Tenant Landlord FAQ
Frequently asked questions
Rental agreements
Can a tenant add a roommate?
Unless there are local laws that address this questions, a landlord has the right to prohibit subletting totally or to require advance written consent. Review the lease agreement for any information on subleasing. If the management wants to enforce this clause, a tenant could be given a three-day notice to remove a roommate/subletter or face an unlawful detainer action for eviction.
Making changes to the lease agreement
Unless both the landlord and the tenant agree to allow the change, conditions of a lease cannot be changed during the period of the lease. If the tenant doesn't agree with a change, then the landlord must wait until the lease expires to make the change or else offer the tenant some consideration in exchange for renegotiating these terms. The landlord also has the option of not renewing a lease when the time period expires even if the tenant wants to stay. In these type of situations, we suggest you contact us for assistance.
Can a Spanish-speaking tenant ask a landlord for a translation of the lease?
According to CA Civil Code Section 1632(b), if the landlord negotiates for the rental, lease, or sublease of a rental unit with a tenant primarily in any of the following five languages, Spanish, Chinese, Tagalog, Vietnamese or Korean, then it is the responsibility of the landlord to provide a written translation of the lease or rental agreement in the language used in the negotiation. This applies whether the negotiations are oral or in writing. The exception to this rule is if the rental agreement is for less than one month, or if the tenant provides their own translator who reads, speaks fluently, and writes in any of the five languages, is not a minor, and not employed by the landlord. Otherwise, whether the tenant requests a translation or not, it must be provided in any of the five languages previously listed. For more information about translation requirements in rental agreements, visit the California Consumer Affairs Landlord Tenant Handbook website.
Late fees if a tenant's rent check bounces
In short, Civil Code Section 1719 allows for a fee not to exceed $25.00 for the first check passed on insufficient funds and an amount not to exceed $35.00 on each subsequent check passed on insufficient funds. Besides the allowed fees of either $25.00 or $35.00, a rental agreement may also contain language stating other miscellaneous fees. To be enforceable, these miscellaneous fees must be reasonably related to any actual inconvenience or damage to the landlord rather than a penalty. All of these fees can become cumbersome and difficult to collect by a landlord. No fees are allowed by Civil Code Section 1719 if an account had insufficient funds as a result of a delay in the regularly scheduled transfer of, or the posting of, a direct deposit of a Social Security or government benefit assistance payment.
Deposits
By when should a landlord return the deposit?
By law a tenant should receive their full security deposit, or an itemized statement of deductions from their security deposit and any security deposit that is owed within 21 days of vacating the unit. If the deduction exceeds $125, receipts or other documentation must be attached. If the tenant does not receive a timely itemized statement of deductions from their security deposit and it is deemed by the court that the landlord was acting in bad faith, then the court may assess the landlord up to twice the amount of the security deposit in additional damages for violation of Civil Code §1950.5.
Using the security deposit for the last month's rent?
Landlords are not obligated to use security deposit funds as last month’s rent. If the landlord does not agree to use a deposit for the last rent and the tenant doesn't pay the last month's rent, he or she can serve a 3-Day Pay Rent or Quit Notice. To prevent possible legal action, known as an unlawful detainer, it is advisable to pay the rent within the required time period. Before a tenant decides not to pay the rent, they may want to discuss the situation with the landlord. Any agreement about using the deposit as the last month's rent should be in writing to avoid any disputes down the road. According to Civil Code 1950.5, security deposit funds can be used for damage caused by a tenant or their guests, any past due rent, or any necessary cleaning.
What if a tenant cashes a returned deposit check and continues to disagree with the amount?
Civil Code Section 1526(a) states “Where a claim is disputed or unliquidated and a check or draft is tendered by the debtor in settlement thereof in full discharge of the claim, and the words ‘payment in full’ or other words of similar meaning are notated on the check or draft, the acceptance of the check or draft does not constitute an accord and satisfaction if the creditor protests again accepting the tender in full payment by striking out or otherwise deleting that notice or if the acceptance of the check or draft was inadvertent or without knowledge of the notation.’ In this situation, the tenant is the creditor and the landlord is the debtor. Since the tenant did not agree to accept the amount, the notation should be lined out and initialed before safely cashing the check. Additionally a tenant can add their own notation such as ‘balance in dispute.’
How to avoid security deposit issues
Disagreements about security deposits are a leading cause of disputes between landlords and tenants. Following reasonable guidelines can help both sides to avoid stressful and time-consuming conflicts.
AT THE TIME OF MOVE-IN:
- Perform a joint walk-though of the rental premises. Make sure the entire premises is covered, including the entire inside and any outside areas.
- Prepare a written summary signed by both parties listing all defects and all repairs promised by the landlord. If the tenant is going to make any repairs or changes to the premises, such as installing blinds, note them now and indicate how they will be treated at the time the tenancy ends.
- If a joint summary is not possible, document the condition of the premises with a complete set of photographs and your own written inventory.
- If the tenant requests the walk-through, it must be scheduled at a mutually convenient time, with at least 48 hours notice. At that time, a written list of all apparent defects, which are the responsibility of the tenant, must be given to the tenant. The tenant is only responsible for items on the list, with the exception of defects which not capable of being observed, or which occur after the inspection, for example damage during move-out.
- The tenant is responsible for restoring the premises to the same level of cleanliness that existed at the time of move-in.
- If there isn’t a final joint inspection, document the condition of the premises with a complete set of photographs.
- Remember that the landlord has 21 days to return the security deposit and account for any amounts withheld. He must attach receipts or other documentation, if the deduction exceeds $125.
- Make sure the landlord has a usable new address to send the accounting for the deposit, because otherwise it will go to the last known address, which may cause delays.
Is a "cleaning deposit" considered a security deposit?
The landlord’s charge to the tenant may be called “security deposit”, “pet deposit”, or “cleaning deposit”. Nonetheless, California law considers all such fees as part of the security deposit, and makes them subject to the same rules that apply to security deposits.
How much can a tenant be charged for a security deposit?
A landlord may charge up to two times the monthly rent for an unfurnished rental unit and up to three times the monthly rent for a furnished rental unit. The sum of all charges designated as deposits, including pet deposits, cannot exceed these limits.
What can a security deposit be used for?
A security deposit is a deposit or a fee that the landlord requires a tenant to pay at the beginning of the tenancy. The security deposit protects the landlord against possible financial losses after a tenant terminates the tenancy. The landlord may only use the security deposit to recover uncollected rent, to remedy damages to the unit caused by the tenant or their guests, or to recover cleaning costs. The landlord may not deduct from the security deposit for “normal wear and tear” to the rental unit, nor for damages that existed prior to the current tenancy.
Terminations
Are there any local laws that can effect a tenancy?
Yes. Some Bay Area jurisdictions are rent controlled or have enacted ordinances with provisions that may only allow landlords to evict tenants for certain reasons, or to increase the rent by a certain percentage. In these cities, tenants can file petitions to enforce their rights and landlords can file petitions to request exemptions for good cause.
3-day notice: What is a 3 day notice to pay or quit?
What if the tenant leaves personal items and furniture behind?
Civil Code § 1984 allows a landlord to send a Notice of Right to Reclaim Abandoned Property to a tenant who leaves belongings after they have moved. This notice gives a tenant 18 days to make arrangements to take possession of their belongings. During this time a landlord can move the items to a safe area to protect them. After 18 days, if the items have not been removed and they have a collective value of less then $300, a landlord can dispose of them in any manner they wish. However, if in their estimation, the value is more than $300, the landlord must hold a public sale and, after deducting reasonable storage fees and sale costs, deposit the net proceeds with their county’s Department of Revenue. As you can see, the process can become burdensome so we recommend that you work closely with each other to resolve this matter without having to resort to these measures. Your local housing medication program can offer additional information for you.
30 or 60-day termination notice?
Civil Code § 1946.1 requires a property owner to serve a written 60-Day Termination of Tenancy notice to month-to-month tenants who had resided in a rental property for one year or more, except in certain limited situations when the property is being sold. A 30-Day Termination notice is required for tenants who had resided in the unit for less than a year. For tenants of less than one year, a property owner can serve a 30-Day Termination of Tenancy notice. In the case of a lease, tenancies can be ended by the non-renewal of the lease by either party although most leases have a clause requiring an advance notice, usually 30 or 60 days, when a tenant or property owner does not intend to renew a lease. Even when rent is paid on a 2-week or 7-day period, the property owner is still obligated to give a 60-day notice.
3-day notice: What constitutes proper service of a 3-day notice?
3-day notice: How do I count the 3 day period after service of a 3-day notice?
What if a tenant can't pay the full rent amount but only part of it?
What is constructive eviction?
Constructive eviction includes any attempt by a landlord to remove a lawful tenant (not a guest or trespasser) without resorting to the mandated unlawful detainer court process. The unlawful detainer process requires that an unlawful detainer complaint be filed in the Superior Court, followed by properly serving the summons and complaint on the tenant. Physical removal of the tenant can only be carried out after a judgment is issued by the court, and only by the local Sheriff’s Department.
Any effort to bypass the unlawful detainer procedures is an illegal “constructive” or “self-help” or “lock-out” eviction. A landlord who illegally evicts a tenant may be liable for several civil penalties including $100 a day under Civil Code Section 789.3(c), as well as a one-time penalty of $2000 under Civil Code Section 1940.2, and any additional damages the tenant may suffer such as relocation or temporary housings expenses.
Typical illegal eviction tactics include:
- Cutting off the tenant’s utilities or other essential services
- Verbally or physically harassing the tenant
- Any other action that effectively prevents the tenant from using the rental property
Foreclosure: What does the foreclosure process look like?
When a rental property owner becomes more than a month late on mortgage payments, that status is generally called “delinquency”. The property owner is not obligated to disclose his or her delinquency to a new or prospective tenant, and there are no public records indicating delinquency. There are no set time limits on the length of delinquency status.
The first formal step in the foreclosure process is when the owner is served with a Notice of Default. The owner is not obligated to notify a tenant when the Notice of Default is filed and served, but the Notice is a public record that can be researched at the office of the local county recorder. Once the default has been filed, the owner has at least 90 days to bring the mortgage current or negotiate some other “work out” with the lender.
The next step in the foreclosure process is the Trustee Sale, at least 20 days after the initial 90-day default period has expired. The Notice of Trustee Sale must be posted on the property subject to foreclosure, which gives the tenant warning that the sale is impending. The owner loses title to the property at the trustee sale.
Foreclosure: Does foreclosure result in eviction for the tenant?
Whether a tenant can be evicted after the trustee sale depends on the type of rental agreement, the type of underlying mortgage, and the jurisdiction where the property is located.
For properties with 1-4 units, a month-to-month tenancy in a non rent control jurisdiction can be terminated on 90 days written notice, once the trustee sale has been finalized. A tenant with a lease in one of these properties cannot be evicted until the lease ends, unless the new owner intends to occupy the property. In that case, the tenant is entitled to 90 days notice. This federal law only protects “bona fide” tenants who have documented rental agreements and proof of rent payments, and who are not immediate family members of the prior owner. Tenants not protected under the federal law are still entitled to a 60-day written notice under California law. In rent control jurisdictions that require “just cause” for evictions, a tenant is entitled to assert that trustee sale does not constitute “just cause”, and that the tenant is entitled to remain in the rental.
Foreclosure: What happens to the tenancy when the rental unit is foreclosed?
After the sale, the new owner is required to maintain utility service for the property and take responsibility for adequate repairs and maintenance for the property. The prior owner is required to transfer the tenant’s security deposit to the new owner after the trustee sale or refund it to the tenant. The new owner after the trustee sale should remain liable for any portion of the security deposit that was not refunded or transferred.
If the property is sold at the trustee sale, the bank or other new owner may agree to continue the rental relationship with the tenant. If so, the tenant should require a new written rental agreement documenting the new rental relationship.
Alternatively, the bank or other new owner may offer the tenant “cash for keys” in exchange for an agreement to vacate voluntarily. Tenants served with a 90-day notice could always try to negotiate a cash for keys agreement.
How does the eviction process look like?
Other
Can a landlord enter the tenant's unit anytime?
The very specific rules regulating a landlord’s right to enter a rental unit are set forth in California Civil Code Section 1954. Among other provisions, this statute requires a landlord to give you 24 hours written notice before entering. Even with notice, the statute provides that a landlord can only enter during normal business hours and only for certain specific reasons, such as to make repairs or to show the property to prospective tenants or purchasers, unless the tenant explicitly gives permission otherwise.
- The tenant and landlord agree orally to an entry to make repairs or supply services and the entry occurs within 1 week of the agreement, or
- The landlord is responding to an emergency, or
- The tenant has abandoned the premises, or
- The tenant has been advised in writing within the last 120 days that the property is for sale. Then, the landlord or agent need only give 24 hours oral notice of the date and actual time of entry to show the property. Written evidence of the entry must be left inside the unit.
Is a landlord obligated to change locks when a tenant moves out?
In California there is no legal requirement for landlords to automatically replace or rekey locks for new tenants. However, as part of a landlord’s habitability obligation, Civil Code Section 1941.1 requires that all doors and windows be secured with proper locks. Locks should be rekeyed if failing to do so would raise a safety issue. For example, a new tenant may be at risk if the prior tenants damaged the existing lock or did not turn in all the keys. Since there is no way to verify prior tenants turned in all the keys, replacing the locks would insure only the new tenants have keys. This action would generate goodwill and encourage the tenants to continue living at the complex.
Condo conversions?
Habitability
Who pays for repairs?
California Civil Code § 1941.1 requires that property owners maintain rentals in a condition ‘fit for living.’ Besides requiring that roofs, walls, plumbing, hot and cold water, sewers, heaters, lights, floors, stairways, and sufficient number of trash containers be provided and maintained in good condition by the owner, this code requires that doors and windows be operable and unbroken. Unless the tenant was careless operating any of the above, it would seem unreasonable for the landlord to require a tenant to pay for the repair.
The landlord's responsibility to provide habitable housing
Under California law, all residential leases and rental agreements contain an implied warranty of habitability. The landlord is responsible for repairing and maintaining a rental unit in a habitable condition and must ensure that the rental unit complies with state and local building and health codes. This responsibility is subject to the tenant’s concurrent duty to maintain the unit.
- Plumbing system in working order, including hot and cold water and an efficient sewage system.
- Gas and heating system in working order.
- Electrical system, including wiring and lighting, in working order.
- Clean and sanitary buildings, common grounds, and appurtenances; be free from debris, filth, rubbish, garbage, rodents, and vermin.
- Adequate trash receptacles.
- Floors, stairways, and railings in good repair.
must be located in a ventilated area that affords the tenant privacy.
- A kitchen sink made of non-absorbent material.
- Natural lighting in every room through windows or skylights. All windows must be able to be opened at least halfway, unless a fan provides mechanical ventilation.
- Safe fire and emergency exits.
- Storage areas and garages free of combustible materials.
- Operable door locks and deadbolts on entry doors.
- Smoke detectors in all multi-unit complexes and in common areas.
The tenant's responsibility to maintain the unit in habitable condition
A landlord may not be held liable for violation of the implied warranty of habitability if the tenant has not fulfilled his/her responsibility to take reasonable care of the rental unit.
- Properly use all gas, electrical, and plumbing fixtures.
- Properly dispose of all trash and garbage in appropriate receptacles.
- Ensure that household members or guests cause no damage to the premises.
- Use the rental unit for its intended purpose.
- Notify the landlord, preferably in writing, when the rental unit is in need of repair or maintenance.
- Not interfere with the landlord’s ability to repair any deficiencies.
How should a notice of repairs be given?
If a tenant believes that his or her rental unit has a deficiency under the implied warranty of habitability, the tenant should immediately notify the landlord by phone and in writing of any needed repairs or maintenance. The tenant should always keep a copy of any correspondence with the landlord or management. Any delay in notifying the landlord may cause additional damage and may result in the tenant being held responsible for damages, even though the landlord may have the initial responsibility to respond. If the landlord has not responded within a reasonable amount of time, then the tenant may exercise other options to remedy deficiencies in the rental unit.
What is a reasonable time period for the landlord to take repairs?
A reasonable time period depends on the type of repair to be done. Some repairs may require an urgent response from the landlord, such as, plumbing or electrical problems, while some repairs may allow a landlord a longer period to respond or complete the needed repair, such as, the repair or replacement of a furnace in mild weather.
What can a tenant do if a landlord doesn't respond to repair request?
The landlord must respond within a reasonable period of time to a request by the tenant for any repairs involving the implied warranty of habitability. If the landlord does not respond, a tenant may choose to use remedies allowed by law to resolve deficiencies in rental housing. These are: withholding of rent until repairs are completed; abandonment of the untenable unit; or paying for the repair and deducting the cost from the rent. If a tenant uses “repair and deduct”, the cost cannot exceed one month’s rent. These remedies can be used for any repair that involves the habitability of a rental unit, or the tenant’s health and safety. Examples include loss of electricity, roof leaks, lack of hot water, absence of working locks.
What are the risks in applying repair remedies?
If a tenant withholds rent or deducts repairs from rent, a landlord may respond by serving the tenant with a 3-day notice to pay rent or quit. If the tenant continues to assert the right to refuse payment, the landlord has the option of filing an eviction suit in court. However, if the landlord was cited for a substantial code violation that has been unremedied for at least 30 days, he is precluded from serving notices or taking legal action. If a case proceeds to trial, the tenant must prove that the deficiencies in the rental unit violated the implied warranty of habitability or the deficiencies were severe enough to constitute a safety or health hazard. If the court finds that the deficiencies in the rental unit did not violate the implied warranty of habitability, or the deficiencies were not severe enough to constitute a safety or health hazard, then the court may order that the tenant pay the withheld rent or allow the landlord to proceed with the eviction of the tenant. Any tenant seeking to use these remedies should have strong evidence that the legal requirements of the remedy have been met, including evidence of citations for code violations.
Mobilehomes
Mobilehome leases and space rent
Every homeowner must be offered a written rental agreement for a term of 12 months, unless the homeowner requests a shorter period. A term of more than 12 months cannot be required, but can be mutually agreed upon. Every rental agreement must specify the park’s services and fees. The agreement must also attach a copy of the park rules, the written disclosure regarding park conditions, and a copy of the Mobilehome Residency Law, all of which are deemed to be part of the agreement. An updated version of the MRL must be provided annually. A rental agreement or lease for a period of years cannot be automatically renewed without the homeowner’s consent.
Mobilehome utilities
Park management is permitted to include utilities as part of the rent payment or to charge separately for utilities, such as electric, sewage and cable tv. If it bills separately, management is not permitted to add any profit to the actual charges it passes to the homeowners. If management institutes separate utility billing, the space rent must be decreased by the amount of the utility charge previously included in the rental amount, if the park is in a rent control jurisdiction. Failure to do so is treated as a rent increase.
Mobilehome park rules
All park rules must be applied evenly and must be honored by both residents and park management. Rules must be consistent with applicable fair housing rules. A copy of the current park rules must be attached to every rental agreement.
Mobilehome park facilities
Management is responsible for the overall safe maintenance and operation of the park. Management is responsible for health and safety maintenance of trees anywhere in the park, if the individual homeowner’s rental agreement has been renewed since January 2001. A homeowner must obtain permission before planting a new tree. Management is responsible for any driveways it installs. Homeowners are responsible for driveways they install or for any damage they cause to existing driveways.
Mobilehome association and communication
Homeowners have the right to use park facilities for meetings for “any lawful purpose” and to invite public officials or members of homeowner advocacy groups. On non-commercial issues, homeowners have the right to circulate petitions and leaflets and canvass other homeowners, as long as they observe reasonable hours and reasonable behavior. Homeowners have the right to display political campaign signs within 90 days prior to an election and 15 days after, as long as the size of the sign does not exceed 6 square feet. Upon written request, management must meet and consult with a group of homeowners or an individual homeowner regarding park rules, rental agreements, maintenance standards or physical improvements.
Mobilehome eviction process
A lease may be terminated only for specified reasons, the most important of which are failure to comply with applicable ordinances or state regulations after receiving a notice of deficiency, failure to comply with park rules after receiving a 7 day notice of violation, or certain criminal acts such as prostitution or drug dealing. A homeowner can also be terminated for being a “substantial annoyance” to other homeowners or residents. A rental may also be terminated for failure to pay rent, utilities or other service charges which are 5 or more days late, but only after subsequently receiving a 3 day written notice of this deficiency.
Mobilehome purchase and transfer
Homeowners have the right to sell a mobile home “in place” through an agent of their choice. Management cannot charge a fee for a sale unless it performs an actual service related to the sale. Written notification that the home is for sale can be required. Management cannot require the owner to allow the park a right of first refusal, unless there is a separate agreement where management pays for this option.
Rent increases
How often can a landlord increase the rent?
Fixed Term Leases:
Some tenants have fixed term leases for a particular period of time, say 12 months. If a tenant is on a lease, the rent cannot be increased during the term of the lease, unless the lease itself allows rent increases.
Many tenants have periodic rental agreements – for example, a month-to-month rental agreement. In that case, the landlord can increase the rent, unless it is written in the agreement itself that rent increases are not allowed. The landlord must give proper advance written notice of a rent increase. For rent increases up to 10%, landlords must give 30 days notice. For any rent increase higher than 10%, a 60-day notice is required.
Normally in the case of a periodic rental agreement, the landlord can increase the rent as often as they like. However, the landlord must give proper advance written notice of the increase. The rent increase cannot discriminate or retaliate against a tenant for exercising a right as a tenant.
Increases in rent for government-financed housing are usually restricted. Local rent control ordinances may also limit rent increases or impose additional requirements on landlords.
How may a landlord deliver a rent increase notice?
A landlord's notice of rent increase must be in writing. The landlord may deliver a copy of the notice to the tenant personally. In this case, the rent increase takes effect in 30 or 60 days from the date the notice is delivered.
Alternately, the landlord may mail the notice to the tenant, with proper postage and addressed to the tenant at the rental unit. If the landlord mails the notice, they must give an additional five days' notice. That means the landlord would have to give the tenant 35 days' notice from the date of mailing if the rent increase is 10 percent or less. If it is more than 10 percent, 65 days' notice is required.
Is there a limit to how much a landlord can increase the rent?
Unless the tenant lives in government housing or in a unit that is subject to local rent control laws, there is no restriction on the amount of the rent increase. If the rent increase would cause hardship on the tenant, we recommend discussing this with the landlord to see if arrangements can be made. Landlords often benefit in having a good tenant and might be willing to revise the amount and/or the effective date of the increase if the tenant's hardship is brought to their attention. We can help both landlords and tenants as a third party neutral with these particularly tricky discussions.
Are there any local laws that can affect a tenancy?
Yes. Some Bay Area jurisdictions are rent controlled or have enacted ordinances with provisions that may only allow landlords to evict tenants for certain reasons, or to increase the rent by a certain percentage. In these cities, tenants can file petitions to enforce their rights and landlords can file petitions to request exemptions for good cause.