Protect your rights as a California renter with this plain-English guide to tenant-landlord law. California Tenants' Rights includes detailed information on California's numerous rent control and eviction protection laws, and provides you with the specific, current information you need to:
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July 2024 , 24th Edition
California tenants have many rights, especially those lucky enough to have rent control. But knowing and enforcing these rights can be difficult. Fortunately, California Tenants’ Rights, the leading tenant guide for over 50 years, provides all the information and key forms tenants need to:
The 24th edition includes updated information on state eviction rules and forms, local and statewide rent control ordinances, and additional anti-discrimination protections.
“A whole book of good ideas.”—Los Angeles Times
“Want to break a lease? The landlord won’t make needed repairs? Want to get your deposit back when you move out? These and many other questions … are answered in detail in California Tenants’ Rights”—Oakland Tribune
9781413331844 Number of Pages Included FormsThese forms are accessible online. After purchase, you'll find the link in Appendix B.
Attorney J. Scott Weaver, coauthor of the twentieth edition of California Tenants' Rights, has been a San Francisco tenant and housing activist for over 40 years. He's spent the last 30 years exclusively representing San Francisco Bay Area tenants. Scott has litigated several hundred tenant cases involving eviction, wrongful eviction, and habitability issues (including mold, asbestos, and bedbugs), and has brought tenant class action lawsuits. He has taught landlord tenant law at various legal education seminars.
Looking for a house or an apartment to rent is often a frustrating and time-consuming task. Because it is human nature to become harried and frazzled under pressure, many people make mistakes at this stage that later turn out to be costly, both in time and money. Try to stay cool.
Before you start looking for a place, make a list of your housing needs and priorities, including:
| Organize Your Records |
|---|
| It is extremely important that you keep good records. Get a large manila envelope or file folder in which to keep all papers having to do with your rental transaction. Misplacing and losing papers (deposit agreements, leases, rent receipts, and so on) is a common mistake to avoid. Your landlord is in business and has probably learned how not to make such basic mistakes, so you should do the same. Set up a safe place in which to save your papers, receipts, canceled checks, and anything else that you think might possibly be important later. |
Once you have a list of your priorities, it’s time to start looking. Craigslist and other online resources will usually be your best bet, but also get leads from people you know who live or work near where you want to live. Walk the neighborhoods that interest you and look for “Apartment for Rent” signs. Other good resources include local real estate offices, property management firms that handle rentals in the area, and college housing offices or alumni.
Before you start looking for a place, you should know a little about rental agreements. First—the most important rule—don’t sign any papers until you understand what’s in them, or you might regret it later!
Landlords rent their properties using one of these methods:
An oral lease or rental agreement is made with- out anything being written down—you just talk over what the deal is and agree to it. The other two, the written lease and the written rental agreement, have all the terms you agree to written down on paper, which you and the landlord sign. Let’s look at each in some detail.
An oral agreement is just as valid (enforceable by a court) as a written one, as long as it is for a period of one year or less. The landlord agrees to let you move in, and you agree to pay a certain amount of rent on some schedule, like weekly, every other week, or every month. Your payment of rent can be evidence of an agreement to rent, so it’s best not to pay in cash (you’ll want a canceled check or an electronic trail that shows you paid the rent).
If you pay rent monthly, your agreement will be presumed to be month to month. If you pay weekly, then it is week to week. Most oral agreements are month to month and require a 30-day notice for either party to terminate. But after you have lived there for more than a year, the landlord must give a 60-day notice to terminate your tenancy (see Chapter 14 for more on terminations). However, under the Tenant Protection Act, many tenants are protected from excessive rent increases and arbitrary evictions (discussed in Chapters 3 and 14).
Likewise, local rent control laws limit the land- lord’s ability to increase rents. Many local laws also require a landlord to show a “just cause” or good reason to evict you.
If you live in an area where a state of emergency has been declared due to a natural disaster or man- made disaster, you might have some protection from rent increases greater than 10%. (See Chapter 3 for a fuller explanation.)
An oral agreement has some advantages: It is relatively informal, and you aren’t subjected to the long list of terms and rules contained in most written leases and rental contracts. But as time goes by and circumstances change, there may be disagreements about what the oral agreement said. Then, if a disagreement arises, both sides end up in front of a judge who has to decide whose recollection of the agreement to believe. For this reason, even if you make an oral agreement, it is wise to get some of the landlord’s promises in writing. For example, if your landlord promises to make specific repairs, allow you to have a pet, or do anything else that you want to make sure the landlord remembers, write it down and have the landlord date and sign it.
If a landlord will not put agreements in writing, the next best thing to document the promise is to write a confirmation letter or email. An example is: “Dear Mr. Jones, It was a pleasure meeting with you today. Thank you for accepting me as a tenant and agreeing to install a washing machine in the laundry room before I move in next month. I am excited about moving into this house.” Email is perfectly acceptable and has advantages because it will be automatically dated. If you have the right email address for the landlord, he or she won’t be able to give you the “I didn’t get it” excuse.
Now, suppose the washing machine never shows up, and you want to sue for a reduction in rent, arguing that you’re paying for a rental with a washing machine, but have not received it. If Mr. Jones did not dispute your version of the agreement (by writing back, for example), your letter can be introduced in court as proof that the promise was indeed made, and was part of the reason you rented the place. (See Chapter 7 on how to get the landlord to follow through on promised repairs and improvements.)
A written lease and rental agreement are basically the same except for one important difference: The lease fixes all the terms of the agreement for a given period of time—most commonly, one year. When you rent under a lease, your rent cannot be raised until the lease runs out, nor can you be told to move unless you break the terms of the lease or the law. You, too, are expected to perform your obligations under the lease (including rent payments) until it runs out. For instance, if you move out before the year is up, you could be held liable for the remainder of the rent. (See Chapter 12, “Breaking the Lease.”)
A written rental agreement—often called a “month-to-month” agreement—has everything written down, just like the lease, but the time period of your tenancy is not fixed to a period beyond one month. The agreement self-renews every month until you or the landlord terminate it. This means that you can move out or your landlord can order you to move out on 30 days’ notice (if you’ve lived there for more than a year, the landlord must give you 60 days’ notice). And if you’re renting under a government-subsidized program, you’re entitled to 90 days’ notice before the landlord can terminate your tenancy.
For rent increases, 30 days’ notice is required, but if your landlord raises the rent more than 10% of the lowest rent charged within the previous 12 months, the landlord must give you 60 days’ notice. (See “Rent Increase Notices” in Chapter 3 for a full explanation of these rules.) Some communities have rent control that limits how much a landlord can increase a tenant’s rent.
Many rent control jurisdictions (and some that don’t have rent control) have imposed “just cause for eviction” protections that allow eviction for certain specified reasons only. (See Appendix A for information about determining if your city has “just-cause” eviction provisions.) And as of 2020, statewide rent control will cover many previously unprotected tenants (see Chapter 3).
If you live in an area where a state of emergency has been declared due to a natural disaster or manmade disaster, you might get relief from rent increases greater than 10%. (See Chapter 3 for a fuller explanation.) These rules regarding rent increases and terminations continue to apply when the rental property is sold mid-lease or mid–rental agreement. The new owner simply steps into the shoes of the old owner, bound by the agreements that come with the property. The new landlord must provide you with information on how to contact the new owner, as well as the address where you should send the rent.
Be careful! Because leases and rental agreements look so much alike, a form can look like a lease and sound like a lease, and even cover a year’s period, but contain a provision that rent can be raised or that the agreement can be terminated on 30 days’ notice (or 60 days for tenants who have been in the rental for a year or more, and 90 days for subsidized tenancies). These rent increase and termination provisions control: The form is really only a written rental agreement.
Read the rental document carefully! Most pre- printed rental agreements are on forms prepared by landlord associations and often have detailed provisions—most of them in favor of the landlord. It is crucial that you read the entire lease or rental agreement and understand it before you sign it.
You will be bound to these terms for as long as you live in the unit. If the main document refers to another document, such as “house rules,” make sure you read these, too. If there is any part of the written document that you don’t understand, get advice—but not from the people who want you to sign it. If you want your rights protected, you will have to see to it yourself.
Legally, a written agreement can be typed or written down in longhand on any kind of paper, in any words, so long as the terms are legible. However, as a practical matter, nearly all landlords use standard printed forms that they buy in stationery stores or get from landlord associations. These forms have been prepared by lawyers or real estate associations, and they are usually as favorable as possible to the landlord. We will discuss some of the most common provisions below.
If the lease offered to you by the prospective landlord is not satisfactory, it is legal and simple to change it if both parties can agree on the changes. All you do is cross out unwanted portions, write in desired changes, and have all parties who are going to sign the document initial the changes. Make sure that you sign the lease at the same time as the landlord, and that you get a copy then and there. This assures both sides that no changes can be made after only one party has signed.
FORM
You’ll find downloadable copies of the California-specific fixed-term lease and rental agreement forms on the companion page for this book on the Nolo website at www.nolo.com (see Appendix B for the link to the companion page). If your landlord doesn’t have a written rental agreement, or proposes using a substandard one, use one of our forms instead. They are fair to both landlord and tenant. The only clause that is different in the month-to-month rental agreement is the term of the tenancy (Clause 4). The California Landlord’s Law Book: Rights & Responsibilities, by Nils Rosenquest (Nolo), includes these forms, with complete instructions.
| Language Note on California Leases and Rental Agreements |
|---|
| If a written lease or month-to-month rental agreement is negotiated primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, the landlord must give the tenant a written translation of the lease or rental agreement before it is signed. The only exception is if the tenant provides his or her own interpreter, who can fluently read and write English and the non-English language, and who is not a minor. (CC § 1632.) |
Which Is Better, a Lease or a Month-to-Month Rental Agreement?
If you have a lease for a substantial term, like a year or more, you are assured that the landlord cannot end your tenancy or raise the rent so long as you pay your rent on time and meet your other obligations under the lease and the law. This kind of security is extremely valuable where housing is hard to find and rents are rising.
If your unit is covered by the state or a local rent control and eviction control ordinance, your need for the protection that a lease provides is lessened.
Nevertheless, such laws do allow some rent increases, and they usually allow the landlord to evict in order to move him- or herself or a relative into the place. A lease will normally protect you against these dangers.
Of course, if you expect to be moving in a very short time, you may prefer a month-to-month rental agreement, so that you can leave simply by giving 30 days’ notice. But don’t be too sure that a month- to-month tenancy is what you want. If you’re in a tight rental market, it is usually not difficult to “break” a lease if you have to. We discuss this possibility in Chapter 12. Basically, the rule is that if you have a lease and move out before the term is up, the landlord can sue you for the rent until the lease runs out, but must make a reasonable effort to find another tenant. Once a new tenant moves in, your responsibility for the rent ends.
If you prefer a lease, but are worried about some specific event that might force you to leave the area, consider simply providing for that event in the lease. If your boss might transfer you to Phoenix, put a provision in your lease saying something like this: “Tenant can terminate this lease upon 30 days’ written notice, provided that, with such notice, Tenant also gives Landlord written proof from Tenant’s employer, saying that Tenant is being transferred to a specified location that is more than one hundred miles from Tenant’s current workplace.”
As a general rule, a landlord and tenant are free to agree to just about anything, although market conditions and common practices often affect what the parties agree to. However, landlords and tenants are required to comply with both state and local laws. (For instance, rent control laws limit rent increases and grounds for eviction.) Similarly, state laws place a number of requirements on the landlord (for instance maintaining habitable premises, returning security deposits, etc.). If a provision of a rental agreement conflicts with either state or local law, then it is invalid. Landlords often put provisions in a rental agreement that are not valid, even if you sign the agreement.
An “illegal unit” is one that was constructed without the proper permits, or it violates planning codes. Even when zoning rules permit a second unit, that unit must be constructed using proper permit, and if it was not, it is an illegal unit—one that should never have existed in the first place.
Illegal units are often referred to as “in-law units” or “granny units.” However, not all in-law units or granny units are illegal—landowners can properly build and obtain permits for units that they call by those names. And even an illegal unit can become legal after the fact: State law authorizes local government to adopt ordinances that legalize these units (often called “accessory dwelling units” or “ADUs”). A series of new state and local laws have made it easier for property owners to legalize some ADUs and create new ones, even though doing so might otherwise violate zoning restrictions.
As an example of post-construction permitting, in December 2017 the city of Santa Rosa responded to the loss of housing caused by the October 2017 fires by passing an ordinance that, among other things, offered amnesty to illegal units constructed without permits (though instances of code noncompliance could still result in penalties). (Santa Rosa City Code §§ 20-22.030 and following.)
Illegal units are often found in basements of homes and apartment buildings, garages, converted commercial spaces, and rear yard sheds and work- spaces. Some cities have tens of thousands of these units, and they constitute a large part of their housing supply.
Learning Whether Your Unit is Illegal
To find out whether your unit is illegal, you will need to look at records found at your planning or building departments. Much of this information is online:
Should You Rent an Illegal Unit?
While they may not have the proper permits, many illegal units are perfectly adequate living spaces. If you think the unit might be illegal, pay extra close attention to the condition of the unit. For instance, test the hot and cold water on all plumbing fixtures, make sure there are enough electrical outlets to meet your needs, and test the heating system.
There are, however, some risks involved in renting an illegal unit. For example, a nosy neighbor could call the building inspector and the building inspector might determine that the unit is illegal. The inspector might then require the landlord to legalize or to demolish the unit. The landlord might have to evict you.
So, as an extra precaution, you might want to contact the previous tenant and ask about the condition of the unit and whether the neighbors seemed to accept the unit’s being there.
Also, as unfair as it might sound, a landlord who wants to get rid of you could use the unit’s illegality as a reason for eviction. Remember, it is unlawful for the landlord to rent the unit to you in the first place: Because the thing shouldn’t even be there, it cannot lawfully be rented. In an eviction proceeding the landlord could argue that he or she has a right to evict you because the unit is illegal (this might not work in a city with rent control or just cause for eviction). (North 7th Street Associates v. Constante, 7 Cal.App. 5th, Supp. 1 (2016).)
On the other hand, the landlord too could face problems if the illegal nature of the unit comes to light in court. Tenants in an eviction proceeding could argue that they should not be required to pay rent. Tenants can also sue the landlord for recovery of all rents that were illegally collected for the unit. Tenants who lived in illegal units have also success- fully sued their landlords for fraud, misrepresentation, and wrongful eviction.
One final word of caution: If the illegal unit you’re renting has substantial code noncompliance, those problems could translate to uncomfortable or even dangerous living conditions for you. If you call the building inspectors, it is quite possible that they will cite the unit as “illegal” and require the landlord to “legalize” it. Legalization could require the landlord to demolish the unit, remove it from housing use, or rehabilitate it in a way that would require you to move. Also, if you complain and the landlord won’t fix things, you’ll be tempted to use one of the tenant remedies (rent withholding or repair-and-deduct) that are designed to force landlords to comply with legal standards. But think ahead: If you avail yourself of one of these remedies (each of which involves your paying less rent than the monthly sum), and the landlord terminates the lease for nonpayment of rent and files an eviction lawsuit against you, you might find yourself out of a place to live when the illegal nature of the rental comes to the court’s attention. In short, choosing to live in an illegal rental that has serious deficiencies can result in an unpleasant choice between putting up with substandard conditions and risking losing your home.
Multiple Tenancies in One Unit
It is becoming more and more common for landlords to rent separately to multiple, unrelated tenants living in the same unit, with a separate rental agreement (oral or written) for each tenant. These are often called “rooming house” or “boarding house” arrangements and occur in single-family homes, apartments, or flats. Tenants have their own rooms and access to common areas such as the kitchen, hallway, living room, and so on. Tenants pay their own rent directly to the landlord. When one tenant moves out the landlord replaces that tenant with someone whom the landlord chooses.
Under this arrangement, if another tenant does not pay his or her rent, that lapse has no direct impact on you—that problem is between that tenant and the landlord. By comparison, if you and the nonpaying tenant had signed the same rental agreement, you would be equally responsible for any rental shortfall. (See Chapter 2, “Sharing a Home.”)
Living in a rooming house situation has its dis- advantages. As with any situation where tenants share a unit, everybody has to get along. However, in a rooming house arrangement, you have much less power in dealing with a tenant you don’t get along with and whom you don’t share a rental agreement with. Instead, you must rely on the landlord to take some action. More importantly, if one of the tenants leaves, the landlord fills the vacancy and may not care much about how compatible you and that new tenant might be.
Finally, a rooming house arrangement could be illegal because, technically, each tenancy could be considered a separate unit. For instance, a property built as a single-family home is supposed to have only one unit (unless there is a legalized “granny unit”). With three or four separate tenancies, and three or four separate units, the setup could be considered a violation of building and zoning laws. (See “Illegal Units,” above.)
Your lease or rental agreement might be as short as one page or longer than ten. It could be typed or handwritten, easy to understand, or full of legalese. Most landlords use preprinted forms they buy in stationery stores, order from a landlords’ association, or find in a software program.
Most leases and rental agreements are prepared by real estate associations and have standard pro- visions. You’ll often see them as numbered para- graphs. Unfortunately, the provisions are often dressed up in fancy legal language and complicated sentences. This section describes the plain meanings for the most common terms you’ll find in a lease.
Before getting started on the list below, under- stand that landlords don’t have complete freedom to write clauses any way they wish. Some issues (such as the maximum security deposit a landlord can charge) are regulated by federal, state, or local law, though this doesn’t stop landlords from deviating from the rule, through ignorance or intentionally. Other issues (such as the parking policy) are up for grabs.
Finally, be willing to refuse to sign an agreement that contains terms that you don’t believe you can comply with.
In most cases, your written agreement will take precedence over any oral promises that your landlord made before signing the agreement. It is therefore important that any oral promises be included in the rental agreement. For instance, if the landlord said that the rent included a parking space, make sure the parking space is included in the description of the premises (discussed below).
Many agreements have blank lines at the end for “Additional Provisions.” Make sure any promises not in the agreement are included here.
State law (CC §§ 1962 and 1962.5) provides that the rental document must state the name, phone number, and address of both the manager and the owner (or person authorized by the owner to receive notices, demands, and papers announcing lawsuits against the owner). The document must also state when, where, and to whom rent is to be paid; and the form of payment, such as check, money order, or cash. Even if every other aspect of the lease or rental agreement is reflected in an oral agreement, the landlord must write down the above information and give it to the tenant.
Instead of putting this information in each rental agreement, the owner may choose to post notices containing the same information in the building. A notice must be posted in at least two easy-to-see places (including all elevators).
The owner must keep this information current. An owner who fails to follow this law may not evict for nonpayment of any rent that comes due during any period of noncompliance (see Chapter 14 for details). Also, the person who rented the dwelling for the owner automatically becomes his or her agent for receiving notices, demands, and notification of lawsuits (such as a summons).
The tenant might be referred to as the “lessee” and the landlord as the “lessor.” They might also be called the “parties” to the agreement. If a property manager or company is authorized to receive notices and legal papers on the landlord’s behalf, that person’s or company’s name and address should be in the agreement. If you can, get an email address as well.
Landlords typically want all adults who will live on the premises, including both members of a couple, to sign the lease or rental agreement.
Doing this makes everyone who signs responsible for complying with the terms of the lease, including payment of rent. To remind tenants of this rule, many leases and rental agreements state that all tenants are “jointly and severally” liable for paying rent, reimbursing the landlord for property damage, and abiding by terms of the agreement. This language means that the misdeeds of one tenant (such as keeping a pet in violation of a no-pets policy) will allow the landlord to evict all of you.
Chapter 2 provides details on the legal responsibilities of tenants and cotenants and related issues such as adding a new roommate. “Families With Children and Overcrowding” in Chapter 4, dis- cusses occupancy limits that may restrict who lives in the rental unit.
The property address is often called “the premises.” Your lease or rental agreement should also include details on any furnishings, parking space, storage areas, or other extras that you have agreed to.
The term is the length of the rental. The document should include the beginning date and whether it’s a month-to-month tenancy or a lease. If it’s a lease, the ending (termination) date should also be specified. Leases often have a term of one year. Sometimes a lease will say that after the year, the tenancy becomes month to month. Rent control ordinances with eviction protection also allow a tenant to remain in the premises after the term has expired. The important differences between leases and rental agreements are discussed above. Chapter 14 explains how tenancies end.
Leases and rental agreements should specify the amount of rent due each month, and must state when and where it’s due, acceptable forms of payment (such as cash, check, electronic funds transfer) and late fees. Chapter 3 covers rent rules in detail.
Leases and rental agreements must state the day of the month that rent is due, usually the first day of the month. It’s important to pay rent on time because “habitual late payment” of rent can be a reason for eviction, even in cities with eviction protection. Many agreements will say “Rent is due on or before the first day of each month and, if not paid by the fifth day of the month, the landlord may impose a late charge of $[X.XX.]” This five- day period is usually referred to as a “grace period,” which is not required by law. When landlords extend a grace period, many people mistakenly conclude that rent is due on the fifth of the month, not the first. They accordingly pay on or before the fifth of the month. Although they might have avoided the late fee, they are technically late with the rent and face the risk of eviction for “habitual late payment.”
Expect to see details on the dollar amount of a security deposit, last month’s rent, or both. Chapter 13 explains state laws that govern the size, use, and return of security deposits and why it’s important to know your landlord’s cleaning and maintenance requirements.
The landlord should state who pays for what utilities. Normally, landlords of multiple-unit properties pay for garbage and for water. Landlords of single- unit properties, such as a rental house, often pay for water if there is a yard. Tenants usually pay for other services, such as phone, gas, and electricity. If tenants will share gas or electric meters (where, for example, a tenant’s meter also services a common area, or where one meter measures more than one rental’s use), the rental document must disclose this, and how charges will be allocated. (CC § 1940.9.)
Most leases and rental agreements include a clause in which you agree that the premises are habitable (in livable condition) and you promise to alert the landlord to any defective or dangerous condition. Chapters 6 and 7 cover tenants’ important rights and responsibilities regarding repair and maintenance. If it’s already obvious that the premises are not habitable, beware. Although signing a lease with such a clause will not prevent you from legitimately asking for repairs, this is no way to begin your tenancy. (See the sidebar below, “Inspect Before You Sign.”)
A carefully written lease or rental agreement will include a statement that makes you responsible for keeping the rental premises clean and in good condition and obligates you to reimburse the landlord for the cost of repairing damage caused by your abuse or neglect. Many leases and rental agreements also tell you what you can’t do in the way of repairs—such as painting walls or adding built-in bookshelves—without the landlord’s written permission. Regardless of what the rental agreement might say, the landlord is legally required to maintain the unit in habitable condition. Chapters 5 and 6 cover the rights and responsibilities of landlords and tenants regarding repairs and maintenance, and your options if your landlord fails to provide habitable housing.
Your lease or rental agreement may require you to carry renters’ insurance to cover damage and other losses to the rental. (See Chapter 16 for details.)
California law specifies when landlords may legally enter rented premises—for example, to deal with an emergency or to make repairs— and the amount of notice required. (CC § 1954.) Chapter 5 gives the specifics concerning the landlord’s right to enter rental property and tenant privacy rights. So no matter what this provision says, the landlord can legally enter only for those reasons allowed under Civil Code Section 1954. There is probably no need to negotiate over this provision, because the landlord is limited by state law, no matter what the rental agreement states.
Some leases and rental agreements require you to notify the landlord in advance if you will be away from the premises for a certain number of consecutive days (often seven or more). Such clauses may give the landlord the right to enter the rental unit during your absence to maintain the property as necessary and to inspect for damage and needed repairs. You’ll most often see this type of clause if you live in a cold-weather place where, in case of extremely cold temperatures, landlords want to drain the pipes to guard against breakage.
Most form leases and rental agreements contain a clause forbidding you from using the premises or adjacent areas, such as the sidewalk in front of the building, in such a way as to violate any law or ordinance, including laws prohibiting the use, possession, or sale of illegal drugs. These clauses also prohibit you from intentionally damaging the property or creating a nuisance by annoying or disturbing other tenants or nearby residents—for example, by continuously making loud noise. Leases and rental agreements may prohibit smoking, in individual units as well as in common areas. Landlords often impose “house rules” that govern noise, proper trash removal, and so on.
Rental agreements and leases often include language that limits who may stay there and your use of the rental property—for example, no plants on wood floors or bikes in the hallway—these restrictions may also be in a separate set of “house rules.” Basically, landlords can set any kind of restriction they want, as long as they are not discriminatory or retaliatory or otherwise violate state law. For instance, they cannot prohibit home day care
operations (see “Family Day Care Homes,” below). Landlords are allowed to restrict or even prohibit smoking in part of or even all of the premises. (CC § 1947.5.) Other common restrictions involving pets, home businesses (other than day care), sublets, and guests are discussed below.
Always inspect the rental unit thoroughly before you sign a lease or rental agreement. Take your time and look carefully before signing off on a clause that states that the rental is in fine shape. Check to make sure that the electrical outlets and plumbing fixtures are working properly. Look for damage, signs of leaks, dirt, mildew, pest or rodent problems, and obvious wear and tear. A sample Checklist form is at the end of this chapter. Write down (be as specific as possible) both serious problems, such as a broken heater or leaking roof, and minor flaws such as a stained kitchen counter, dirty drapes, or faded paint. Back up your written statement with photographs. (See “How to Check a Place Over,” below, for specific advice.)
As much as possible, try to get your landlord to fix problems before you move in. Write down any agreement in a letter of understanding as described in “Get All Promises in Writing,” below.
Keeping tabs on the condition of the rental at move-in is an excellent way to protect yourself when it comes time to move out and get your security deposit returned. Without good proof of the condition of the premises at the start of the tenancy, your landlord may keep all or part of your deposit, claiming you left the place filthy or damaged it—for example, stained the rug, cracked the bathroom mirror, or left behind a broken garbage disposal. Your initial inspection (and photos) will establish that the problems existed at the start of the tenancy and are not your fault. Chapter 13 discusses how to avoid disputes over security deposits at move-out time.
The San Francisco Society for the Prevention of Cruelty to Animals (SPCA) offers pet-owning tenants helpful materials on how to negotiate with a landlord. The SPCA also offers landlords:
For more information, contact the San Francisco SPCA at 201 Alabama, San Francisco, CA 94103, 415-554-3000, or check their website at www.sfspca.org.
No Pets
Your landlord has the right to prohibit all pets, or to restrict the types allowed—for example, forbidding dogs or cats, but allowing birds. However, a landlord may not prohibit “service” or “comfort” animals used by people with a physical or mental disability, as provided by the fair housing laws. You’ll need to follow specific procedures if you wish to keep a service or comfort animal. (For more information, see Chapter 4, “Discrimination.”) Many landlords spell out pet rules—for example, that tenants will keep the yard free of all animal waste or that dogs will always be on leash.
Landlords may not charge a nonrefundable pet fee. (See the discussions of deposits in Chapter 13.)
Landlords may prohibit you from running a business from your home, by including a clause specifying that the premises are “for residential purposes only.” These provisions are intended to protect the landlord for additional legal liability if some is injured on the premises, or if the use violates local zoning or building codes. The growing popularity of working from home raised the level of complexity of this issue, and you won’t find an easy answer as to whether a particular home business use might be legal. Here are some factors to consider:
If you’re simply working at a computer and using your phone for business, your business activity probably won’t take you out of the “for residential use only” realm. On the other hand, having inventory on hand, an advertising sign in your window, a business license at the premises, and customers coming in and out all day long probably qualifies as nonresidential use.
Special rules apply to home-based day care. If you want to run a day care operation in your rented home, your landlord cannot flatly prohibit it. (H&S § 1597.40.) You must be licensed, and part of that process will involve an on-site inspection, to determine whether the physical space comports with minimum requirements under state law. (See “Family Day Care Homes,” below.)
No Assignments or Sublets Without Landlord Permission
Most careful landlords will not let you turn your rental over to another tenant (called an “assignment”), let someone live there for a limited time while you’re away (called a “sublet”), or let you rent an extra bedroom to another occupant, with you as the “landlord” (also called a sublet), without their written consent. In this instance, a landlord can- not unreasonably withhold consent to sublet. (See Chapter 12 for more on the subject.)
Limits on Guest Stays
It’s common for landlords to limit overnight guests, such as allowing a guest for no more than ten days in any six-month period, with written approval required for longer stays. Landlords do this to keep long-term guests from gaining the status of full-fledged tenants who have not been screened or approved and who have not signed the lease or rental agreement.
Prohibitions Against Short-Term Rentals (Airbnb)
Short-term rental websites and services such as Airbnb have become very popular in California, particularly in tourist destination cities such as San Francisco and Santa Monica. Landlords universally hate the practice—from their point of view, the tenant has simply turned the rental into a hotel, making money off the landlord’s property and introducing added wear and tear, annoyance from neighbors, and the risk that unscreened occupants will cause trouble. Arguably, a general “no sub- letting or assigning without permission” clause would cover and prohibit the situation, but to be sure, landlords have begun inserting clauses in their rental agreements and leases that specifically address the practice and forbid it, warning that a breach can lead to eviction. In some cities, such as San Francisco, it is unlawful for a tenant to rent using Airbnb (or similar platforms) without the written permission of the landlord.
Such a clause is probably legal and enforceable, even in cities whose own ordinances attempt to govern the practice (no such ordinance requires landlords to allow short-term renting). If you see such a clause in your lease, or if the law requires your landlord’s consent, think twice before listing your rental. Landlords can easily find out if you are using the premises for such a business, and may use this as a reason to evict.
Subletting to People at Risk of Becoming Homeless
Under CC § 1942.8, a tenant may, with the consent of the landlord, allow a person to stay temporarily if that person is at risk of homelessness. If the landlord consents, the owner may increase the rent temporarily while the person is residing at the property. Under this law, the agreement to temporarily allow the person to occupy the unit must be in writing. The temporary occupant must comply with the rental agreement and all rules and regulations, and the existing tenant(s) on the property are legally responsible for the temporary occupant’s actions. The rules regarding eviction of the temporary occupant are different from those of tenants and are spelled out in detail in Civil Code Sections 1942.8(g) and (h).
The temporary sublet law was introduced in response to the high number of people who lost their rentals because of their inability to pay rent (or because they could not find housing). Though the law became effective in January 2020, before the advent of the COVID-19 pandemic, its measures became very relevant in situations where people needed to move in with others in order to allow a roommate to isolate, and for those who lost their rentals when their lost or diminished income could not cover the rent (in spite of pandemic- inspired evictions bans).
In addition to disclosures described here (under “Utilities” and “Megan’s Law Database”), California requires landlords to make the following disclosures, either in the rental document or elsewhere:
Many lease agreements have provisions that prohibit putting signs in windows or the outside of your unit. These provisions are generally legal, but Civil Code Section 1940.4 creates an exception that allows tenants to display political signs regarding initiatives, elections to public office, and matters that will be voted on by a legislative body, a public commission, board, or another elected public body. The signs must be less than six square feet in size. Civil Code Section 1940.4 does not apply if it violates the rules of a condominium association, cooperative housing development, or planned unit development. The tenant posting the sign must comply with any local ordinance that has time limits on when the signs can be posted. In the absence of any legislated limits, landlords may require that the signs be removed within a “reasonable” time period after being posted. A “reasonable” time period is presumed to begin at least 90 days before the election and end 15 days after it. Remember, Section 1940.4 applies only to political signs, and a land- lord is otherwise allowed to restrict posting signs around the property.
| Family Day Care Homes |
|---|
| Under state law (H&S § 1597.40), a landlord may not forbid a tenant’s use of rental premises as a licensed family day care home. If you obtain a state license to run a family day care home, you may do so legally—regardless of whether your lease or rental agreement prohibits the operation of a business on the premises or limits the number of occupants. Local zoning and occupancy limits also don’t apply to a state-licensed family day care home. If you want to run a family day care home, you must notify your landlord in writing of your intent, after having first obtained a state license, 30 days in advance of starting the child care operation. |
Every written lease or rental agreement must include a specific, state-written paragraph that tells tenants about the statewide database containing the names of registered sexual offenders. Members of the public may view the state’s Department of Justice website to see whether a certain individual is on the list (www.meganslaw.ca.gov).
If you and the landlord get involved in a lawsuit (such as an eviction lawsuit) arising out of the lease or rental agreement, each side will usually pay its own attorneys’ fees. This rule is subject to two exceptions: Some California statutes provide for attorneys’ fees to the prevailing party in a lawsuit for certain violations of the law (that is, the loser pays the winner’s fees and costs). For example, statutes covering lawsuits for discrimination, retaliatory eviction, or rent control violations specify that the prevailing (winning) party can recover fees and/or costs.
The second exception arises when a term in a lease agreement states that the winning party in any litigation related to the lease can recover fees and costs from the loser. In that case, if you win, then the landlord pays your fees; and if the landlord wins, you pay the landlord’s fees and costs.
You might encounter a lease that states that a losing tenant will pay a winning landlord’s fees and costs (but not the other way around). Fortunately for tenants, California law will not countenance this one-sided provision. The judge will interpret this provision to require payment of attorneys’ fees to the prevailing (winning) party, no matter who that is. (CC § 1717(a).) Therefore, if you win, you get your fees paid by the landlord.
You’ll often see a general clause stating that any violation of the lease or rental agreement by you, or by your guests, is grounds for terminating the tenancy according to the procedures established by state or local laws. Chapters 14 and 15 cover the legal rules regarding termination and evictions.
Owner Move-In Clause
If the rental is subject to The Tenant Protection Act of 2019 (the TPA, a law that established rent control and just cause eviction statewide, with a few exceptions), the landlord may place a clause in the lease that allows for termination with 60 days’ notice if the landlord (or a specified relative) intends to move into the rental. The relatives include the landlord’s spouse, domestic partner, children, grandchildren, parents, or grandparents. Be sure you understand the import of this clause: The lease will terminate before the date it normally would if the landlord (or relative) “decides to occupy” the rental as a residence. (See Chapters 3 and 14 for more information on the TPA.) (CC § 1946.2(b)(2)(A)(ii).)
The legislature has determined that certain provisions found in leases and rental agreements are “unconscionable” or unacceptable. Civil Code Section 1953 invalidates them (this means that a judge will not enforce them). In practice, a land- lord’s attempt to get you to “waive” (give up) or modify your rights will be fruitless. These rights include:
Because lease clauses waiving these rights are not enforceable, you might be better off focusing your efforts in getting your landlord to modify other provisions of the agreement. But understand that if you remain mum, you risk lulling the landlord into thinking that the clauses are legitimate, and the landlord might decide to invoke them later. True, you should eventually prevail (perhaps in court or, if you’re lucky, when the landlord’s lawyer sets him or her straight), but it will be a hassle, to say the least. Are you better off pointing out the problem at the outset? That too has its risks, the worst being that the landlord will consider you a troublemaker and come up with a reason not to rent to you. It’s a difficult call.
Below are typical examples of unenforceable provisions.
This provision says that if the landlord is negligent in maintaining the place and you, your family, guests, or business invitees (such as delivery persons) are injured; or if your property is damaged (for example, if someone falls down broken stairs), the landlord is not responsible for paying for your losses. This provision is called an “exculpatory” clause. Under state law, such a provision is invalid. (CC § 1953.) Chapter 9 discusses landlord liability for tenant injuries.
This provision requires you, the tenant, to repair or maintain the premises. Unless your agreement is based on a legitimate reduction in rent, this type of provision is usually illegal. (CC § 1942.1.) In any event, this clause does not relieve the landlord of the legal obligation to see that the place complies with the housing codes and the duty to maintain a fit and habitable rental. (See Chapter 6 for more information.)
California tenants have the right, in certain circumstances, to make necessary repairs and deduct the cost from the rent (this remedy is known as “repair and deduct,” and is explained in detail in Chapter 6). A lease provision that purports to waive these rights will not be enforced by a judge.
Cities that have rent control ordinances forbid lease or rental agreement provisions by which a tenant gives up or waives any rights granted by the rent control ordinance, such as rent ceilings or just cause eviction rules. A landlord who attempts to circumvent a rent control rule may be fined or even face criminal prosecution. (See Appendix A and Chapter 3.)
This provision says the landlord can sue to evict you or can raise the rent or change the terms of the lease without giving notice (such as a three-day notice to pay your rent or vacate) required by law. It is not valid. (CC § 1953.)
Many forms have a provision that gives the land- lord the right to come into your place to inspect it, or for other purposes. Under state law, the landlord’s right to enter the dwelling is limited to certain reasons, and any attempt to add to these reasons in the lease or rental agreement is void. (CC §§ 1953 and 1954.) We discuss your rights to privacy in detail in Chapter 5.
This provision permits the landlord to come in and throw you out if you don’t pay the rent, without giving you legal notice or going to court. It is not valid. (CC § 1953(a)(4).)
One variation on this provision says that you waive your right to a trial by jury in any eviction lawsuit brought by the landlord. It is not valid. (CC § 1953.) Similarly, a lease clause in which the tenant agrees that any lawsuit concerning the lease or its implementation will be tried before a judge without a jury is void. (Grafton Partners LP v. Superior Court (PricewaterhouseCoopers LLP), 36 Cal.4th 944 (2005).)
Keep in mind that you and the landlord may still decide, once litigation has begun, that you will submit the case to a judge and not a jury. But an advance waiver of the right to a jury trial is not a legal option in California. Rental agreement provisions requiring the parties to arbitrate a dispute with a “neutral” third party are void under CC § 1953(a)(4). ( Jaramillo v. JH Real Estate Partners, Inc., 111 Cal.App.4th 394 (2003).)
This provision prevents you from appealing a court decision in any eviction lawsuit. It is not valid. (CC § 1953.)
Provision Setting Notice Period
This provision sets the amount of time the landlord must give you before a notice of termination or rent raise or change in terms takes effect. Under CC § 1946.1, time periods that differ from state rules are not legally valid. If you are a month-to- month tenant, the law requires that the landlord give you at least 30 days’ notice (60 days for a termination notice in the case of a tenant who has rented for a year or more). (See “Rent Increase Notices” in Chapter 3 for exceptions.)
Cash Rent
Your lease or rental agreement may not demand that you pay the rent solely in cash or by electronic funds transfer. (CC § 1947.3.) Landlords may demand cash rent only after you’ve given them a check that bounces, or a money order or cashier’s check whose issuer has been told to stop payment. Even then, the demand for cash rent may last only three months. If you see a provision such as this, you might want to raise the issue. If the landlord gives you the option to pay by check, cash, or electronic funds transfer, you have your choice.
Provisions That Might Be Invalid Depending on the Circumstances
The landlord’s lease might contain provisions that are invalid due to the makeup of the resident mix or the manner in which monetary consequences are calculated.
Late Charges
This provision requires the tenant to pay a “late charge” if the rent is paid late. The charge may be set as a percentage of the rent (such as 4%), a flat charge (such as $10), or a flat charge per day (such as $5 each day the rent is late). (See “Late Fees” in Chapter 3.) This provision is valid if the amount is a reasonable estimate of the amount the lateness of your payment will cost the landlord— that is, the administrative cost of processing the late payment and the loss of interest on your rent. However, if the charge is so high as to penalize you for being late, the charge is probably a “penalty” provision, which is invalid. If the late charge seems suspiciously high to you (for example, a $100 charge on an $800 rent payment late by a few days), ask the landlord to justify it or lower it. Two courts have found a late charge of $50 to be an unlawful pen- alty. (Orozco v. Casimiro 212 Cal.App.4th Supp. 7 (2004), and Del Monte Properties and Investments, Inc. v. Dolan, 22 Cal.App.5th Supp. 20 (2018).)
We hope you enjoyed this sample. The complete book is available for sale here at Nolo.com.
California tenants have many rights, especially those lucky enough to have rent control. But knowing and enforcing these rights can be difficult. Fortunately, California Tenants’ Rights, the leading tenant guide for over 50 years, provides all the information and key forms tenants need to:
The 24th edition includes updated information on state eviction rules and forms, local and statewide rent control ordinances, and additional anti-discrimination protections.
“A whole book of good ideas.”—Los Angeles Times
“Want to break a lease? The landlord won’t make needed repairs? Want to get your deposit back when you move out? These and many other questions … are answered in detail in California Tenants’ Rights”—Oakland Tribune
9781413331844 Number of Pages Included FormsThese forms are accessible online. After purchase, you'll find the link in Appendix B.
Attorney J. Scott Weaver, coauthor of the twentieth edition of California Tenants' Rights, has been a San Francisco tenant and housing activist for over 40 years. He's spent the last 30 years exclusively representing San Francisco Bay Area tenants. Scott has litigated several hundred tenant cases involving eviction, wrongful eviction, and habitability issues (including mold, asbestos, and bedbugs), and has brought tenant class action lawsuits. He has taught landlord tenant law at various legal education seminars.
Looking for a house or an apartment to rent is often a frustrating and time-consuming task. Because it is human nature to become harried and frazzled under pressure, many people make mistakes at this stage that later turn out to be costly, both in time and money. Try to stay cool.
Before you start looking for a place, make a list of your housing needs and priorities, including:
| Organize Your Records |
|---|
| It is extremely important that you keep good records. Get a large manila envelope or file folder in which to keep all papers having to do with your rental transaction. Misplacing and losing papers (deposit agreements, leases, rent receipts, and so on) is a common mistake to avoid. Your landlord is in business and has probably learned how not to make such basic mistakes, so you should do the same. Set up a safe place in which to save your papers, receipts, canceled checks, and anything else that you think might possibly be important later. |
Once you have a list of your priorities, it’s time to start looking. Craigslist and other online resources will usually be your best bet, but also get leads from people you know who live or work near where you want to live. Walk the neighborhoods that interest you and look for “Apartment for Rent” signs. Other good resources include local real estate offices, property management firms that handle rentals in the area, and college housing offices or alumni.
Before you start looking for a place, you should know a little about rental agreements. First—the most important rule—don’t sign any papers until you understand what’s in them, or you might regret it later!
Landlords rent their properties using one of these methods:
An oral lease or rental agreement is made with- out anything being written down—you just talk over what the deal is and agree to it. The other two, the written lease and the written rental agreement, have all the terms you agree to written down on paper, which you and the landlord sign. Let’s look at each in some detail.
An oral agreement is just as valid (enforceable by a court) as a written one, as long as it is for a period of one year or less. The landlord agrees to let you move in, and you agree to pay a certain amount of rent on some schedule, like weekly, every other week, or every month. Your payment of rent can be evidence of an agreement to rent, so it’s best not to pay in cash (you’ll want a canceled check or an electronic trail that shows you paid the rent).
If you pay rent monthly, your agreement will be presumed to be month to month. If you pay weekly, then it is week to week. Most oral agreements are month to month and require a 30-day notice for either party to terminate. But after you have lived there for more than a year, the landlord must give a 60-day notice to terminate your tenancy (see Chapter 14 for more on terminations). However, under the Tenant Protection Act, many tenants are protected from excessive rent increases and arbitrary evictions (discussed in Chapters 3 and 14).
Likewise, local rent control laws limit the land- lord’s ability to increase rents. Many local laws also require a landlord to show a “just cause” or good reason to evict you.
If you live in an area where a state of emergency has been declared due to a natural disaster or man- made disaster, you might have some protection from rent increases greater than 10%. (See Chapter 3 for a fuller explanation.)
An oral agreement has some advantages: It is relatively informal, and you aren’t subjected to the long list of terms and rules contained in most written leases and rental contracts. But as time goes by and circumstances change, there may be disagreements about what the oral agreement said. Then, if a disagreement arises, both sides end up in front of a judge who has to decide whose recollection of the agreement to believe. For this reason, even if you make an oral agreement, it is wise to get some of the landlord’s promises in writing. For example, if your landlord promises to make specific repairs, allow you to have a pet, or do anything else that you want to make sure the landlord remembers, write it down and have the landlord date and sign it.
If a landlord will not put agreements in writing, the next best thing to document the promise is to write a confirmation letter or email. An example is: “Dear Mr. Jones, It was a pleasure meeting with you today. Thank you for accepting me as a tenant and agreeing to install a washing machine in the laundry room before I move in next month. I am excited about moving into this house.” Email is perfectly acceptable and has advantages because it will be automatically dated. If you have the right email address for the landlord, he or she won’t be able to give you the “I didn’t get it” excuse.
Now, suppose the washing machine never shows up, and you want to sue for a reduction in rent, arguing that you’re paying for a rental with a washing machine, but have not received it. If Mr. Jones did not dispute your version of the agreement (by writing back, for example), your letter can be introduced in court as proof that the promise was indeed made, and was part of the reason you rented the place. (See Chapter 7 on how to get the landlord to follow through on promised repairs and improvements.)
A written lease and rental agreement are basically the same except for one important difference: The lease fixes all the terms of the agreement for a given period of time—most commonly, one year. When you rent under a lease, your rent cannot be raised until the lease runs out, nor can you be told to move unless you break the terms of the lease or the law. You, too, are expected to perform your obligations under the lease (including rent payments) until it runs out. For instance, if you move out before the year is up, you could be held liable for the remainder of the rent. (See Chapter 12, “Breaking the Lease.”)
A written rental agreement—often called a “month-to-month” agreement—has everything written down, just like the lease, but the time period of your tenancy is not fixed to a period beyond one month. The agreement self-renews every month until you or the landlord terminate it. This means that you can move out or your landlord can order you to move out on 30 days’ notice (if you’ve lived there for more than a year, the landlord must give you 60 days’ notice). And if you’re renting under a government-subsidized program, you’re entitled to 90 days’ notice before the landlord can terminate your tenancy.
For rent increases, 30 days’ notice is required, but if your landlord raises the rent more than 10% of the lowest rent charged within the previous 12 months, the landlord must give you 60 days’ notice. (See “Rent Increase Notices” in Chapter 3 for a full explanation of these rules.) Some communities have rent control that limits how much a landlord can increase a tenant’s rent.
Many rent control jurisdictions (and some that don’t have rent control) have imposed “just cause for eviction” protections that allow eviction for certain specified reasons only. (See Appendix A for information about determining if your city has “just-cause” eviction provisions.) And as of 2020, statewide rent control will cover many previously unprotected tenants (see Chapter 3).
If you live in an area where a state of emergency has been declared due to a natural disaster or manmade disaster, you might get relief from rent increases greater than 10%. (See Chapter 3 for a fuller explanation.) These rules regarding rent increases and terminations continue to apply when the rental property is sold mid-lease or mid–rental agreement. The new owner simply steps into the shoes of the old owner, bound by the agreements that come with the property. The new landlord must provide you with information on how to contact the new owner, as well as the address where you should send the rent.
Be careful! Because leases and rental agreements look so much alike, a form can look like a lease and sound like a lease, and even cover a year’s period, but contain a provision that rent can be raised or that the agreement can be terminated on 30 days’ notice (or 60 days for tenants who have been in the rental for a year or more, and 90 days for subsidized tenancies). These rent increase and termination provisions control: The form is really only a written rental agreement.
Read the rental document carefully! Most pre- printed rental agreements are on forms prepared by landlord associations and often have detailed provisions—most of them in favor of the landlord. It is crucial that you read the entire lease or rental agreement and understand it before you sign it.
You will be bound to these terms for as long as you live in the unit. If the main document refers to another document, such as “house rules,” make sure you read these, too. If there is any part of the written document that you don’t understand, get advice—but not from the people who want you to sign it. If you want your rights protected, you will have to see to it yourself.
Legally, a written agreement can be typed or written down in longhand on any kind of paper, in any words, so long as the terms are legible. However, as a practical matter, nearly all landlords use standard printed forms that they buy in stationery stores or get from landlord associations. These forms have been prepared by lawyers or real estate associations, and they are usually as favorable as possible to the landlord. We will discuss some of the most common provisions below.
If the lease offered to you by the prospective landlord is not satisfactory, it is legal and simple to change it if both parties can agree on the changes. All you do is cross out unwanted portions, write in desired changes, and have all parties who are going to sign the document initial the changes. Make sure that you sign the lease at the same time as the landlord, and that you get a copy then and there. This assures both sides that no changes can be made after only one party has signed.
FORM
You’ll find downloadable copies of the California-specific fixed-term lease and rental agreement forms on the companion page for this book on the Nolo website at www.nolo.com (see Appendix B for the link to the companion page). If your landlord doesn’t have a written rental agreement, or proposes using a substandard one, use one of our forms instead. They are fair to both landlord and tenant. The only clause that is different in the month-to-month rental agreement is the term of the tenancy (Clause 4). The California Landlord’s Law Book: Rights & Responsibilities, by Nils Rosenquest (Nolo), includes these forms, with complete instructions.
| Language Note on California Leases and Rental Agreements |
|---|
| If a written lease or month-to-month rental agreement is negotiated primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, the landlord must give the tenant a written translation of the lease or rental agreement before it is signed. The only exception is if the tenant provides his or her own interpreter, who can fluently read and write English and the non-English language, and who is not a minor. (CC § 1632.) |
Which Is Better, a Lease or a Month-to-Month Rental Agreement?
If you have a lease for a substantial term, like a year or more, you are assured that the landlord cannot end your tenancy or raise the rent so long as you pay your rent on time and meet your other obligations under the lease and the law. This kind of security is extremely valuable where housing is hard to find and rents are rising.
If your unit is covered by the state or a local rent control and eviction control ordinance, your need for the protection that a lease provides is lessened.
Nevertheless, such laws do allow some rent increases, and they usually allow the landlord to evict in order to move him- or herself or a relative into the place. A lease will normally protect you against these dangers.
Of course, if you expect to be moving in a very short time, you may prefer a month-to-month rental agreement, so that you can leave simply by giving 30 days’ notice. But don’t be too sure that a month- to-month tenancy is what you want. If you’re in a tight rental market, it is usually not difficult to “break” a lease if you have to. We discuss this possibility in Chapter 12. Basically, the rule is that if you have a lease and move out before the term is up, the landlord can sue you for the rent until the lease runs out, but must make a reasonable effort to find another tenant. Once a new tenant moves in, your responsibility for the rent ends.
If you prefer a lease, but are worried about some specific event that might force you to leave the area, consider simply providing for that event in the lease. If your boss might transfer you to Phoenix, put a provision in your lease saying something like this: “Tenant can terminate this lease upon 30 days’ written notice, provided that, with such notice, Tenant also gives Landlord written proof from Tenant’s employer, saying that Tenant is being transferred to a specified location that is more than one hundred miles from Tenant’s current workplace.”
As a general rule, a landlord and tenant are free to agree to just about anything, although market conditions and common practices often affect what the parties agree to. However, landlords and tenants are required to comply with both state and local laws. (For instance, rent control laws limit rent increases and grounds for eviction.) Similarly, state laws place a number of requirements on the landlord (for instance maintaining habitable premises, returning security deposits, etc.). If a provision of a rental agreement conflicts with either state or local law, then it is invalid. Landlords often put provisions in a rental agreement that are not valid, even if you sign the agreement.
An “illegal unit” is one that was constructed without the proper permits, or it violates planning codes. Even when zoning rules permit a second unit, that unit must be constructed using proper permit, and if it was not, it is an illegal unit—one that should never have existed in the first place.
Illegal units are often referred to as “in-law units” or “granny units.” However, not all in-law units or granny units are illegal—landowners can properly build and obtain permits for units that they call by those names. And even an illegal unit can become legal after the fact: State law authorizes local government to adopt ordinances that legalize these units (often called “accessory dwelling units” or “ADUs”). A series of new state and local laws have made it easier for property owners to legalize some ADUs and create new ones, even though doing so might otherwise violate zoning restrictions.
As an example of post-construction permitting, in December 2017 the city of Santa Rosa responded to the loss of housing caused by the October 2017 fires by passing an ordinance that, among other things, offered amnesty to illegal units constructed without permits (though instances of code noncompliance could still result in penalties). (Santa Rosa City Code §§ 20-22.030 and following.)
Illegal units are often found in basements of homes and apartment buildings, garages, converted commercial spaces, and rear yard sheds and work- spaces. Some cities have tens of thousands of these units, and they constitute a large part of their housing supply.
Learning Whether Your Unit is Illegal
To find out whether your unit is illegal, you will need to look at records found at your planning or building departments. Much of this information is online:
Should You Rent an Illegal Unit?
While they may not have the proper permits, many illegal units are perfectly adequate living spaces. If you think the unit might be illegal, pay extra close attention to the condition of the unit. For instance, test the hot and cold water on all plumbing fixtures, make sure there are enough electrical outlets to meet your needs, and test the heating system.
There are, however, some risks involved in renting an illegal unit. For example, a nosy neighbor could call the building inspector and the building inspector might determine that the unit is illegal. The inspector might then require the landlord to legalize or to demolish the unit. The landlord might have to evict you.
So, as an extra precaution, you might want to contact the previous tenant and ask about the condition of the unit and whether the neighbors seemed to accept the unit’s being there.
Also, as unfair as it might sound, a landlord who wants to get rid of you could use the unit’s illegality as a reason for eviction. Remember, it is unlawful for the landlord to rent the unit to you in the first place: Because the thing shouldn’t even be there, it cannot lawfully be rented. In an eviction proceeding the landlord could argue that he or she has a right to evict you because the unit is illegal (this might not work in a city with rent control or just cause for eviction). (North 7th Street Associates v. Constante, 7 Cal.App. 5th, Supp. 1 (2016).)
On the other hand, the landlord too could face problems if the illegal nature of the unit comes to light in court. Tenants in an eviction proceeding could argue that they should not be required to pay rent. Tenants can also sue the landlord for recovery of all rents that were illegally collected for the unit. Tenants who lived in illegal units have also success- fully sued their landlords for fraud, misrepresentation, and wrongful eviction.
One final word of caution: If the illegal unit you’re renting has substantial code noncompliance, those problems could translate to uncomfortable or even dangerous living conditions for you. If you call the building inspectors, it is quite possible that they will cite the unit as “illegal” and require the landlord to “legalize” it. Legalization could require the landlord to demolish the unit, remove it from housing use, or rehabilitate it in a way that would require you to move. Also, if you complain and the landlord won’t fix things, you’ll be tempted to use one of the tenant remedies (rent withholding or repair-and-deduct) that are designed to force landlords to comply with legal standards. But think ahead: If you avail yourself of one of these remedies (each of which involves your paying less rent than the monthly sum), and the landlord terminates the lease for nonpayment of rent and files an eviction lawsuit against you, you might find yourself out of a place to live when the illegal nature of the rental comes to the court’s attention. In short, choosing to live in an illegal rental that has serious deficiencies can result in an unpleasant choice between putting up with substandard conditions and risking losing your home.
Multiple Tenancies in One Unit
It is becoming more and more common for landlords to rent separately to multiple, unrelated tenants living in the same unit, with a separate rental agreement (oral or written) for each tenant. These are often called “rooming house” or “boarding house” arrangements and occur in single-family homes, apartments, or flats. Tenants have their own rooms and access to common areas such as the kitchen, hallway, living room, and so on. Tenants pay their own rent directly to the landlord. When one tenant moves out the landlord replaces that tenant with someone whom the landlord chooses.
Under this arrangement, if another tenant does not pay his or her rent, that lapse has no direct impact on you—that problem is between that tenant and the landlord. By comparison, if you and the nonpaying tenant had signed the same rental agreement, you would be equally responsible for any rental shortfall. (See Chapter 2, “Sharing a Home.”)
Living in a rooming house situation has its dis- advantages. As with any situation where tenants share a unit, everybody has to get along. However, in a rooming house arrangement, you have much less power in dealing with a tenant you don’t get along with and whom you don’t share a rental agreement with. Instead, you must rely on the landlord to take some action. More importantly, if one of the tenants leaves, the landlord fills the vacancy and may not care much about how compatible you and that new tenant might be.
Finally, a rooming house arrangement could be illegal because, technically, each tenancy could be considered a separate unit. For instance, a property built as a single-family home is supposed to have only one unit (unless there is a legalized “granny unit”). With three or four separate tenancies, and three or four separate units, the setup could be considered a violation of building and zoning laws. (See “Illegal Units,” above.)
Your lease or rental agreement might be as short as one page or longer than ten. It could be typed or handwritten, easy to understand, or full of legalese. Most landlords use preprinted forms they buy in stationery stores, order from a landlords’ association, or find in a software program.
Most leases and rental agreements are prepared by real estate associations and have standard pro- visions. You’ll often see them as numbered para- graphs. Unfortunately, the provisions are often dressed up in fancy legal language and complicated sentences. This section describes the plain meanings for the most common terms you’ll find in a lease.
Before getting started on the list below, under- stand that landlords don’t have complete freedom to write clauses any way they wish. Some issues (such as the maximum security deposit a landlord can charge) are regulated by federal, state, or local law, though this doesn’t stop landlords from deviating from the rule, through ignorance or intentionally. Other issues (such as the parking policy) are up for grabs.
Finally, be willing to refuse to sign an agreement that contains terms that you don’t believe you can comply with.
In most cases, your written agreement will take precedence over any oral promises that your landlord made before signing the agreement. It is therefore important that any oral promises be included in the rental agreement. For instance, if the landlord said that the rent included a parking space, make sure the parking space is included in the description of the premises (discussed below).
Many agreements have blank lines at the end for “Additional Provisions.” Make sure any promises not in the agreement are included here.
State law (CC §§ 1962 and 1962.5) provides that the rental document must state the name, phone number, and address of both the manager and the owner (or person authorized by the owner to receive notices, demands, and papers announcing lawsuits against the owner). The document must also state when, where, and to whom rent is to be paid; and the form of payment, such as check, money order, or cash. Even if every other aspect of the lease or rental agreement is reflected in an oral agreement, the landlord must write down the above information and give it to the tenant.
Instead of putting this information in each rental agreement, the owner may choose to post notices containing the same information in the building. A notice must be posted in at least two easy-to-see places (including all elevators).
The owner must keep this information current. An owner who fails to follow this law may not evict for nonpayment of any rent that comes due during any period of noncompliance (see Chapter 14 for details). Also, the person who rented the dwelling for the owner automatically becomes his or her agent for receiving notices, demands, and notification of lawsuits (such as a summons).
The tenant might be referred to as the “lessee” and the landlord as the “lessor.” They might also be called the “parties” to the agreement. If a property manager or company is authorized to receive notices and legal papers on the landlord’s behalf, that person’s or company’s name and address should be in the agreement. If you can, get an email address as well.
Landlords typically want all adults who will live on the premises, including both members of a couple, to sign the lease or rental agreement.
Doing this makes everyone who signs responsible for complying with the terms of the lease, including payment of rent. To remind tenants of this rule, many leases and rental agreements state that all tenants are “jointly and severally” liable for paying rent, reimbursing the landlord for property damage, and abiding by terms of the agreement. This language means that the misdeeds of one tenant (such as keeping a pet in violation of a no-pets policy) will allow the landlord to evict all of you.
Chapter 2 provides details on the legal responsibilities of tenants and cotenants and related issues such as adding a new roommate. “Families With Children and Overcrowding” in Chapter 4, dis- cusses occupancy limits that may restrict who lives in the rental unit.
The property address is often called “the premises.” Your lease or rental agreement should also include details on any furnishings, parking space, storage areas, or other extras that you have agreed to.
The term is the length of the rental. The document should include the beginning date and whether it’s a month-to-month tenancy or a lease. If it’s a lease, the ending (termination) date should also be specified. Leases often have a term of one year. Sometimes a lease will say that after the year, the tenancy becomes month to month. Rent control ordinances with eviction protection also allow a tenant to remain in the premises after the term has expired. The important differences between leases and rental agreements are discussed above. Chapter 14 explains how tenancies end.
Leases and rental agreements should specify the amount of rent due each month, and must state when and where it’s due, acceptable forms of payment (such as cash, check, electronic funds transfer) and late fees. Chapter 3 covers rent rules in detail.
Leases and rental agreements must state the day of the month that rent is due, usually the first day of the month. It’s important to pay rent on time because “habitual late payment” of rent can be a reason for eviction, even in cities with eviction protection. Many agreements will say “Rent is due on or before the first day of each month and, if not paid by the fifth day of the month, the landlord may impose a late charge of $[X.XX.]” This five- day period is usually referred to as a “grace period,” which is not required by law. When landlords extend a grace period, many people mistakenly conclude that rent is due on the fifth of the month, not the first. They accordingly pay on or before the fifth of the month. Although they might have avoided the late fee, they are technically late with the rent and face the risk of eviction for “habitual late payment.”
Expect to see details on the dollar amount of a security deposit, last month’s rent, or both. Chapter 13 explains state laws that govern the size, use, and return of security deposits and why it’s important to know your landlord’s cleaning and maintenance requirements.
The landlord should state who pays for what utilities. Normally, landlords of multiple-unit properties pay for garbage and for water. Landlords of single- unit properties, such as a rental house, often pay for water if there is a yard. Tenants usually pay for other services, such as phone, gas, and electricity. If tenants will share gas or electric meters (where, for example, a tenant’s meter also services a common area, or where one meter measures more than one rental’s use), the rental document must disclose this, and how charges will be allocated. (CC § 1940.9.)
Most leases and rental agreements include a clause in which you agree that the premises are habitable (in livable condition) and you promise to alert the landlord to any defective or dangerous condition. Chapters 6 and 7 cover tenants’ important rights and responsibilities regarding repair and maintenance. If it’s already obvious that the premises are not habitable, beware. Although signing a lease with such a clause will not prevent you from legitimately asking for repairs, this is no way to begin your tenancy. (See the sidebar below, “Inspect Before You Sign.”)
A carefully written lease or rental agreement will include a statement that makes you responsible for keeping the rental premises clean and in good condition and obligates you to reimburse the landlord for the cost of repairing damage caused by your abuse or neglect. Many leases and rental agreements also tell you what you can’t do in the way of repairs—such as painting walls or adding built-in bookshelves—without the landlord’s written permission. Regardless of what the rental agreement might say, the landlord is legally required to maintain the unit in habitable condition. Chapters 5 and 6 cover the rights and responsibilities of landlords and tenants regarding repairs and maintenance, and your options if your landlord fails to provide habitable housing.
Your lease or rental agreement may require you to carry renters’ insurance to cover damage and other losses to the rental. (See Chapter 16 for details.)
California law specifies when landlords may legally enter rented premises—for example, to deal with an emergency or to make repairs— and the amount of notice required. (CC § 1954.) Chapter 5 gives the specifics concerning the landlord’s right to enter rental property and tenant privacy rights. So no matter what this provision says, the landlord can legally enter only for those reasons allowed under Civil Code Section 1954. There is probably no need to negotiate over this provision, because the landlord is limited by state law, no matter what the rental agreement states.
Some leases and rental agreements require you to notify the landlord in advance if you will be away from the premises for a certain number of consecutive days (often seven or more). Such clauses may give the landlord the right to enter the rental unit during your absence to maintain the property as necessary and to inspect for damage and needed repairs. You’ll most often see this type of clause if you live in a cold-weather place where, in case of extremely cold temperatures, landlords want to drain the pipes to guard against breakage.
Most form leases and rental agreements contain a clause forbidding you from using the premises or adjacent areas, such as the sidewalk in front of the building, in such a way as to violate any law or ordinance, including laws prohibiting the use, possession, or sale of illegal drugs. These clauses also prohibit you from intentionally damaging the property or creating a nuisance by annoying or disturbing other tenants or nearby residents—for example, by continuously making loud noise. Leases and rental agreements may prohibit smoking, in individual units as well as in common areas. Landlords often impose “house rules” that govern noise, proper trash removal, and so on.
Rental agreements and leases often include language that limits who may stay there and your use of the rental property—for example, no plants on wood floors or bikes in the hallway—these restrictions may also be in a separate set of “house rules.” Basically, landlords can set any kind of restriction they want, as long as they are not discriminatory or retaliatory or otherwise violate state law. For instance, they cannot prohibit home day care
operations (see “Family Day Care Homes,” below). Landlords are allowed to restrict or even prohibit smoking in part of or even all of the premises. (CC § 1947.5.) Other common restrictions involving pets, home businesses (other than day care), sublets, and guests are discussed below.
Always inspect the rental unit thoroughly before you sign a lease or rental agreement. Take your time and look carefully before signing off on a clause that states that the rental is in fine shape. Check to make sure that the electrical outlets and plumbing fixtures are working properly. Look for damage, signs of leaks, dirt, mildew, pest or rodent problems, and obvious wear and tear. A sample Checklist form is at the end of this chapter. Write down (be as specific as possible) both serious problems, such as a broken heater or leaking roof, and minor flaws such as a stained kitchen counter, dirty drapes, or faded paint. Back up your written statement with photographs. (See “How to Check a Place Over,” below, for specific advice.)
As much as possible, try to get your landlord to fix problems before you move in. Write down any agreement in a letter of understanding as described in “Get All Promises in Writing,” below.
Keeping tabs on the condition of the rental at move-in is an excellent way to protect yourself when it comes time to move out and get your security deposit returned. Without good proof of the condition of the premises at the start of the tenancy, your landlord may keep all or part of your deposit, claiming you left the place filthy or damaged it—for example, stained the rug, cracked the bathroom mirror, or left behind a broken garbage disposal. Your initial inspection (and photos) will establish that the problems existed at the start of the tenancy and are not your fault. Chapter 13 discusses how to avoid disputes over security deposits at move-out time.
The San Francisco Society for the Prevention of Cruelty to Animals (SPCA) offers pet-owning tenants helpful materials on how to negotiate with a landlord. The SPCA also offers landlords:
For more information, contact the San Francisco SPCA at 201 Alabama, San Francisco, CA 94103, 415-554-3000, or check their website at www.sfspca.org.
No Pets
Your landlord has the right to prohibit all pets, or to restrict the types allowed—for example, forbidding dogs or cats, but allowing birds. However, a landlord may not prohibit “service” or “comfort” animals used by people with a physical or mental disability, as provided by the fair housing laws. You’ll need to follow specific procedures if you wish to keep a service or comfort animal. (For more information, see Chapter 4, “Discrimination.”) Many landlords spell out pet rules—for example, that tenants will keep the yard free of all animal waste or that dogs will always be on leash.
Landlords may not charge a nonrefundable pet fee. (See the discussions of deposits in Chapter 13.)
Landlords may prohibit you from running a business from your home, by including a clause specifying that the premises are “for residential purposes only.” These provisions are intended to protect the landlord for additional legal liability if some is injured on the premises, or if the use violates local zoning or building codes. The growing popularity of working from home raised the level of complexity of this issue, and you won’t find an easy answer as to whether a particular home business use might be legal. Here are some factors to consider:
If you’re simply working at a computer and using your phone for business, your business activity probably won’t take you out of the “for residential use only” realm. On the other hand, having inventory on hand, an advertising sign in your window, a business license at the premises, and customers coming in and out all day long probably qualifies as nonresidential use.
Special rules apply to home-based day care. If you want to run a day care operation in your rented home, your landlord cannot flatly prohibit it. (H&S § 1597.40.) You must be licensed, and part of that process will involve an on-site inspection, to determine whether the physical space comports with minimum requirements under state law. (See “Family Day Care Homes,” below.)
No Assignments or Sublets Without Landlord Permission
Most careful landlords will not let you turn your rental over to another tenant (called an “assignment”), let someone live there for a limited time while you’re away (called a “sublet”), or let you rent an extra bedroom to another occupant, with you as the “landlord” (also called a sublet), without their written consent. In this instance, a landlord can- not unreasonably withhold consent to sublet. (See Chapter 12 for more on the subject.)
Limits on Guest Stays
It’s common for landlords to limit overnight guests, such as allowing a guest for no more than ten days in any six-month period, with written approval required for longer stays. Landlords do this to keep long-term guests from gaining the status of full-fledged tenants who have not been screened or approved and who have not signed the lease or rental agreement.
Prohibitions Against Short-Term Rentals (Airbnb)
Short-term rental websites and services such as Airbnb have become very popular in California, particularly in tourist destination cities such as San Francisco and Santa Monica. Landlords universally hate the practice—from their point of view, the tenant has simply turned the rental into a hotel, making money off the landlord’s property and introducing added wear and tear, annoyance from neighbors, and the risk that unscreened occupants will cause trouble. Arguably, a general “no sub- letting or assigning without permission” clause would cover and prohibit the situation, but to be sure, landlords have begun inserting clauses in their rental agreements and leases that specifically address the practice and forbid it, warning that a breach can lead to eviction. In some cities, such as San Francisco, it is unlawful for a tenant to rent using Airbnb (or similar platforms) without the written permission of the landlord.
Such a clause is probably legal and enforceable, even in cities whose own ordinances attempt to govern the practice (no such ordinance requires landlords to allow short-term renting). If you see such a clause in your lease, or if the law requires your landlord’s consent, think twice before listing your rental. Landlords can easily find out if you are using the premises for such a business, and may use this as a reason to evict.
Subletting to People at Risk of Becoming Homeless
Under CC § 1942.8, a tenant may, with the consent of the landlord, allow a person to stay temporarily if that person is at risk of homelessness. If the landlord consents, the owner may increase the rent temporarily while the person is residing at the property. Under this law, the agreement to temporarily allow the person to occupy the unit must be in writing. The temporary occupant must comply with the rental agreement and all rules and regulations, and the existing tenant(s) on the property are legally responsible for the temporary occupant’s actions. The rules regarding eviction of the temporary occupant are different from those of tenants and are spelled out in detail in Civil Code Sections 1942.8(g) and (h).
The temporary sublet law was introduced in response to the high number of people who lost their rentals because of their inability to pay rent (or because they could not find housing). Though the law became effective in January 2020, before the advent of the COVID-19 pandemic, its measures became very relevant in situations where people needed to move in with others in order to allow a roommate to isolate, and for those who lost their rentals when their lost or diminished income could not cover the rent (in spite of pandemic- inspired evictions bans).
In addition to disclosures described here (under “Utilities” and “Megan’s Law Database”), California requires landlords to make the following disclosures, either in the rental document or elsewhere:
Many lease agreements have provisions that prohibit putting signs in windows or the outside of your unit. These provisions are generally legal, but Civil Code Section 1940.4 creates an exception that allows tenants to display political signs regarding initiatives, elections to public office, and matters that will be voted on by a legislative body, a public commission, board, or another elected public body. The signs must be less than six square feet in size. Civil Code Section 1940.4 does not apply if it violates the rules of a condominium association, cooperative housing development, or planned unit development. The tenant posting the sign must comply with any local ordinance that has time limits on when the signs can be posted. In the absence of any legislated limits, landlords may require that the signs be removed within a “reasonable” time period after being posted. A “reasonable” time period is presumed to begin at least 90 days before the election and end 15 days after it. Remember, Section 1940.4 applies only to political signs, and a land- lord is otherwise allowed to restrict posting signs around the property.
| Family Day Care Homes |
|---|
| Under state law (H&S § 1597.40), a landlord may not forbid a tenant’s use of rental premises as a licensed family day care home. If you obtain a state license to run a family day care home, you may do so legally—regardless of whether your lease or rental agreement prohibits the operation of a business on the premises or limits the number of occupants. Local zoning and occupancy limits also don’t apply to a state-licensed family day care home. If you want to run a family day care home, you must notify your landlord in writing of your intent, after having first obtained a state license, 30 days in advance of starting the child care operation. |
Every written lease or rental agreement must include a specific, state-written paragraph that tells tenants about the statewide database containing the names of registered sexual offenders. Members of the public may view the state’s Department of Justice website to see whether a certain individual is on the list (www.meganslaw.ca.gov).
If you and the landlord get involved in a lawsuit (such as an eviction lawsuit) arising out of the lease or rental agreement, each side will usually pay its own attorneys’ fees. This rule is subject to two exceptions: Some California statutes provide for attorneys’ fees to the prevailing party in a lawsuit for certain violations of the law (that is, the loser pays the winner’s fees and costs). For example, statutes covering lawsuits for discrimination, retaliatory eviction, or rent control violations specify that the prevailing (winning) party can recover fees and/or costs.
The second exception arises when a term in a lease agreement states that the winning party in any litigation related to the lease can recover fees and costs from the loser. In that case, if you win, then the landlord pays your fees; and if the landlord wins, you pay the landlord’s fees and costs.
You might encounter a lease that states that a losing tenant will pay a winning landlord’s fees and costs (but not the other way around). Fortunately for tenants, California law will not countenance this one-sided provision. The judge will interpret this provision to require payment of attorneys’ fees to the prevailing (winning) party, no matter who that is. (CC § 1717(a).) Therefore, if you win, you get your fees paid by the landlord.
You’ll often see a general clause stating that any violation of the lease or rental agreement by you, or by your guests, is grounds for terminating the tenancy according to the procedures established by state or local laws. Chapters 14 and 15 cover the legal rules regarding termination and evictions.
Owner Move-In Clause
If the rental is subject to The Tenant Protection Act of 2019 (the TPA, a law that established rent control and just cause eviction statewide, with a few exceptions), the landlord may place a clause in the lease that allows for termination with 60 days’ notice if the landlord (or a specified relative) intends to move into the rental. The relatives include the landlord’s spouse, domestic partner, children, grandchildren, parents, or grandparents. Be sure you understand the import of this clause: The lease will terminate before the date it normally would if the landlord (or relative) “decides to occupy” the rental as a residence. (See Chapters 3 and 14 for more information on the TPA.) (CC § 1946.2(b)(2)(A)(ii).)
The legislature has determined that certain provisions found in leases and rental agreements are “unconscionable” or unacceptable. Civil Code Section 1953 invalidates them (this means that a judge will not enforce them). In practice, a land- lord’s attempt to get you to “waive” (give up) or modify your rights will be fruitless. These rights include:
Because lease clauses waiving these rights are not enforceable, you might be better off focusing your efforts in getting your landlord to modify other provisions of the agreement. But understand that if you remain mum, you risk lulling the landlord into thinking that the clauses are legitimate, and the landlord might decide to invoke them later. True, you should eventually prevail (perhaps in court or, if you’re lucky, when the landlord’s lawyer sets him or her straight), but it will be a hassle, to say the least. Are you better off pointing out the problem at the outset? That too has its risks, the worst being that the landlord will consider you a troublemaker and come up with a reason not to rent to you. It’s a difficult call.
Below are typical examples of unenforceable provisions.
This provision says that if the landlord is negligent in maintaining the place and you, your family, guests, or business invitees (such as delivery persons) are injured; or if your property is damaged (for example, if someone falls down broken stairs), the landlord is not responsible for paying for your losses. This provision is called an “exculpatory” clause. Under state law, such a provision is invalid. (CC § 1953.) Chapter 9 discusses landlord liability for tenant injuries.
This provision requires you, the tenant, to repair or maintain the premises. Unless your agreement is based on a legitimate reduction in rent, this type of provision is usually illegal. (CC § 1942.1.) In any event, this clause does not relieve the landlord of the legal obligation to see that the place complies with the housing codes and the duty to maintain a fit and habitable rental. (See Chapter 6 for more information.)
California tenants have the right, in certain circumstances, to make necessary repairs and deduct the cost from the rent (this remedy is known as “repair and deduct,” and is explained in detail in Chapter 6). A lease provision that purports to waive these rights will not be enforced by a judge.
Cities that have rent control ordinances forbid lease or rental agreement provisions by which a tenant gives up or waives any rights granted by the rent control ordinance, such as rent ceilings or just cause eviction rules. A landlord who attempts to circumvent a rent control rule may be fined or even face criminal prosecution. (See Appendix A and Chapter 3.)
This provision says the landlord can sue to evict you or can raise the rent or change the terms of the lease without giving notice (such as a three-day notice to pay your rent or vacate) required by law. It is not valid. (CC § 1953.)
Many forms have a provision that gives the land- lord the right to come into your place to inspect it, or for other purposes. Under state law, the landlord’s right to enter the dwelling is limited to certain reasons, and any attempt to add to these reasons in the lease or rental agreement is void. (CC §§ 1953 and 1954.) We discuss your rights to privacy in detail in Chapter 5.
This provision permits the landlord to come in and throw you out if you don’t pay the rent, without giving you legal notice or going to court. It is not valid. (CC § 1953(a)(4).)
One variation on this provision says that you waive your right to a trial by jury in any eviction lawsuit brought by the landlord. It is not valid. (CC § 1953.) Similarly, a lease clause in which the tenant agrees that any lawsuit concerning the lease or its implementation will be tried before a judge without a jury is void. (Grafton Partners LP v. Superior Court (PricewaterhouseCoopers LLP), 36 Cal.4th 944 (2005).)
Keep in mind that you and the landlord may still decide, once litigation has begun, that you will submit the case to a judge and not a jury. But an advance waiver of the right to a jury trial is not a legal option in California. Rental agreement provisions requiring the parties to arbitrate a dispute with a “neutral” third party are void under CC § 1953(a)(4). ( Jaramillo v. JH Real Estate Partners, Inc., 111 Cal.App.4th 394 (2003).)
This provision prevents you from appealing a court decision in any eviction lawsuit. It is not valid. (CC § 1953.)
Provision Setting Notice Period
This provision sets the amount of time the landlord must give you before a notice of termination or rent raise or change in terms takes effect. Under CC § 1946.1, time periods that differ from state rules are not legally valid. If you are a month-to- month tenant, the law requires that the landlord give you at least 30 days’ notice (60 days for a termination notice in the case of a tenant who has rented for a year or more). (See “Rent Increase Notices” in Chapter 3 for exceptions.)
Cash Rent
Your lease or rental agreement may not demand that you pay the rent solely in cash or by electronic funds transfer. (CC § 1947.3.) Landlords may demand cash rent only after you’ve given them a check that bounces, or a money order or cashier’s check whose issuer has been told to stop payment. Even then, the demand for cash rent may last only three months. If you see a provision such as this, you might want to raise the issue. If the landlord gives you the option to pay by check, cash, or electronic funds transfer, you have your choice.
Provisions That Might Be Invalid Depending on the Circumstances
The landlord’s lease might contain provisions that are invalid due to the makeup of the resident mix or the manner in which monetary consequences are calculated.
Late Charges
This provision requires the tenant to pay a “late charge” if the rent is paid late. The charge may be set as a percentage of the rent (such as 4%), a flat charge (such as $10), or a flat charge per day (such as $5 each day the rent is late). (See “Late Fees” in Chapter 3.) This provision is valid if the amount is a reasonable estimate of the amount the lateness of your payment will cost the landlord— that is, the administrative cost of processing the late payment and the loss of interest on your rent. However, if the charge is so high as to penalize you for being late, the charge is probably a “penalty” provision, which is invalid. If the late charge seems suspiciously high to you (for example, a $100 charge on an $800 rent payment late by a few days), ask the landlord to justify it or lower it. Two courts have found a late charge of $50 to be an unlawful pen- alty. (Orozco v. Casimiro 212 Cal.App.4th Supp. 7 (2004), and Del Monte Properties and Investments, Inc. v. Dolan, 22 Cal.App.5th Supp. 20 (2018).)
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