Key Provisions of California Residential Landlord-Tenant Law

A. Tenancies and Rental Agreements

A residential tenancy is created by a rental agreement, which may be either oral or in writing, express or implied, for a fixed term or on a periodic basis (i.e., month to month). If for a fixed term of more than one year, the lease must be in writing.  If a written agreement is used, it should identify the parties, describe the premises, specify the rent, state the rental period and starting date, rent due dates, late charges, and be dated and signed by the parties.

There does not need to be a written lease for there to be a rental agreement: many leases are by oral agreement. There can also be implied agreements – as where the landlord allows a person to move in and accepts rent.   However, a landlord may not evict a tenant for breach of a lease provision other than failure to pay rent, unless the provision breached is in a written lease. Therefore, any restrictions, such as a no pet clause, no subletting clause, late charges, etc., should be in a writing signed by the tenant.

The specific amount of rent is generally up to the agreement of the parties. However, certain cities have rent control ordinances which may limit the amounts which can be charged, or the amount of increases. The term of the rental agreement is presumed to be month to month; if the term is different, it must be expressly specified in your agreement, whether written or oral (Civil Code § 1943).  Absent an agreement to the contrary, rent is presumed to come due at the end of the term, not the beginning. (Civil Code § 1947). If the rent due date falls due on a holiday or weekend, the tenant has until midnight the next business day to pay (Civil Code Sec. § 12a, 12b).

Late charge provisions must be in writing and are valid only if reasonably calculated to compensate for the cost of processing late payments; if designed to deter the tenant from late payment, they may be deemed invalid. Late charges between 5 – 10% are generally held to be valid, although some rent control cities limit the amount.

Most terms of a periodic tenancy (i.e., month-to-month) may be changed by written notice delivered at least as long before it takes effect as the rental period.  The notice may be delivered by personal delivery, substituted service and mailing, or posting and mailing depending on whether the tenant is at the residence or his usual place of business at the time.  (Civil Code § 827).

At the conclusion of a fixed term lease, if the tenant remains in possession and continues to pay rent, the tenancy is presumed to be renewed on a month to month basis, with all the terms of the original lease intact. (Civil Code § 1945). Otherwise, the landlord is entitled to possession at the conclusion of the term and may bring eviction proceedings if the tenant fails to move out (Code of Civil Procedure §1161}.

The landlord may charge a non-refundable screening fee equal to his actual out of pocket cost, not to exceed $30 per applicant who is entitled to a copy of any credit report generated included in the charge. The parties may also contract for the tenant to prepay six months’ rent or more, in a lease which for an initial term of not less than six months. (Code of Civil Procedure § 1950.6).  A landlord you may require a co-signer to guarantee the performance of any written rental or lease agreement or lease. This guarantee must be in writing.  (Civil Code § 2819).

State law prohibits certain lease provisions which require tenants to waive certain right; these are listed at Civil Code § 1953.  Furthermore, some local city rent control ordinances require or permit other provisions.

Landlords may refuse to rent to any tenant with a pet except properly trained dogs of a protected disability classes of tenants, including the blind, visually impaired, deaf or physically disabled (Civil. Code Sec. 54.1), and a landlord may not charge an additional security deposit for a qualified dog (Civil. Code Sec. 54.2).  Landlords may not refuse to rent or continue to rent to tenants with waterbeds or liquid filled furniture who reside in a structure built after 1972. Landlords have the right to be present at the time of waterbed installation to require minimum waterbed component standards such as conformity to building code floor weight load limits, and may require the tenant show proof of insurance for a minimum $100,00.00 (Civil Code  § 1940.5).

B. Security Deposits

There is no longer a formal distinction among types of tenant deposits (i.e., security deposit , cleaning deposit, last month’s rent, pet deposit, etc.); California only recognizes a general security deposit. This is  any advance payment to the landlord to be used to remedy defaults in rent payments, repair of damage to the premises (exclusive of normal wear and tear), cleaning at the end of the tenancy, or to repair specific landlord personal property where the rental agreement so provides. Landlords may not charge any non-refundable deposits or “fees” (Civil Code § 1950.5). The security deposit may not exceed three months’ rent for furnished premises, or two months rent for an unfurnished rental. There may be an additional one-half month’s rent if the tenant has a waterbed (Civil Code § 1950.5). Payment of interest is not required by State law, but some local jurisdictions require it.

Within three weeks (21 days) of the date the tenant vacates the landlord must provide an accounting of any charges to the deposit in writing. The accounting may be mailed to the tenant’s last known address together with any refund due. Failure to do this in bad faith subjects the landlord to any actual damage suffered by the tenant, as determined by the court, plus statutory damages of up to $600  (Civil Code  § 1950.5). The landlord may not charge for reasonable wear and tear, but only for repairs or cleaning above conditions in excess of this standard.

When the landlord sells the property he must elect to refund unused tenant deposits to the tenants, with an accounting, or to transfer the unused portions of such deposits to the new owner through escrow, together with such accounting. Failure to do so subjects both the old and new owner to liability to any aggrieved tenants for damages (Civil Code § 1950.5).

C. Habitability, Maintenance and Repairs

The landlord is under an obligation to put and maintain the premises in a condition fit for human occupancy (“habitability”), except for those conditions caused by his tenant’s want of ordinary care (Civil

Code §§ 1929, 1941).  Habitability includes that the following things be provided, be in usable condition, and be up to code: weather-proofing of roof, exterior walls, and unbroken windows; plumbing; water supply of hot and cold water; heating facilities; electrical lighting; building, grounds and appurtenances clean and free of vermin at the time of renting; adequate garbage receptacles; floors, stairways and railings in good repair; adequate locks (Civil Code §§ 1941.1, 1941.3). The landlord is also obligated to wire the premises for at least one telephone line (Civil Code § 1941.4).  Some local ordinance may have additional requirements.

The landlord having the duty to maintain the premises, has the countervailing right to enter the premises to do so (Civil Code § 1954). Although a tenant may not waive his right to the foregoing habitability requirements, he can agree in writing to maintain, improve or repair these items as part of the consideration of his lease (Civil Code § 1942.1). The landlord’s obligation to repair habitability defects may be vitiated if the tenant violates his own legal obligations as to maintenance, where these violations substantially interfere with the landlord’s ability to do the repairs. (Civil Codec § 1941.2). The tenant’s obligation is to maintain his rental household in a clean, sanitary and undamaged condition (Civil Code § 1941.2)

Where the landlord fails to maintain the premises as above (i.e. the tenant requests a repair and it is not resolved in a timely manner (30 days is presumed reasonable), then the tenant has a number of remedies. No more than once a year, s/he may do the repair and deduct it from rent, or may vacate and be discharged from further obligations under his lease (Civil Code § 1942). He may also withhold the rent until the repairs are done, if the breaches are substantial and affect health and safety. A landlord may not collect rent on a premises which are substantially in breach of his obligations to maintain the premises (usually referred to as a breach of the implied warranty of habitability), and may be legally penalized for doing so (Civil Code § 1942.4). Acts in retaliation for a tenant exercising his legal rights may also subject the landlord to substantial legal penalties (Civil Code § 1942.5}.

The breach of the implied warranty of habitability usually comes play where the tenant has failed (or refused) to pay rent, the landlord has given a three day notice to pay or vacate and initiated an eviction action. The tenant may defend by showing that the landlord’s substantially breach of the implied warranty of habitability, and that this breach devalued the rental value of the property to the tenant. The court may find that the value was reduced by some percentage (i.e., 15%, 25%), so that the total rent was not due, and thus there is no breach of the duty to pay. The rental rate would then be reduced by that amount, and the tenant will have the opportunity to pay the past due rent less the percentage within   5 days of entry of Judgment. If the tenant does so, the tenant prevails and will not be evicted. If the tenant fails to pay, the tenant is evicted (Code of Civil § 1174.2}

D. Landlord’s Right to Enter the Dwelling

The landlord may enter the tenant’s premises only for specific reasons, during normal business hours and only after the tenant has been given at least 24 hour advance notice of the landlord’s intent to enter.  (Civil Code § 1954). These reasons are: an emergency; to make necessary or agreed repairs; to show the rental to prospective tenants, mortgagees or purchasers; if the tenant has abandoned or vacated the premises; or pursuant to a court order.

E. Termination of Tenancy

Terminations may occur upon a default in a lease term, but may be terminated without default. Fixed term leases end automatically at the end of the term specified unless stated otherwise in the lease agreement. A one year lease ends on the one year anniversary of its effective date (Civil Code §§ 789, 1945). However, if tenant remains in possession and the landlord accepts a rent payment, the lease will automatically renew for a period equal to the period for which rent is paid, usually month-to-month. If no rent payment is accepted by the landlord, and the tenant fails to vacate, the landlord may proceed directly to an unlawful detainer proceeding (Code of Civil Procedure § 1161).

Many rental agreements are on a month to month basis, with no specified termination date. In this case, either party may terminate the tenancy, at will, by giving a thirty day notice terminating tenancy to the other party (Civil Code § 1946). Some rent control ordinances prohibit or restrict this right.

Many tenancy terminations are for breach of a term or condition of the rental agreement. If the agreement is oral, the landlord may ordinarily evict only for failure to pay rent. If in writing, he may evict for breach of any material term of the written lease agreement. On rare occasions, a landlord may terminate the tenancy for the creation of a nuisance or waste on the premises. In the case of nonpayment of rent, the tenant must be given a 3 day notice demanding that the rent in default be paid or, in the alternative, that the property be surrendered to the landlord. The exact amount of rent in default must be specified. In the case of a breach of another lease covenant, the tenant must be given a three day notice demanding that the lease covenant be performed and the breach be stopped, if that is possible. (Code of Civil Procedure § 1161). For example, in the case of a no pet clause, the notice would require the tenant to remove the pet within 3 days.

Any notice of termination, by default or not by default, should identify the premises, be dated, identify all adults on the premises known to the landlord, and be signed and dated by the owner or a person designated to act on his behalf. The notice must be properly delivered to the tenants, buy one of three methods: hand delivery; substituted service and mailing; or posting and mailing. Substituted service (delivery to a responsible adult at the premises) and posting and mailing, may only be used after the landlord has first attempted personal service (Code of Civil Procedure § 1162).  A 30 day termination notice may be served by registered or certified mailing (Civil Code § 1946).

If the landlord reasonably believes the tenant has abandoned the leased premises, and the rent has been in default for at least 14 consecutive days, then the landlord may terminate the tenancy and retake possession by way of a 15 day notice under Civil Code § 1951.3).

Where the termination is for default, the landlord is entitled to recover from the former tenant any rent in default, any rent lost as a result of the breach and early termination of the lease, plus any other loss which results from the default. However, the landlord must take reasonable steps to mitigate the damage, i.e., minimize the loss (Civil Code § 1953.2). In some instances, the landlord may, if the lease so provides, elect not to terminate the tenancy and allow the premises to remain vacant, and attempt to collect the rent as it comes due for the duration of the lease (Civil Code § 1951.4}.

F. Eviction Procedure and Landlord Retaliation

The remedy for the tenant who has refused to live up to his obligations under the rental agreement, or to vacate once it any lease has expired, is to evict him. A California eviction is referred to as an “unlawful detainer” and it is a special proceeding set up by statutes which provides for an accelerated process. The foundation for this process is the provision to the tenant of the requisite legal notice allowing him to cure his default and avoid forfeiture of his tenancy, or terminating his tenancy. See the section on TERMINATION OF TENANCY. Typically an uncontested eviction action takes under 30 days to complete from service of eviction notice to Sheriff restoration of the premises.

The tenancy having been terminated, whether for non-payment of rent and the use of a 3 day pay or quit notice or a 30 day quit notice, the landlord commences things by filing a complaint and having summons issued in the local municipal or superior court {Code of Civil Procedure Sec. 1166}. After service of these documents upon the tenants, they have five days to interpose a response at court (usually by filing an Answer or other pre-judgment motion) {Code of Civil Procedure Sec. 1167, 1167.3}.

If the tenants fail to appear to defend or otherwise contest their eviction, then the landlord may immediately have a clerk’s judgment for possession of the property, and can obtain judgment for any rent and other things he is entitled to later {Code of Civil Procedure Sec. 1169}.

Where the tenant answers, either party may demand a trial before a judge or jury, and this trial must occur within 21 days of the demand {Code of Civil Procedure Sec. 1170.5}.

Upon the conclusion of the trial, the court will pronounce judgment. If in favor of the tenant, the matter ends. If in favor of the landlord, the court will order that the landlord be restored to possession of the property, plus such monetary awards as are allowed {Code of Civil Procedure Sec. 1174}.

After the possession judgment is entered, the clerk will issue directing the Sheriff or Marshall to go to the premises and evict the tenant. The peace officer will deliver a five day notice to quit demanding that the occupants of the premises vacate or be evicted, and upon expiration of the five days, will physically put the tenants out and restore the landlord to possession. The peace officer will not, however, move or accept responsibility for any tenant personal property of the occupants which may remain on the premises. The former tenants have up to and including 15 days in which to reclaim their personal property {Code of Civil Procedure Sec. 1174}.

When the peace officer gives his initial eviction notice, any person who claims a right to possession of the premises may assert that right and that claim will be resolved under {Code of Civil Procedure Sec. 1174.3}.

The legal process of eviction is done by the landlord acting “In Propria Persona” or retaining an attorney. Uncontested cases usually consume 13 to 30 days. Where a tenant fights or contests their eviction, which would include at least one court hearing, the process will take 30 to 50 days to complete.

If the tenant can show that the landlord is trying to evict him, raise his rent, or otherwise increase his burdens of tenancy in retaliation for his exercise of a legal or constitutional right, then the landlord cannot recover possession from him, or enforce the rent increase or other action. Where the tenant has acted in the exercise of his rights within the past 180 days, the landlord is presumed to be acting in retaliation, and the landlord has the burden of proof of a reason for the eviction or other action. Where the eviction is for non-payment of rent, or the notice of termination of tenancy, or rent increase, specifies satisfactory cause for the action, then the tenant may still raise a defense of retaliation, but the tenant has the burden of proof of retaliation {Civil. Code Sec. 1942.5}.

G. Discrimination

California residential landlords are considered to be businesses within the meaning of the anti-discrimination statutes and are bound by them according to their terms. All persons in the state are deemed to be equal and entitled to equal accommodations, advantages, etc., despite their sex, race, color, religion, ancestry, national origin or disability  (Civil Code § 51). Age discrimination is specifically prohibited (Civil Code § 51.2), although senior housing is permissible (Civil. Code §  51.3). Landlords are liable to their tenants under the sexual harassment statute (Civil Code § Sec. 51.9}

Applicable State discrimination laws include: Fair Housing Act (Govt. Code § 12955); Senior Citizen Housing Act (Civil Code § 51.3}; Handicapped Rights Act (Civil Code § 54}:Unruh Civil Rights Act (Civil Code §§ 52-53}; Discrimination in violation of these statutes may subject the landlord to substantial penalties (Civil Code § 52}. Federal laws include Civil Rights Act of 1866; Fair Housing Act of 1968; Fair Housing Act Amendments (1972, 1988); Americans with Disability Act (1992).

[1]NOTICE: This article is not intended to constitute, and does not constitute, legal advice.  Moreover, the article is not intended to constitute, and does not constitute, a solicitation for the formation of an attorney-client relationship; no attorney-client relationship is created through your receipt or use of this article.  Anyone accessing the article should not act upon it without first seeking legal counsel. Further, the materials are general in nature, and may not apply to particular factual or legal circumstances.

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One Response to Key Provisions of California Residential Landlord-Tenant Law

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