 35 days’ notice from the date of mailing if

the rent increase is 10 percent or less. If the rent

increase is more than 10 percent, the landlord

would have to give you at least 65 days’ notice

from the date of mailing.

115

Example of a rent increase

Most notices of rent increase state that the

increase will go into effect at the beginning of

the rental period. For example, a landlord who

wishes to increase the rent by 10 percent or less

in a month-to-month rental effective on October

1 must make sure that notice of the increase is

delivered to the tenant personally by September

1 or mailed to the tenant by August 27. However,

a landlord can make the increase effective at any

time in the month if proper advance notice

is given.

If the increase in the rent becomes effective

in the middle of the rental period, the landlord is

entitled to receive the increased rent for only the

last half of the rental period. For example:

•

Rental period: month-to-month, from the ﬁrst

day of the month to the last day of the month.

•

Rent: $500 per month.

•

Rent increase: $50 (from $500 to $550) per

month (a 10 percent increase).

•

Date that the notice of rent increase is

delivered to the tenant personally: April 15

(that is, the middle of the month).

•

Earliest date that the rent increase can take

effect: May 15.

If the landlord delivers the notice on April 15,

the increase becomes effective 30 days later, on

May 15. The landlord is entitled to the increased

rent beginning on May 15. On May 1, the tenant

would pay $250 for the ﬁrst half of May (that is,

15 days at the old rent of $500), plus $275 for

the last half of May (that is, 15 days at the new

rent of $550). The total rent for May that is due

on May 1 would be $525. Looking at it another

way, the landlord is entitled to only one-half of the

increase in the rent during May, since the notice

of rent increase became effective in the middle

of the month.

Of course, the landlord could deliver a notice

of rent increase on April 15 which states that

the rent increase takes effect on June 1. In that

case, the tenant would pay $500 rent on May 1,

and $550 rent on June 1.

WHEN CAN THE LANDLORD

ENTER THE RENTAL UNIT?

California law states that a landlord can enter

a rental unit only for the following reasons:

•

In an emergency.

•

When the tenant has moved out or has

abandoned the rental unit.

•

To make necessary or agreed-upon

repairs, decorations, alterations, or other

improvements.

•

To show the rental unit to prospective tenants,

purchasers, or lenders, to provide entry to

contractors or workers who are to perform

work on the unit, or to conduct an initial

inspection before the end of the tenancy

(see Initial Inspection sidebar, pages 55–58).

115 Civil Code Section 827(b)(1)(B)(2),(3).

•

If a court order permits the landlord to

enter.

116

•

If the tenant has a waterbed, to inspect

the installation of the waterbed when

the installation has been completed, and

periodically after that to assure that the

installation meets the law’s requirements.

117

The landlord or the landlord’s agent must

give the tenant reasonable advance notice in

writing before entering the unit, and can enter

only during normal business hours (generally,

8 a.m. to 5 p.m. on weekdays). The notice

must state the date, approximate time and

purpose of entry.

118

However, advance written

notice is not required under any of the following

circumstances:

•

To respond to an emergency.

•

The tenant has moved out or has abandoned

the rental unit.

•

The tenant is present and consents to the

entry at the time of entry.

•

The tenant and landlord have agreed that the

landlord will make repairs or supply services,

and have agreed orally that the landlord

may enter to make the repairs or supply

the services. The agreement must include

the date and approximate time of entry,

which must be within one week of the oral

agreement.

119

The landlord or agent may use any one of

the following methods to give the tenant written

notice of intent to enter the unit. The landlord or

agent may:

•

Personally deliver the notice to the tenant; or

•

Leave the notice at the rental unit with a

person of suitable age and discretion (for

example, a roommate or a teenage member of

the tenant’s household); or

•

Leave the notice on, near or under the unit’s

usual entry door in such a way that it is likely

to be found; or

•

Mail the notice to the tenant.

120

The law considers 24 hours’ advance written

notice to be reasonable in most situations.

If the notice is mailed to the tenant,

mailing at least six days before the intended

entry is presumed to be reasonable, in most

situations.

121

The tenant can consent to shorter

notice and to entry at times other than during

normal business hours.

Special rules apply if the purpose of the entry

is to show the rental to a purchaser. In that case,

the landlord or the landlord’s agent may give

the tenant notice orally, either in person or by

telephone. The law considers 24 hours’ notice

to be reasonable in most situations. However,

before oral notice can be given, the landlord or

agent must ﬁrst have notiﬁed the tenant in writing

that the rental is for sale and that the landlord

or agent may contact the tenant orally to arrange

to show it. This written notice must be given to

the tenant within 120 days of the oral notice. The

oral notice must state the date, approximate time

and purpose of entry.

122

The landlord or agent

may enter only during normal business hours,

unless the tenant consents to entry at a different

116 Civil Code Section 1954(a)(4).

117 Civil Code Section 1940.5(f).

118 Civil Code Section 1954(b),(d)(1).

119 Civil Code Section 1954(d), (e).

120 Civil Code Section 1954(d)(1).

121 Civil Code Section 1954(d)(1).

122 Civil Code Section 1954(d)(2); see Moskovitz et al., California Landlord-Tenant Practice, Section 3.3 (Cal. Cont. Ed. Bar 2011).

time.

123

When the landlord or agent enters the

rental, he or she must leave written evidence of

entry, such as a business card.

124

The landlord cannot abuse the right of

access allowed by these rules, or use this right

of access to harass (repeatedly disturb) the

tenant.

125

Also, the law prohibits a landlord from

signiﬁcantly and intentionally violating these

access rules to attempt to inﬂuence the tenant to

move from the rental unit.

126

If your landlord violates these access rules,

talk to the landlord about your concerns. If that

is not successful in stopping the landlord’s

misconduct, send the landlord a formal letter

asking the landlord to strictly observe the access

rules stated above. If the landlord continues to

violate these rules, you can talk to an attorney

or a legal aid organization, or ﬁle suit in small

claims court to recover damages that you have

suffered due to the landlord’s misconduct. If the

landlord’s violation of these rules was signiﬁcant

and intentional, and the landlord’s purpose was

to inﬂuence you to move from the rental unit, you

can sue the landlord in small claims court for a

civil penalty of up to $2,000 for each violation.

127

SUBLEASES AND ASSIGNMENTS

Sometimes, a tenant with a lease may need

to move out before the lease ends, or may need

help paying the rent. In these situations, the

tenant may want to sublease the rental unit or

assign the lease to another tenant. However, the

tenant cannot sublease the rental unit or assign

the lease unless the terms of the lease allow the

tenant to do so.

Subleases

A sublease is a separate rental agreement

between the original tenant and a new tenant

who moves in temporarily (for example, for the

summer), or who moves in with the original

tenant and shares the rent. The new tenant is

called a subtenant.

With a sublease, the agreement between

the original tenant and the landlord remains in

force. The original tenant is still responsible for

paying the rent to the landlord, and functions

as a landlord to the subtenant. Any sublease

agreement between a tenant and a subtenant

should be in writing.

Most rental agreements and leases contain a

provision that prohibits (prevents) tenants from

subleasing or assigning rental units. This kind

of provision allows the landlord to control who

rents the rental unit. If your rental agreement or

lease prohibits subleases or assignments, you

must get your landlord’s permission before you

sublease or assign the rental unit.

Even if your rental agreement doesn’t contain

a provision that prohibits you from subleasing

or assigning, it’s wise to discuss your plans

with your landlord in advance. Subleases and

assignments usually don’t work out smoothly

unless everyone has agreed in advance.

You might use a sublease in two situations.

In the ﬁrst situation, you may have a larger

apartment or house than you need, and may want

help paying the rent. Therefore, you want to rent

a room to someone. In the second situation, you

may want to leave the rental unit for a certain

period and return to it later. For example, you may

be a college student who leaves the campus area

for the summer and returns in the fall. You may

want to sublease to a subtenant who will agree

to use the rental unit only for that period of time.

Under a sublease agreement, the subtenant

agrees to make payments to you, not to

the landlord. The subtenant has no direct

123 Civil Code Section 1954(b).

124 Civil Code Section 1954(d)(2).

125 Civil Code Section 1954(c).

126 Civil Code Section 1940.2(a)(4).

127 Civil Code Section 1940.2(b).

responsibility to the landlord, only to you. The

subtenant has no greater rights than you do

as the original tenant. For example, if you have

a month-to-month rental agreement, so does

the subtenant. If your rental agreement does

not allow you to have a pet, then the subtenant

cannot have a pet.

In any sublease situation, it’s essential

that both you and the subtenant have a clear

understanding of both of your obligations. To help

avoid disputes between you and the subtenant,

this understanding should be put in the form of

a written sublease agreement that both you and

the subtenant sign.

The sublease agreement should include

things like the amount and due date of the rent,

where the subtenant is to send the rent, who

is responsible for paying the utilities (typically,

gas, electric, water, trash, and telephone), the

dates that the agreement begins and ends, a

list of any possessions that you are leaving in

the rental unit, and any conditions of care and

use of the rental unit and your possessions. It’s

also important that the sublease agreement be

consistent with the lease, so that your obligations

under the lease will be fully performed by the

subtenant, if that is what you and the subtenant

have agreed on.

Assignments

An assignment is a transfer of your rights

as a tenant to someone else. You might use

an assignment if you have a lease and need to

move permanently before the lease ends. Like a

sublease, an assignment is a contract between

the original tenant and the new tenant (not

the landlord).

However, an assignment differs from a

sublease in one important way. If the new

tenant accepts the assignment, the new tenant

is directly responsible to the landlord for the

payment of rent, for damage to the rental unit,

and so on. Nevertheless, an assignment does

not relieve the original tenant of his or her legal

obligations to the landlord. If the new tenant

doesn’t pay rent, or damages the rental unit, the

original tenant remains legally responsible to the

landlord.

128

In order for the original tenant to avoid this

responsibility, the landlord, the original tenant,

and the new tenant all must agree that the new

tenant will be solely responsible to the landlord

under the assignment. This agreement is called a

novation, and should be in writing.

Remember: Even if the landlord agrees to

a sublease or assignment, the tenant is still

responsible for the rental unit unless there is

a written agreement (a novation) that states

otherwise. For this reason, think carefully about

whom you let live in the rental unit.

dealIng wItH ProBleMs

Most landlord-tenant relationships go

smoothly. However, problems sometimes do

arise. For example, what if the rental unit’s

furnace goes out in the middle of the winter?

What happens if the landlord sells the building

or decides to convert it into condominiums?

This section discusses these and other possible

issues and problems in the landlord-tenant

relationship.

REPAIRS AND HABITABILITY

A rental unit must be ﬁt to live in; that is, it

must be habitable. In legal terms, “habitable”

means that the rental unit is ﬁt for occupation

by human beings and that it substantially

complies with state and local building and health

codes that materially affect tenants’ health and

safety.

129

128 Civil Code Section 822.

129 Green v. Superior Court (1974) 10 Cal.3d 616, 637-638 [111 Cal.Rptr. 704, 719]; Civil Code Sections 1941, 1941.1.

California law makes landlords and tenants

each responsible for certain kinds of repairs,

although landlords ultimately are legally

responsible for assuring that their rental units

are habitable.

Landlord’s responsibility for repairs

Before renting a rental unit to a tenant, a

landlord must make the unit ﬁt to live in, or

habitable. Additionally, while the unit is being

rented, the landlord must repair problems

that make the rental unit unﬁt to live in, or

uninhabitable.

The landlord has this duty to repair because

of a California Supreme Court case, called

Green v. Superior Court,

130

which held that all

residential leases and rental agreements contain

an implied warranty of habitability. Under the

“implied warranty of habitability,” the landlord is

legally responsible for repairing conditions that

seriously affect the rental unit’s habitability.

131

That is, the landlord must repair substantial

defects in the rental unit and substantial

failures to comply with state and local building

and health codes.

132

However, the landlord is

not responsible under the implied warranty of

habitability for repairing damages that were

caused by the tenant or the tenant’s family,

guests, or pets.

133

Generally, the landlord also must do

maintenance work which is necessary to keep

the rental unit liveable.

134

Whether the landlord

or the tenant is responsible for making less

serious repairs is usually determined by the

rental agreement.

The law is very speciﬁc as to what kinds of

conditions make a rental uninhabitable. These

are discussed in the following pages.

Tenant’s responsibility for repairs

Tenants are required by law to take reasonable

care of their rental units, as well as common

areas such as hallways and outside areas.

Tenants must act to keep those areas clean

and undamaged. Tenants also are responsible

for repair of all damage that results from their

neglect or abuse, and for repair of damage

caused by anyone for whom they are responsible,

such as family, guests, or pets.

135

Tenants’

responsibilities for care and repair of the rental

unit are discussed in detail on pages 39–40.

Conditions that make a rental unit

legally uninhabitable

There are many kinds of defects that could

make a rental unit unlivable. The implied warranty

of habitability requires landlords to maintain their

rental units in a condition ﬁt for the “occupation

of human beings.”

136

In addition, the rental unit

must “substantially comply” with building and

housing code standards that materially affect

tenants’ health and safety.

137

A rental unit may be considered uninhabitable

(unlivable) if it contains a lead hazard that

endangers the occupants or the public, or is

a substandard building because, for example,

a structural hazard, inadequate sanitation, or

a nuisance endangers the health, life, safety,

property, or welfare of the occupants or the

public.

138

130 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704].

131 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704]; Hinson v. Delis (1972) 26 Cal.App.3d 62 [102 Cal.Rptr. 661].

132 Green v. Superior Court (1974) 10 Cal.3d 616, 637-638 [111 Cal.Rptr. 704, 718-719].

133 Civil Code Sections 1929, 1941.2.

134 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704].

135 Civil Code Sections 1929, 1941.2.

136 Civil Code Section 1941.

137 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704].

138 Civil Code Section 1941.1 paragraph 1, Health and Safety Code Sections 17920.3, 17920.10.

A dwelling also may be considered

uninhabitable (unlivable) if it substantially lacks

any of the following:

139

•

Effective waterprooﬁng and weather protection

of roof and exterior walls, including unbroken

windows and doors.

•

Plumbing facilities in good working order,

including hot and cold running water,

connected to a sewage disposal system.

•

Gas facilities in good working order.

•

Heating facilities in good working order.

•

An electric system, including lighting, wiring,

and equipment, in good working order.

•

Clean and sanitary buildings, grounds, and

appurtenances (for example, a garden or

a detached garage), free from debris, ﬁlth,

rubbish, garbage, rodents, and vermin.

•

Adequate trash receptacles in good repair.

•

Floors, stairways, and railings in good repair.

In addition to these requirements, each rental

unit must have all of the following:

•

A working toilet, wash basin, and bathtub or

shower. The toilet and bathtub or shower must

be in a room which is ventilated and allows

privacy.

•

A kitchen with a sink that cannot be made of

an absorbent material such as wood.

•

Natural lighting in every room through windows

or skylights. Windows in each room must be

able to open at least halfway for ventilation,

unless a fan provides mechanical ventilation.

•

Safe ﬁre or emergency exits leading to a street

or hallway. Stairs, hallways, and exits must be

kept litter-free. Storage areas, garages, and

basements must be kept free of combustible

materials.

140

•

Operable dead bolt locks on the main entry

doors of rental units, and operable locking or

security devices on windows.

141

•

Working smoke detectors in all units of

multi-unit buildings, such as duplexes and

apartment complexes. Apartment complexes

also must have smoke detectors in common

stairwells.

142

•

A locking mail box for each unit. The mail box

must be consistent with the United States

Postal Service standards for apartment

housing mail boxes.

143

•

Ground fault circuit interrupters for swimming

pools and antisuction protections for wading

pools in apartment complexes and other

residential settings (but not single family

residences).

144

The implied warranty of habitability is not

violated merely because the rental unit is not

in perfect, aesthetically pleasing condition. Nor

139 Civil Code Section 1941.1.

140 Health and Safety Code Sections 17900-17995; California Landlord’s Law Book: Rights and Responsibilities, page 186 (NOLO Press

2011).

141 Civil Code Section 1941.3. See this section for additional details and exemptions. Remedies for violation of these requirements are listed

at Civil Code Section 1941.3(c). See California Practice Guide, Landlord-Tenant, Paragraphs 3:21.5-3:21.10 (Rutter Group 2011).

142 Health and Safety Code 13113.7.

143 Health and Safety Code Section 17958.3; Civil Code Section 1941.1(i).

144 Health and Safety Code Sections 116049.1, 116064.

is the implied warranty of habitability violated if

there are minor housing code violations, which,

standing alone, do not affect habitability.

145

While it is the landlord’s responsibility

to install and maintain the inside wiring for

one telephone jack, it is unclear whether the

landlord’s failure to do so is a breach of the

implied warranty of habitability.

146

An authoritative reference book suggests

two additional ways in which the implied

warranty of habitability may be violated. The

ﬁrst is the presence of mold conditions in

the rental unit that affect the livability of the

unit or the health and safety of tenants. The

second follows from a new law that imposes

obligations on a property owner who is notiﬁed

by a local health ofﬁcer that the property is

contaminated by methamphetamine. (See page

23.) This reference book suggests that a tenant

who is damaged by this kind of documented

contamination may be able to claim a breach of

the implied warranty of habitability.

147

Limitations on landlord’s duty

to keep the rental unit habitable

Even if a rental unit is unlivable because of

one of the conditions listed above, a landlord

may not be legally required to repair the condition

if the tenant has not fulﬁlled the tenant’s own

responsibilities.

In addition to generally requiring a tenant

to take reasonable care of the rental unit and

common areas (see page 37), the law lists

speciﬁc things that a tenant must do to keep the

rental unit liveable.

Tenants must do all of the following:

•

Keep the premises “as clean and sanitary as

the condition of the premises permits.”

•

Use and operate gas, electrical, and plumbing

ﬁxtures properly. (Examples of improper use

include overloading electrical outlets; ﬂushing

large, foreign objects down the toilet; and

allowing any gas, electrical, or plumbing ﬁxture

to become ﬁlthy.)

•

Dispose of trash and garbage in a clean and

sanitary manner.

•

Not destroy, damage, or deface the premises,

or allow anyone else to do so.

•

Not remove any part of the structure, dwelling

unit, facilities, equipment, or appurtenances,

or allow anyone else to do so.

•

Use the premises as a place to live, and use

the rooms for their intended purposes. For

example, the bedroom must be used as a

bedroom, and not as a kitchen.

148

•

Notify the landlord when dead bolt locks and

window locks or security devices don’t operate

properly.

149

However, a landlord may agree in writing to

clean the rental unit and dispose of the trash.

150

If a tenant violates these requirements in

some minor way, the landlord is still responsible

for providing a habitable dwelling, and may be

prosecuted for violating housing code standards.

If the tenant fails to do one of these required

things, and the tenant’s failure has either

substantially caused an unlivable condition to

occur or has substantially interfered with the

145 Green v. Superior Court (1974) 10 Cal.3d 616, 637-638 [111 Cal.Rptr. 704, 718-719]; Hinson v. Delis (1972) 26 Cal.App.3d 62, 70

[102 Cal.Rptr. 661, 666].

146 Civil Code Section 1941.4; Public Utilities Code Section 788. See California Practice Guide, Landlord-Tenant, Paragraph 3:21.10

(Rutter Group 2011).

147 Moskovitz et al., California Landlord-Tenant Practice, Section 3.11B (Cal. Cont. Ed. Bar 2011); see Health and Safety Code Sections

25400.10-25400.46, effective January 1, 2006.

148 Civil Code Section 1941.2(a)(5).

149 Civil Code Section 1941.3(b).

150 Civil Code Section 1941.2(b).

landlord’s ability to repair the condition, the

landlord does not have to repair the condition.

151

However, a tenant cannot withhold rent or has

no action against the landlord for violating the

implied warranty of habitability if the tenant has

failed to meet these requirements.

152

Responsibility for other kinds of repairs

As for less serious repairs, the rental

agreement or lease may require either the tenant

or the landlord to ﬁx a particular item. Items

covered by such an agreement might include

refrigerators, washing machines, parking places,

or swimming pools. These items are usually

considered “amenities,” and their absence does

not make a dwelling unit unﬁt for living.

These agreements to repair are usually

enforceable in accordance with the intent of the

parties to the rental agreement or lease.

153

Tenant’s agreement to make repairs

The landlord and the tenant may agree in

the rental agreement or lease that the tenant

will perform all repairs and maintenance in

exchange for lower rent.

154

Such an agreement

must be made in good faith: there must be a

real reduction in the rent, and the tenant must

intend and be able to make all the necessary

repairs. When negotiating the agreement, the

tenant should consider whether he or she wants

to try to negotiate a cap on the amount that he

or she can be required to spend making repairs.

Regardless of any such agreement, the landlord

is responsible for maintaining the property as

required by state and local housing codes.

155

HAVING REPAIRS MADE

If a tenant believes that his or her rental

unit needs repairs, and that the landlord is

responsible for the repairs under the implied

warranty of habitability, the tenant should

notify the landlord. Since rental units typically

are business investments for landlords, most

landlords want to keep them safe, clean,

attractive, and in good repair.

It’s best for the tenant to notify the landlord of

damage or defects by both a telephone call and

a letter. The tenant should speciﬁcally describe

the damage or defects and the required repairs

in both the phone call and the letter. The tenant

should date the letter and keep a copy to show

that notice was given and what it said. If the

tenant gives notice to the landlord by e-mail or

fax, the tenant should follow up with a letter.

(See pages 45–46.)

The tenant should send the letter to the

landlord, manager, or agent by certiﬁed mail with

return receipt requested. Sending the notice

by certiﬁed mail is not required by law, but is a

very good idea. Or, the tenant (or a friend) may

personally deliver the notice to the landlord,

manager, or agent and ask for a receipt to

show that the notice was received. The tenant

should keep a copy of the notice and the receipt,

or some other evidence that the notice was

delivered. (See “Giving the landlord notice,”

pages 45–46.)

If the landlord doesn’t make the requested

repairs, and doesn’t have a good reason for not

doing so, the tenant may have one of several

151 Civil Code Section 1941.2(a).

152 Civil Code Section 1929, 1942(c); see Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights

& Responsibilities, pages 188-189 (NOLO Press 2011).

153 Portman and Brown, California Tenants’ Rights, page 30 (NOLO Press 2010).

154 Civil Code Section 1942.1.

155 Portman and Brown, California Tenants’ Rights, page 20 (NOLO Press 2010).

remedies, depending on the seriousness of the

repairs. These remedies are discussed in the

rest of this section. Each of these remedies has

its own risks and requirements, so the tenant

should use them carefully.

The “repair and deduct” remedy

The “repair and deduct” remedy allows a

tenant to deduct money from the rent, if those

repairs would not cost more than one month’s

rent, to pay for repair of defects in the rental

unit.

156

This remedy covers substandard

conditions that affect the tenant’s health and

safety, and that substantially breach the implied

warranty of habitability.

157

(See discussion of the

implied warranty of habitability, pages 36–39.)

Examples might include a leak in the roof during

the rainy season, no hot running water, or a gas

leak.

As a practical matter, the repair and deduct

remedy allows a tenant to make needed repairs

of serious conditions without ﬁling a lawsuit

against the landlord. Because this remedy

involves legal technicalities, it’s a good idea

for the tenant to talk to a lawyer, legal aid

organization, or tenants’ association before

proceeding.

The basic requirements and steps for using

the repair and deduct remedy are as follows:

1. The defects must be serious and directly

related to the tenant’s health and safety.

158

2. The repairs cannot cost more than one

month’s rent.

3. The tenant cannot use the repair and deduct

remedy more than twice in any 12-month

period.

4. The tenant or the tenant’s family, guests, or

pets must not have caused the defects that

require repair.

5. The tenant must inform the landlord, either

orally or in writing, of the repairs that are

needed. (See “Giving the landlord notice,”

pages 45–46.)

6. The tenant must give the landlord a

reasonable period of time to make the

needed repairs.

•

What is a reasonable period of time? This

depends on the defects and the types of

repairs that are needed. The law usually

considers 30 days to be reasonable,

but a shorter period may be considered

reasonable, depending on the situation.

For example, if the furnace is broken and

it’s very cold outdoors, two days may be

considered reasonable (assuming that a

qualiﬁed repair person is available within

that time period).

7. If the landlord doesn’t make the repairs within

a reasonable period of time, the tenant may

either make the repairs or hire someone to do

them. The tenant may then deduct the cost of

the repairs from the rent when it is due. The

tenant should keep all receipts for the repairs.

•

It’s a good idea, but not a legal requirement,

for the tenant to give the landlord a written

notice that explains why the tenant hasn’t

paid the full amount of the rent. The tenant

should keep a copy of this notice.

Risks: The defects may not be serious enough

to justify using the repair and deduct remedy. In

that event, the landlord can sue the tenant to

recover the money deducted from the rent, or can

ﬁle an eviction action based on the nonpayment

156 Civil Code Section 1942.

157 California Practice Guide, Landlord-Tenant, Paragraphs 3:115-3:116 (Rutter Group 2011).

158 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 189-190 (NOLO Press 2011).

of rent. If the tenant deducted money for repairs

not covered by the remedy, or didn’t give the

landlord proper advance notice or a reasonable

time to make repairs, the court can order the

tenant to pay the full rent even though the tenant

paid for the repairs, or can order that the eviction

proceed.

The landlord may try to evict the tenant or

raise the rent because the tenant used the repair

and deduct remedy. This kind of action is known

as a “retaliatory eviction” (see pages 79–80).

The law prohibits this type of eviction, with some

limitations.

159

The “abandonment” remedy

Instead of using the repair and deduct

remedy, a tenant can abandon (move out of) a

defective rental unit. This remedy is called the

“abandonment” remedy. A tenant might use the

abandonment remedy where the defects would

cost more than one month’s rent to repair,

160

but this is not a requirement of the remedy. The

abandonment remedy has most of the same

requirements and basic steps as the repair and

deduct remedy.

161

In order to use the abandonment remedy, the

rental unit must have substandard conditions

that affect the tenant’s health and safety, and

that substantially breach the implied warranty

of habitability.

162

(See discussion of the implied

warranty of habitability, pages 37–39.) If the

tenant uses this remedy properly, the tenant is

not responsible for paying further rent once he or

she has abandoned the rental unit.

163

The basic requirements and steps for lawfully

abandoning a rental unit are:

1. The defects must be serious and directly

related to the tenant’s health and safety.

164

2. The tenant or the tenant’s family, guests, or

pets must not have caused the defects that

require repair.

3. The tenant must inform the landlord, either

orally or in writing, of the repairs that are

needed. (See “Giving the landlord notice,”

pages 45–46.)

4. The tenant must give the landlord a

reasonable period of time to make the needed

repairs.

•

What is a reasonable period of time?

This depends on the defects and the

types of repairs that are needed. The

law usually considers 30 days to be

reasonable, but a shorter period may be

considered reasonable, depending on the

circumstances. For example, if tree roots

block the main sewer drain and none of the

toilets or drains work, a reasonable period

might be as little as one or two days.

5. If the landlord doesn’t make the repairs within

a reasonable period of time, the tenant should

notify the landlord in writing of the tenant’s

reasons for moving and then actually move

out. The tenant should return all the rental

unit’s keys to the landlord. The notice should

be mailed or delivered as explained in “Giving

the landlord notice,” pages 45--46. The tenant

should keep a copy of the notice.

•

It’s a good idea, but not a legal requirement,

for the tenant to give the landlord written

notice of the tenant’s reasons for moving

out. The tenant’s letter may discourage

the landlord from suing the tenant to

collect additional rent or other damages. A

written notice also documents the tenant’s

reasons for moving, which may be helpful

159 Civil Code Section 1942.5(a).

160 California Practice Guide, Landlord-Tenant, Paragraph 3:127 (Rutter Group 2011).

161 Civil Code Section 1942.

162 California Practice Guide, Landlord-Tenant, Paragraph 3:115-3:116, 3:126 (Rutter Group 2011).

163 Civil Code Section 1942.

164 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, page 189 (NOLO Press 2011).

in the event of a later lawsuit. If possible,

the tenant should take photographs or a

video of the defective conditions or have

local health or building ofﬁcials inspect

the rental unit before moving. The tenant

should keep a copy of the written notice and

any inspection reports and photographs or

videos.

Risks: The defects may not affect the tenant’s

health and safety seriously enough to justify

using the remedy. The landlord may sue the

tenant to collect additional rent or damages.

The “rent withholding” remedy

A tenant may have another option for getting

repairs made—the “rent withholding” remedy.

By law, a tenant is allowed to withhold (stop

paying) some or all of the rent if the landlord

does not ﬁx serious defects that violate

the implied warranty of habitability.

165

(See

discussion of the implied warranty of habitability,

pages 36–39.) In order for the tenant to withhold

rent, the defects or repairs that are needed must

be more serious than would justify use of the

repair and deduct and abandonment remedies.

The defects must be substantial—they must be

serious ones that threaten the tenant’s health or

safety.

166

The defects that were serious enough to justify

withholding rent in Green v. Superior Court

167

are

listed below as examples:

•

Collapse and nonrepair of the bathroom

ceiling.

•

Continued presence of rats, mice, and

cockroaches.

•

Lack of any heat in four of the apartment’s

rooms.

•

Plumbing blockages.

•

Exposed and faulty wiring.

•

An illegally installed and dangerous stove.

In the Green case, all of these defects were

present, and there also were many violations of

the local housing and building codes. In other

situations, the defects that would justify rent

withholding may be different, but the defects

would still have to be serious ones that threaten

the tenant’s health or safety.

In order to prove a violation of the implied

warranty of habitability, the tenant will need

evidence of the defects that require repair. In

the event of a court action, it is helpful to have

photographs or videos, witnesses, and copies of

letters informing the landlord of the problem.

Before the tenant withholds rent, it is a good

idea to check with a legal aid organization, lawyer,

housing clinic, or tenant program to help determine

if rent withholding is the appropriate remedy.

The basic requirements and steps for using

the rent withholding remedy are:

1. The defects or the repairs that are needed

must threaten the tenant’s health or safety.

168

•

The defects must be serious enough to

make the rental unit uninhabitable. For

example, see the defects described in the

discussion of the Green case above.

2. The tenant, or the tenant’s family, guests, or

pets must not have caused the defects that

require repair.

3. The tenant must inform the landlord either

orally or in writing of the repairs that are

needed. (See “Giving the landlord notice,”

pages 45–46.)

165 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704].

166 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 190-191 (NOLO Press 2011).

167 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704]. See Hyatt v. Tedesco (2002) 96 Cal.App.4th Supp. 62

[117 Cal.Rptr.2d 921] for additional examples of substantial defects that violated the implied warranty of habitability.

168 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, page 190 (NOLO Press 2011).

4. The tenant must give the landlord a

reasonable period of time to make the repairs.

•

What is a reasonable period of time? This

depends on the defects and the type of

repairs that are needed.

5. If the landlord doesn’t make the repairs within

a reasonable period of time, the tenant can

withhold some or all of the rent. The tenant

can continue to withhold the rent until the

landlord makes the repairs.

•

How much rent can the tenant withhold?

While the law does not provide a clear

test for determining how much rent is

reasonable for the tenant to withhold,

judges in rent withholding cases often

use one of the following methods. These

methods are offered as examples.

Percentage reduction in rent: The

percentage of the rental unit that is

uninhabitable is determined, and the rent

is reduced by that amount. For example,

if one of a rental unit’s four rooms is

uninhabitable, the tenant could withhold 25

percent of the rent. The tenant would have

to pay the remaining 75 percent of the rent.

Most courts use this method.

Reasonable value of rental unit: The value

of the rental unit in its defective state is

determined, and the tenant withholds that

amount. The tenant would have to pay the

difference between the rental unit’s fair

market value (usually the rent stated in the

rental agreement or lease) and the rental

unit’s value in its defective state.

169

6. The tenant should save the withheld rent

money and not spend it. The tenant should

expect to have to pay the landlord some or all

of the withheld rent.

•

If the tenant withholds rent, the tenant

should put the withheld rent money into

a special bank account (called an escrow

account). The tenant should notify the

landlord in writing that the withheld rent

money has been deposited in the escrow

account, and explain why.

Depositing the withheld rent money in an

escrow account is not required by law, but is a

very good thing to do for three reasons.

First, as explained under “Risks” on page

45, rent withholding cases often wind up in

court. The judge usually will require the tenant

to pay the landlord some reduced rent based

on the value of the rental unit with all of its

defects. Judges rarely excuse payment of all

rent. Depositing the withheld rent money in an

escrow account assures that the tenant will have

the money to pay any “reasonable rent” that the

court orders. The tenant will have to pay the rent

ordered by the court ﬁve days (or less) from the

date of the court’s judgment.

Second, putting the withheld rent money in

an escrow account proves to the court that the

tenant didn’t withhold rent just to avoid paying

rent. If there is a court hearing, the tenant should

bring rental receipts or other evidence to show

that he or she has been reliable in paying rent in

the past.

Third, most legal aid organizations and

lawyers will not represent a tenant who has

not deposited the withheld rent money in an

escrow account.

Sometimes, the tenant and the landlord will

be able to agree on the amount of rent that is

reasonable for the time when the rental unit

needed repairs. If the tenant and the landlord

can’t agree on a reasonable amount, the dispute

169 See discussion in Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, page 191

(NOLO Press 2011), Portman and Brown, California Tenants’ Rights, pages 137-138 (NOLO Press 2010), and California Practice

Guide, Landlord-Tenant, Paragraph 3:140-3:142 (Rutter Group 2011).

will have to be decided in court, or resolved in

an arbitration or mediation proceeding (see

page 82).

Risks: The defects may not be serious enough

to threaten the tenant’s health or safety. If the

tenant withholds rent, the landlord may give the

tenant an eviction notice (a three-day notice

to pay the rent or leave). If the tenant refuses

to pay, the landlord will probably go to court to

evict the tenant. In the court action, the tenant

will have to prove that the landlord violated the

implied warranty of habitability.

170

If the tenant wins the case, the landlord will

be ordered to make the repairs, and the tenant

will be ordered to pay a reasonable rent. The rent

ordinarily must be paid ﬁve days or less from the

date of the court’s judgment. If the tenant wins,

but doesn’t pay the amount of rent ordered when

it is due, the judge will enter a judgment for the

landlord, and the tenant probably will be evicted.

If the tenant loses, he or she will have to pay the

rent, probably will be evicted, and may be ordered

to pay the landlord’s attorney’s fees.

There is another risk of using rent withholding:

if the tenant doesn’t have a lease, the landlord

may ignore the tenant’s notice of defective

conditions and seek to remove the tenant by

giving him or her a 30-day or 60-day notice

to move. This may amount to a “retaliatory

eviction” (see pages 79–80).

171

The law

prohibits retaliatory evictions, with some

limitations.

172

Giving the landlord notice

Whenever a tenant gives the landlord notice

of the tenant’s intention to repair and deduct,

withhold rent, or abandon the rental unit, it’s best

to put the notice in writing. The notice should

be in the form of a letter, and can be typed or

handwritten. The letter should describe in detail

the problem and the repairs that are required.

The tenant should sign and date the letter and

keep a copy.

173

The tenant might be tempted to send the

notice to the landlord by e-mail or fax. The laws

on repairs specify that the tenant may give the

landlord notice orally or in writing, but do not

mention e-mail or fax. To be certain that the

notice complies with the law, the tenant should

follow up any e-mailed or faxed notice with a

letter describing the damage or defects and the

required repairs.

The letter should be sent to the landlord,

manager, or agent by certiﬁed mail (return receipt

requested). Sending the letter by certiﬁed mail

is not required by law, but is a very good idea.

Or, the tenant (or a friend) may personally deliver

the notice to the landlord, manager, or agent. The

tenant should ask for a signed and dated receipt

showing that the notice was received, or ask the

landlord to date and sign (or initial) the tenant’s

copy of the letter to show that the landlord

received the notice. Whatever the method of

delivery, it’s important that the tenant have proof

that the landlord, or the landlord’s manager or

agent, received the notice.

The copy of the letter and the receipt will be

proof that the tenant notiﬁed the landlord, and

also proof of what the notice said. Keep the copy

of the letter and the receipt in case of a dispute

with the landlord.

The landlord or agent may call the tenant to

discuss the request for repairs or to schedule

a time to make them. It’s a good idea for the

tenant to keep notes of any conversations and

phone calls about the request for repairs. During

each conversation or immediately after it, the

170 Depending on the facts, the tenant may be entitled to a rebuttable presumption that the landlord has breached the implied warranty

of habitability. (Civil Code Section 1942.3.) This presumption affects the burden of producing evidence.

171 Moskovitz, California Eviction Defense Manual, Section 16.19 (Cal. Cont. Ed. Bar 2011).

172 Civil Code Section 1942.5(a).

173 Moskovitz, California Landlord-Tenant Practice, Section 3.13 (Cal. Cont. Ed. Bar 2011). See Civil Code Section 1942(a).

tenant should write down the date and time of

the conversation, what both parties said, and the

date and time that the tenant made the notes.

Important: Neither the tenant nor the landlord

can tape record a telephone conversation without

the other party’s permission.

174

Tenant information

An occupant of residential property can

invite another person onto the property during

reasonable hours, or because of emergency

circumstances, to provide information about

tenants’ rights or to participate in a tenants’

association or an association that advocates

tenants’ rights. The invited person cannot be

held liable for trespass.

175

Lawsuit for damages as a remedy

The remedies of repair and deduct,

abandonment, and rent withholding allow a

tenant in a rental unit with serious habitability

defects to take action against the landlord

without ﬁling a lawsuit. Arbitration and mediation

are other methods of resolving disputes about

the condition of a rental unit (see page 82).

A tenant has another option: ﬁling a lawsuit

against the landlord to recover money damages

if the landlord does not repair serious defects

in the rental unit in a timely manner.

176

This

kind of lawsuit can be ﬁled in small claims court

or Superior Court, depending on the amount

demanded in the suit.

177

The tenant can ﬁle this

kind of lawsuit without ﬁrst trying another remedy,

such as the repair and deduct remedy.

If the tenant wins the lawsuit, the court may

award the tenant his or her actual damages, plus

“special damages” in an amount ranging from

$100 to $5,000.

178

“Special damages” are

costs that the tenant incurs, such as the cost of

a motel room, because the landlord did not repair

defects in the rental unit. The party who wins

the lawsuit is entitled to recover his or her costs

of bringing the suit (for example, court costs),

plus reasonable attorney’s fees as awarded by

the court.

179

The court also may order the landlord to abate

(stop or eliminate) a nuisance and to repair

any substandard condition that signiﬁcantly

affects the health and safety of the tenant.

180

For example, a court could order the landlord to

repair a leaky roof, and could retain jurisdiction

over the case until the roof is ﬁxed.

In order for a tenant to win such a lawsuit

against the landlord, all of the following

conditions must be met:

181

•

The rental unit has a serious habitability

defect. That is, the rental unit contains a

lead hazard that endangers the occupants or

the public; or substantially lacks any of the a

nuisance endangers the health, life, safety,

property, or welfare of the occupants or the

public; and

•

A housing inspector has inspected the

minimum requirements for habitability listed in

the eight categories on page 38; or has been

declared substandard because, for example,

174 Penal Code Section 632.

175 Civil Code Section 1942.6. A tenants’ association does not have a right under the California Constitution’s free speech clause to

distribute its newsletter in a privately owned apartment complex. (Golden Gateway Center v. Golden Gateway Tenants Assoc. (2001)

26 Cal. 4th 1013 [111 Cal. Rptr. 2d 336]).

176 Civil Code Section 1942.4.

177 One reference book cautions against a tenant litigating implied warranty of habitability issues in small claims court because collateral

estoppel precludes an issue decided there from being relitigated. Moskovitz et al., California Landlord-Tenant Practice, Sections 5.16,

5.39 (Cal. Cont. Ed. Bar 2006), citing Pitzen v. Superior Court (2004) 120 Cal. App. 4th 1374 [16 Cal. Rptr. 3d 628].

178 Civil Code Section 1942.4(b)(1).

179 Civil Code Section 1942.4(b)(2), Code of Civil Procedure Section 1174.2.

180 Civil Code Section 1942.4(a),(c).

181 Civil Code Section 1942.4(a). See Health & Safety Code Sections 17920.3, 17920.10.

a structural hazard, inadequate sanitation,

or premises and has given the landlord or

the landlord’s agent written notice of the

landlord’s obligation to repair the substandard

conditions or abate the nuisance; and

•

The nuisance or substandard conditions

continue to exist 35 days after the housing

inspector mailed the notice to the landlord or

agent, and the landlord does not have good

cause for failing to make the repairs; and

•

The nuisance or substandard conditions were

not caused by the tenant or the tenant’s

family, guests, or pets; and

•

The landlord collects or demands rent, issues

a notice of rent increase, or issues a three-day

notice to pay rent or quit (see pages 68–69)

after all of the above conditions have

been met.

To prepare for ﬁling this kind of lawsuit, the

tenant should take all of these basic steps:

•

The tenant should notify the landlord in writing

about the conditions that require repair. (See

“Giving the landlord notice,” pages 45–46.)

The rental unit must have serious habitability

defects that were not caused by the tenant’s

family, guests, or pets.

•

The notice should speciﬁcally describe the

defects and the repairs that are required.

•

The notice should give the landlord a

reasonable period of time to make the repairs.

•

If the landlord doesn’t make the repairs within

a reasonable time, the tenant should contact

the local city or county building department,

health department, or local housing agency

and request an inspection.

•

The housing inspector must inspect the

rental unit.

•

The housing inspector must give the landlord

or the landlord’s agent written notice of the

repairs that are required.

•

The substandard conditions must continue

to exist 35 days after the housing inspector

mailed the notice to the landlord or landlord’s

agent. The landlord then must collect or

demand rent, raise the rent, or serve a three-

day notice to pay rent or quit.

•

The tenant should gather evidence of

the substandard conditions (for example,

photographs or videos, statements of

witnesses, inspection reports) so that the

tenant can prove his or her case in court.

•

The tenant should discuss the case with a

lawyer, legal aid organization, tenant program,

or housing clinic in order to understand what

the lawsuit is likely to accomplish, and also

the risks involved.

182

Resolving complaints out of court

Before ﬁling suit, the tenant should try to

resolve the dispute out of court, either through

personal negotiation or a dispute resolution

program that offers mediation or arbitration

of landlord-tenant disputes. If the tenant and

the landlord agree, a neutral person can work

with both of them to reach a solution. Informal

dispute resolution can be inexpensive and fast.

(See “Arbitration and Mediation,” pages 82–83.)

Please see page 45 regarding legal requirements

for notices.

LANDLORD’S SALE OF THE RENTAL UNIT

If your landlord voluntarily sells the rental unit

that you live in, your legal rights as a tenant are

not changed. Tenants who have a lease have

the right to remain through the end of the lease

under the same terms and conditions. The new

landlord can end a periodic tenancy (for example,

182 Civil Code Section 1942.4, which gives the tenant the right to sue the landlord as described in this section, also can be used defensively.

If the landlord brings an unlawful detainer action against the tenant based on nonpayment of rent, and the court ﬁnds that the land-

lord has violated all of the ﬁve conditions listed in the bullets on this page, the landlord is liable for the tenant’s attorneys fees and costs

of suit, as determined by the court. (Code of Civil Procedure Section 1174.21).

a month-to-month tenancy), but only after giving

the tenant the required advance notice. (See

“Landlord’s notice to end a periodic tenancy,”

pages 50–52.)

The sale of the building doesn’t change the

rights of the tenants to have their security

deposits refunded when they move. Pages

63–65 discuss the landlord’s responsibility for

the tenants’ security deposits after the rental

unit has been sold.

When property is sold in foreclosure

State law provides that a tenant in possession

of a rental housing unit at the time a property is

sold in foreclosure shall be given 60 days’ written

notice to quit before the tenant may be removed

from the property.

183

However, if your lease was

signed before the deed of trust or mortgage was

recorded, your lease will not be set aside by the

foreclosure.

184

Federal law now requires that you be given

90 days’ written notice to quit (leave the

property). Under the 2009 “Protecting Tenants at

Foreclosure Act,” a buyer of foreclosed property

must honor your lease until the end of the lease

term, unless the buyer will be moving in and

using the property as the buyer’s home.

184.1

that case, you are entitled to 90 days’ notice to

quit.

184.2

This is also true if you are a month-to-

month tenant. The Act creates similar protections

for tenants with Section 8 vouchers. This rule

does not apply to rental agreements that were

not the result of arm’s length transactions or

where the rent is much less than fair market rent

for that property.

184.3

California recognizes that tenants of units sold

in foreclosure now have a right to this 90-day

notice under federal law. Speciﬁcally, any notice

to quit served within one year after a foreclosure

sale must also inform renters that they may stay

in the unit for at least 90-days.

184.4

CONDOMINIUM CONVERSIONS

A landlord who wishes to convert rental

property into condominiums must obtain approval

from the local city or county planning agency.

The landlord also must receive ﬁnal approval in

the form of a public report issued by the State

Department of Real Estate. Affected tenants

must receive notices at various stages of the

application and approval process.

185

These

notices are designed to allow affected tenants

and the public to have a voice in the approval

process.

186

Tenants can check with local elected

ofﬁcials or housing agencies about the approval

process and opportunities for public input.

Perhaps most important, affected tenants

must be given written notice of the conversion

to condominiums at least 180 days before their

tenancies end due to the conversion.

187

Affected

tenants also must be given a ﬁrst option to buy

the rental unit on the same terms that are being

offered to the general public (or better terms).

The tenants must be able to exercise this right

for at least 90 days following issuance of the

Department of Real Estate’s public report.

188

183 Code of Civil Procedure 1161b(a) This notice requirement shall remain in effect only until Januaury 1, 2013, and as of that date will be

repealed unless a later enacted statute that is enacted before January 1, 2013, deletes or extends that date.

184 Portman and Brown, California Tenants Rights, pages 4-5 (NOLO Press 2010).

184.1 Public Law 111-22, 2009 S896, Title VII, Section 702.

184.2 Public Law 111-22, 2009 S896, Title VII, Section 702.

184.3 Public Law 111-203, 2009-2010 H.R. 4173, Section 1484.

184.4 California Code of Civil Procedure Section 1161c.

185 Government Code Section 66427.1(a),(b).

186 Government Code Sections 66451.3, 65090, 65091.

187 Government Code Section 66427.1(c).

188 Government Code Section 66427.1, 66427.1(a)2F. See Business and Professions Code Sections 11018, 11018.2, California Practice

Guide, Landlord-Tenant, Paragraph 5:306 and following (Rutter Group 2011).

DEMOLITION OF DWELLING

The owner of a dwelling must give written

notice to current tenants before applying for a

permit to demolish the dwelling. The owner also

must give this notice to tenants who have signed

rental agreements but who have not yet moved

in. (See page 24.) The notice must include

the earliest approximate dates that the owner

expects the demolition to occur and the tenancy

to end.

189

INFLUENCING THE TENANT TO MOVE

California law protects a tenant from

retaliation by the landlord because the tenant

has lawfully exercised a tenant right (see pages

79–-80). California law also makes it unlawful

for a landlord to attempt to inﬂuence a tenant to

move by doing any of the following:

•

Engaging in conduct that constitutes theft or

extortion.

•

Using threats, force, or menacing conduct that

interferes with the tenant’s quiet enjoyment

of the rental unit. (The conduct must be of a

nature that would create the fear of harm in a

reasonable person.)

•

Committing a signiﬁcant and intentional

violation of the rules limiting the landlord’s

right to enter the rental unit (see pages

33–35).

190

A landlord does not violate the law by giving

a tenant a warning notice, in good faith, that the

tenant’s or a guest’s conduct may violate the

lease, rental agreement, rules or laws. The notice

may be oral or in writing. The law also allows

a landlord to give a tenant an oral or written

explanation of the lease, rental agreement, rules

or laws in the normal course of business.

191

If a landlord engages in unlawful behavior

as described above, the tenant may sue the

landlord in small claims court or Superior Court.

If the tenant prevails, the court may award him

or her a civil penalty of up to $2,000 for each

violation.

192

Keep in mind, however, that a

lawsuit is not always a good solution. If you are

faced with actions such as described above, try

to assess the situation realistically. You may want

to discuss the situation with a trusted friend,

a tenant advisor, or a lawyer who represents

tenants. If you are convinced that you cannot

work things out with the landlord, then consider

your legal remedies.

MovIng out

GIVING AND RECEIVING PROPER NOTICE

Tenant’s notice to end a periodic tenancy

To end a periodic rental agreement (for

example, a month-to-month agreement), you must

give your landlord proper written notice before

you move.

You must give the landlord the same amount

of notice as there are days between rent

payments.

193

This means that if you pay rent

monthly, you must give the landlord written notice

at least 30 days before you move. If you pay rent

every week, you must give the landlord written

notice at least seven days before you move.

194

This is true even if the landlord has given you a

60-day notice to end the rental agreement and

you want to leave sooner (see discussion, page

48).

195

If your rental agreement speciﬁes a different

amount of notice (for example 10 days), you must

189 Civil Code Section 1940.6.

190 Civil Code Section 1940.2(a).

191 Civil Code Section 1940.2(c).

192 Civil Code Section 1940.2(b).

193 Civil Code Section 1946.

194 Civil Code Section 1946.

195 Civil Code Section 1946.1(e).

give the landlord written notice as required by the

agreement.

196

To avoid later disagreements, date the notice,

state the date that you intend to move, and

make a copy of the notice for yourself. It’s best

to deliver the notice to the landlord or property

manager in person, or mail it by certiﬁed mail

with return receipt requested. (You can also

serve the notice by one of the methods described

under “Proper Service of Notices,” page 71.)

197

You can give the landlord notice any time

during the rental period, but you must pay full

rent during the period covered by the notice. For

example, say you have a month-to-month rental

agreement, and pay rent on the ﬁrst day of each

month. You could give notice any time during

the month (for example, on the tenth). Then, you

could leave 30 days later (on the tenth of the

following month, or earlier if you chose to). But

you would have to pay rent for the ﬁrst 10 days

of the next month whether you stay for those

10 days or move earlier. (Exception: You would

not have to pay rent for the entire 10 days if you

left earlier, and the landlord rented the unit to

another tenant during the 10 days, and the new

tenant paid rent for all or part of the 10 days.)

198

The rental agreement or lease must state

the name and address of the person or entity to

whom you must make rent payments (see page

19). If this address does not accept personal

deliveries, you can mail your notice to the owner

at the name and address stated in the lease

or rental agreement. If you can show proof that

you mailed the notice to the stated name and

address (for example, a receipt for certiﬁed mail),

the law assumes that the notice is receivable by

the owner on the date of postmark.

199

Tenant’s notice to end tenancy due to

domestic violence, sexual assault, or stalking

You may notify your landlord that you or

another household member has been a victim of

domestic violence, sexual assault, or stalking,

and that you intend to move out. However, you

would still be responsible for payment of the

rent for 30 days following your notice. You are

required to attach to your notice to the landlord

a copy of the restraining order, emergency

protective order, or police report, within 180 days

of the day such order or report was issued or

made.

200

A landlord cannot end or refuse to renew

your tenancy based upon the fact that you or

a member of your household is a victim of a

documented act of domestic violence, sexual

assault, or stalking.

200.1

If you request that the

landlord change your locks and the landlord fails

to do so within 24 hours of your request, you may

then change the locks yourself. If the restrained

person is also a tenant of the unit, that person

is still responsible for upholding their end of the

lease. These rules apply to leases signed after

January 1, 2011.

200.2

Landlord’s notice to end a periodic tenancy

A landlord can end a periodic tenancy (for

example, a month-to-month tenancy) by giving

the tenant proper advance written notice. Your

landlord must give you 60 days advance written

notice that the tenancy will end if you and every

other tenant or resident have lived in the rental

unit for a year or more.

201

However, the landlord

must give you 30 days advance written notice in

either of the following situations:

196 Civil Code Section 1946.

197 Civil Code Section 1946.

198 See Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 357-358 (NOLO

Press 2011).

199 Civil Code Section 1962(f).

200 Civil Code Section 1946.7.

200.1 Code of Civil Procedure Section 1161.3.

200.2 Civil Code Sections 1941.5, 1941.6.

201 Civil Code Section 1946.1(b).

•

Any tenant or resident has lived in the rental

unit less than one year;

202

•

The landlord has contracted to sell the rental

unit to another person who intends to occupy

it for at least a year after the tenancy ends.

In addition, all of the following must be true

in order for the selling landlord to give you a

30-day notice —

- The landlord must have opened escrow

with a licensed escrow agent or real

estate broker, and

- The landlord must have given you the 30-

day notice no later than 120 days after

opening the escrow, and

- The landlord must not previously have

given you a 30-day or 60-day notice, and

- The rental unit must be one that can

be sold separately from any other

dwelling unit. (For example, a house or

a condominium can be sold separately

from another dwelling unit.)

203

The landlord usually isn’t required to state

a reason for ending the tenancy in the 30-day

or 60-day notice (see 30-Day or 60-Day Notice,

page 68). The landlord can serve the 30-day or

60-day notice by certiﬁed mail or by one of the

methods described under “Proper Service of

Notices,” page 71.

204

Note: In the circumstances described on

pages 68–69, a landlord can give you just three

days advance written notice.

If you receive a 30-day or 60-day notice, you

must leave the rental unit by the end of the 30th

or 60th day after the date on which the landlord

served the notice (see page 68). For example, if

the landlord served a 60-day notice on July 16,

you would begin counting the 60 days on July 17,

and the 60-day period would end on September

14. If September 14 falls on a weekday, you

would have to leave on or before that date.

However, if the end of the 60-day period falls

on a Saturday, you would not have to leave until

the following Monday, because Saturdays and

Sundays are legal holidays. Other legal holidays

also extend the notice period.

205

If you don’t move by the end of the notice

period, the landlord can ﬁle an unlawful detainer

lawsuit to evict you (see page 72).

What if the landlord has given you a 60-day

notice, but you want to leave sooner? You can

give the landlord the same amount of notice

as there are days between rent payments (for

example, 30 days’ notice if you pay rent monthly)

provided that —

•

The amount of your notice is at least as

long as the number of days between rent

payments, and

•

Your proposed termination date is before the

landlord’s termination date.

206

What if the landlord has given you a 30-day

or 60-day notice, but you want to continue to

rent the property, or you believe that you haven’t

done anything to cause the landlord to give you

a notice of termination? In this kind of situation,

you can try to convince the landlord to withdraw

the notice. Try to ﬁnd out why the landlord gave

you the notice. If it’s something within your

control (for example, consistently late rent, or

playing music too loud), assure the landlord that

in the future, you will pay on time or keep the

volume turned down. Then, keep your promise.

If the landlord won’t withdraw the notice, you will

202 Civil Code Section 1946. Civil Code Section 1946.1(c).

203 Civil Code Section 1946.1(d).

204 Civil Code Section 1946.1(f).

205 Code of Civil Procedure Section 12a. See California Practice Guide, Landlord-Tenant, Paragraph 7:220 to 7:220.6 (Rutter Group 2011)

on whether service of the 30-day notice by mail extends the time for the tenant to respond.

206 Civil Code Section 1946.1(e).

have to move out at the end of the 30-day or 60-

day period, or be prepared for the landlord to ﬁle

an unlawful detainer lawsuit to evict you.

Special rules may apply in cities with rent

control. For example, in some communities

with rent control ordinances, a periodic tenancy

cannot be ended by the landlord without a good

faith “just cause” or “good cause” reason

to evict. In these communities, the landlord

must state the reason for the termination, and

the reason may be reviewed by local housing

authorities.

Suppose that you are a tenant who

participates in the Section 8 housing voucher

program. While the lease is in effect, the landlord

must have good cause to terminate (end) the

tenancy. Examples of good cause include serious

or repeated violations of the lease, or criminal

activity that threatens the health or safety

of other residents.

207

However, incidents of

domestic violence may not be used as a violation

by the victim or threatened victim as good

cause for the landlord to terminate the tenancy,

occupancy rights or assistance of the victim.

208

The landlord must give the tenant a three-day

or 30-day or 60-day notice of termination under

California law (see pages 67–69), and both the

landlord and the tenant must give the public

housing agency a copy of the notice.

209

What

if the landlord simply decides not to renew the

lease, or decides to terminate the HAP (housing

assistance payment) contract? In this case, the

landlord must give the tenant 90 days’ advance

written notice of the termination date.

210

If the

tenant doesn’t move out by the end of the 90

days, the landlord must follow California law to

evict the tenant.

211

If you live in government-assisted housing or

in an area with rent control, check with your local

housing ofﬁcials to see if any special rules apply

in your situation.

ADVANCE PAYMENT OF LAST MONTH’S RENT

Many landlords require tenants to pay “last

month’s rent” at the beginning of the tenancy as

part of the security deposit or at the time the

security deposit is paid. Whether the tenant can

use this amount at the end of the tenancy to pay

the last month’s rent depends on the language

used in the rental agreement or lease.

212

Suppose that at the beginning of the tenancy,

you gave the landlord a payment for the last

month’s rent and for the security deposit, and

that the lease or rental agreement labels part

of this upfront payment “last month’s rent.” In

this situation, you have paid the rent for your last

month in the rental unit. However, sometimes

landlords raise the rent before the last month’s

rent becomes due. In this situation, can the

landlord require you to pay the amount of the

increase for the last month?

The law does not provide a clear answer to

this question. If your lease or rental agreement

labels part of your upfront payment “last month’s

rent,” then you have a strong argument that you

paid the last month’s rent when you moved in. In

this situation, the landlord should not be able to

require you to pay the amount of the increase for

the last month.

213

However, if your lease or rental

agreement labels part of your upfront payment

207 California Practice Guide, Landlord-Tenant, Paragraphs 12:251 and following (Rutter Group 2011). See this chapter for an indepth

discussion of the Section 8 housing program.

208 California Practice Guide, Landlord-Tenant, Paragraph 12:250 and 12:273.1 (Rutter Group 2011) citing United States Code Sections

1437f(d)(1)(5), 1437f(c)(9)(B); 24 CFR sections 5.2005(a), 982, 452(b)(1).

209 Moskovitz, California Eviction Defense Manual, Section 18.22 (Cal. Cont. Ed. Bar 2011), citing Gallman v. Pierce (ND Cal. 1986)

639 F. Supp. 472, 485 (landlord must follow California law when terminating a tenant’s Section 8 lease).

210 Civil Code Section 1954.535; Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111 [29 Cal.Rptr.3d 262].

211 California Practice Guide, Landlord-Tenant, Paragraph 12:301(Rutter Group 2011).

212 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 96-97 (NOLO Press 2011).

213 Portman and Brown, California Tenants’ Rights, page 243 (NOLO Press 2010); see Brown, Warner and Portman, The California Land-

lord’s Law Book, Vol. I: Rights & Responsibilities, pages 96-97 (NOLO Press 2011).

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