Far more tenants and landlords would get along if only the two groups (natural adversaries?) better understood the rights and responsibilities that each enjoys under the law.
In the spirit of lowering tensions, let’s review and explain a few basic rules that apply to the rental relationship. Before diving in, remember that landlords are lessors and renters are lessees. These terms are important because you’ll encounter them on any routine lease form.
- There Are Many Kinds of Leases
An estate for years lease has a definite beginning and ending date, therefore it’s not necessary for a tenant to give notice to the landlord to terminate this type of lease.
An estate from period to period, better known as a month-to-month lease, does require proper notice to terminate (30 days, 60 days or whatever is agreed to in the lease).
Whatever kind of lease the landlord and tenant agree to it should satisfy five requirements:
- It must state the length or duration of the lease.
- It must include the amount of rent and date on which it is to be paid.
- It must contain the names of the parties (lessee and lessor).
- It must include a sufficient description of the property (This could be simply the street address or, in some cases, it could mean the street address and the legal description.)
- It must give evidence of both the landlord’s and the tenant’s intent to create a landlord-tenant relationship.
- Only the Lessor Has to Sign the Lease
California courts have held that if a lease is written, then it must be signed by the lessor (landlord). The lessee (renter), however, is not required to sign the lease to make it valid, since the fact that the lessee is occupying the property is considered proof that he’s accepted the lease agreement.
- Any Lease Longer than a Year Must be in Writing
A lease of one year or less can be either written or verbal. A lease for more than a year must be in writing, however, according to the California Statute of Frauds. A lease also has to be in writing if the parties made the lease agreement in advance of the actual commencement of the lease; for example, in June for an 11-month lease that wasn’t to begin until September, thereby extending the contractual relationship for longer than a year.
- The Security Deposit Increases the Tenant’s Upfront Costs, So Budget Accordingly
A security deposit comprises the funds provided from the tenant to the landlord, in advance of possession, which are held by the landlord to use for any damages or unpaid rent when the tenant leaves the property. Both the landlord and prospective tenant should conduct an inspection before the tenant takes possession and again before the tenant vacates the premises and note the findings on an inspection report. Completed by the landlord, but within the presence of the tenant, the inspection report states the condition of the proper upon the tenant’s moving in and moving out of the property.
IF there’s no damage or cleaning required to the vacated property, then the landlord has a maximum of 21 days from the date of the tenant vacating the property to refund the security (and “cleaning”) deposits.
However, if either all or a portion of the deposit is to be withheld from the tenant, then the landlord must give that tenant – again, within 21 days – an itemized, written statement of the items and their charges.
If the landlord retains any portion of the deposit in bad faith, the landlord is liable for actual damages, a statutory penalty not exceeding $600.00, and a 2% per month interest from the due date until paid. The landlord might also be held liable for punitive damages.
The maximum allowed security deposits for residential properties (in addition to first month’s rent) are:
- Two months’ rent for an unfurnished rental.
- Three months’ rent for a furnished rental.
So, if a prospective tenant wanted to rent an unfurnished two-bedroom apartment for $1,500 a month, the total move-in costs would be $4,500 ($1,500 for the first month’s rent plus a two-month security deposit of $3,000).
- With a Landlord’s Rights Also Come Responsibilities
The landlord, by renting the property, is guaranteeing that the property meets the minimum health and housing codes. This is known as the implied right of habitability.
The landlord has the responsibility of ensuring that the property’s common areas are safe.
A landlord must respect the tenant’s use and quiet enjoyment of the property.
A landlord must respect the tenant’s use and quiet enjoyment of the property, as long as the tenant is following the terms of the lease. A landlord who harasses the tenant without valid cause may face a lawsuit.
A landlord must live by federal and state fair housing laws. This means he must not refuse to rent to someone based on that person’s race, color, or national origin; religion; sex, sexual orientation, or marital status; familial status; or physical handicap. (However, if it’s proven that the dwelling could be dangerous to a handicapped person, then a rental refusal might be allowed.)
Since January of 2003, a landlord has been allowed to terminate a month-to-month rental agreement by serving the tenant with a 30-day notice; or, if the tenant has lived in the dwelling for more than one year, the landlord can terminate the agreement by serving the tenant with a 60-day notice. The landlord doesn’t have to provide the tenant with a reason for this termination; nor does the tenant have to be in violation of the terms of the rental agreement.
The landlord does have the right to inspect a property periodically, but must follow specific guidelines when doing so (except in the case of an emergency), as discussed next
- The Landlord’s Right of Entry is Restricted.
Under a residential lease, the landlord may only enter the rental property under certain circumstances and certain times (between “normal business hours”), and the landlord must always give the tenant notice — 24-hour notice is generally deemed appropriate — except in the case of an emergency.
A landlord may enter a dwelling unit only in case of an emergency; to make necessary or agreed repairs, decorations, alterations, or improvements: to supply necessary or agreed services; to show the dwelling to prospective or actual purchasers, mortgagees, tenants, workmen or contractors; where the tenants has abandoned or surrendered the premises; or under a court order.
If the landlord either abuses this right of entry or uses it to harass the tenant, the tenant could bring legal action.
- When Landlords Don’t Maintain Their Properties, Tenants Have Options
If the landlord doesn’t maintain a residential property in a condition for human occupancy (rats in the attic, a leaky roof, mold under the sink, etc.), the tenant has the right to give the landlord notice to correct the situation. After the landlord has received the tenant’s notice, the land must repair the dangers or other problems on the property. If the landlord doesn’t respond in a reasonable time, the tenant can either:
- Spend up to one month’s rent in repairs (This is permitted only twice in any 12-month period), known as rental offset; or
- Abandon the premises, in which case the tenant is relieved from the requirement of paying additional rent and the performance of other conditions of the lease.
Current California law forbids any retaliatory action by the landlord, such as raising the rent or serving an eviction notice, for 180 days after the tenant’s use of this rental offset.
- Tenants Have to Hold up Their End of the Bargain
As a landlord must uphold certain rights and responsibilities, so too does the tenant.
- Tenants must pay the rent when it is due.
- Tenants must not damage the property, beyond normal wear, while they are occupying the property.
- Tenants in a month-to-month lease must give at least 30 days’ notice before vacating the property. The tenant who does not give this notice can be sued for 30 days’ rent by his landlord.
- Tenants must not interfere with the rights of other tenants.
- Tenants must keep the premises clean and sanitary, and properly use any fixtures or other facilities on the property. This also means that tenants may not allow others to willfully destroy, damage or remove any part of the property.
If the tenant contributes to the degradation of the property (whether deliberately or negligently), then the landlord could have cause to file action against the tenant.
- Not All Terminations End Happily
A lease can be terminated several ways, but most cease when the rental agreement expires or by mutual consent. Generally, a rental agreement is terminated, by either the landlord or the tenant, with a 30-day written notice, unless the parties have agreed to a longer notice period. A 60-day notice is required by the landlord if the tenant has lived in the property for more than a year.
Other means of termination are as follows:
- Destruction of the property;
- Condemnation or other government action;
- Death of one of the parties;
- Illegal use of the premises;
- Insolvency or bankruptcy of either party;
- Abandonment or surrender of the premises (Surrender is the giving up of a lease or other estate, thereby ending any further obligations. Leases are surrendered through mutual agreement or by an operation of the law);
- Breach of the lease contract by either the landlord or the tenant.
- How the Eviction Process Works
Eviction is the legal procedure of removing a tenant from a property because there is a breach of the lease or rental agreement. It is illegal for a landlord to forcibly remove the tenant himself, or to otherwise take matters into the landlord’s own hands, by shutting off the utilities, changing the locks, removing the doors, tossing the tenant’s possessions out of the property, or trespassing.
If a tenant refuses to give up possession of the property, but refuses to pay rent, then the landlord usually serves a three-day notice to cure a breach or quit. In situations in which a breach of a lease cannot be cured, the three-day notice need not give the tenant the option to cure the breach.
The steps to legally remove a tenant from a rental property are as follows:
- The landlord will serve the tenant with either a three-day or a 30-day notice. (A three-day notice is served if the tenant has defaulted on rent or violated another term of the rental agreement; a 30-day notice is served when the tenant hasn’t violated the agreement, but the landlord wants the tenant to leave.)
- If the tenant refuses to leave, then the unlawful detainer is filed. An unlawful detainer is the legal action in which a complaint, asserting charges against the tenant, is filed with the court.
- If the landlord wins, the court will award the landlord a judgment, and the landlord will ask for a writ of possession to authorize the sheriff to evict that tenant; and, finally,
- The sheriff will send the eviction notice to the tenant. If the tenant still refuses to leave, then the sheriff will physically remove the tenant.
Should the landlord wish to recover unpaid rent or be compensated for damages to the property, etc., that must be handled in a separate legal action.