Your rental agreement can be verbal, written, implied, or a combination of them. You “have a contract” if you pay the rent for the place without anything else. You “have a contract” with the new owner, if the old owner sold it to this new owner. You “have a contract” for the unit after the original lease term expires, in most cases, just by continuing to pay the rent which the landlord accepts. Depending on how the lease is worded, you may have a new lease for the same term [like a new year] or the more common month-to-month tenancy, which happens automatically by law [Civil Code 1945], under the same terms and conditions except for the tenancy being month-to-month. You “have a contract” if you pay the rent by managing the property, do construction work in lieu of rent, are a live-in worker, perform in-home care for the owner [such as an elderly or disabled person who needs in-home 24/7 care], or simply caretake the property for the absentee owner.
The law also imposes certain terms into the lease, even though you don’t see them there. One such law concerns your security deposit. The law requires that it be returned to you within 21 days after you leave, minus only certain legal deductions. The law prohibits the landlord from making it non-refundable. Even if they call it a “rental fee” or “cleaning fee”, or “last month’s rent”, it’s still a security deposit under the law. [See Security Deposit, below]
Another law, called the “warranty of habitability” requires your landlord to provide the basics [heat, water, electricity, functioning doors and locks, etc.] as a condition of asking for rent. You have certain remedies provided by law, even if the rental agreement says you don’t. [See Repairs]
Every rental unit must have a “certificate of occupancy” [or its equivalent] issued by the city in order for the unit to be legal. That law is to assure that each rental unit complies with building and zoning laws. If the unit is not legal, and there are plenty of such illegal duplexes, converted garages, and assorted buildings, the landlord cannot demand or accept any rent for that structure.
In rent controlled cities like Los Angeles, the landlord is also required to register a residential rental unit and charge only a legal rent, before even asking for rent. [See Rent Control, below.] For mobilehome park tenants, the Mobilehome Residency Law is a collection of extra rights and procedures that protect you. [See Mobilehome Park Disputes]
There are special laws such as Health and Safety Code §1597.40, which protects licensed Day Care operations by a tenant against eviction and lease prohibitions against it. This is under a separate public policy encouraging Day Care so that parents may be employed and not stuck on Welfare roles.
The landlord cannot discriminate against children. There were once “adults only” buildings, but now only senior citizen complexes can exclude children. The landlord can restrict the number of people who live in an apartment, however.
The same prohibitions against discrimination for race, religion, sex, and nationality differences exist in rental laws as in other businesses. The Fair Housing Council specializes in those cases and have staff that investigate and even prosecute.
Just because a person leases out a unit or brings an eviction action does not mean that they have a right to do so. There are laws designed to make people get licenses and file certain papers with the government, and the punishment for failing to comply often includes the prohibition to sue for or collect on the resulting arrangement. Tenants are sometimes the beneficiaries of this arrangement.
The failure to register a rent-controlled unit prohibits the landlord from asking for rent or suing to evict the tenant.
Some landlords operate under a “fictitious business name” such as “California Apartments”, identified as such on the rental agreement and rent checks you pay. Who is that? People who use such names are required to file their “d.b.a.” statement with the County Clerk, and publish the notice, and renew it every 5 years. Failure to do so bars their lawsuit – they have no authority to sue until after complying with the filing requirements, under Business and Professions Code Section 17918. See the Find Your Landlord section of this site.
Business and Professions Code [starting Section 10131] requires that people who manage others’ real property [except resident managers] must be licensed real estate brokers, but there are an increasing number of people who aren’t brokers and manage anyway. Sometimes they use a “power of attorney” form, and other times a simply contract authorizing them to do so, but neither of those is enough under the law.
The punishment imposed by the law for those who manage without a license is that the agreements are unenforceable. Plainly put, if one of those persons is managing your property and signed your rental agreement, you owe no rent and they can’t enforce the agreement. They even lack authority to evict you. Eventually, the owners would have to step in and try to take back possession, but no money.
There are too many variables to discuss in this limited space, but the examples above suffice to advise you that your rights are not limited to the piece of paper you sign. Consult a lawyer for more details that apply to you.
When the landlord rents out their unit to you, they sell you the right to exclusive possession of your unit. The landlord chooses to have the money, rather than exclusive possession, the same as though they sold the property to someone else – they no longer have the right to possession. If the landlord comes into your rental unit, he is a trespasser, the same as any stranger, with one special exception.
Under Civil Code Section 1954, the landlord may enter your rental unit (1) in an emergency, like a fire or broken pipe, or (2) upon reasonable advance notice, and then only to inspect, repair, or show the apartment, during normal business hours. 24 hours is presumed to be reasonable notice, but a shorter time may be reasonable. You do not have to be home when they come, but they are are liable for anything stolen or broken during such entry.
The manager who snoops in your apartment because they have a key can be controlled by practical means, even though there is no legal authority to approve or prohibit the practice. Write a letter to the owner, carbon copy to the local police, about the manager’s burglary. Change the locks, or add chain lock to the door, so that the manager’s entry is restricted. You should plan on moving, if the owner does not restrict the manager’s entry, but at least your privacy will be protected.
The law now requires a landlord to provide dead bolt locks on the doors and adequate locks on the windows of a residential rental unit. Civil Code Section 1941.4. Failure to do so violates the “warranty of habitability”, permitting the tenant to move out, repair and deduct, or withhold rent as remedies.
There is occasionally a manager who wants to evict a tenant for refusing to have sex. The California sexual harassment laws now permit a tenant to sue the manager and landlord for sexual harassment, but the law still appears to authorize such an eviction.
This is an area of landlord-tenant law which most judges now understand to be different for residential tenants. A late fee is typically a flat amount or percentage of the rent that the landlord intends to charge if you don’t pay the rent by a given date. Late fees are built into many contracts to encourage timely payment, but the Legislature recently amended the law to prohibit late fees in residential rental agreements. The law does not punish the landlord for trying to steal it from you.
Late fees are legally described as “liquidated damages provisions”, meaning that an arbitrary amount is chosen as the penalty for breaching a particular promise in the contract – in this case, to pay the rent by the given date. Civil Code Section 1671 provides that a residential rental agreement cannot contain a liquidated damages provision unless it is impossible, or extremely difficult to calculate the exact damages suffered by the breach. If it does, the late fee clause is void and of no legal effect, just like a nonrefundable security deposit clause. Interest, in the range of 30 cents per day, is permissible, however, if the contract so provides.
Landlords will try to justify the late fee by describing the time it takes to make extra calculations, trips to the bank, phone calls, and other varying time spent due to a single late payment. Of course this is contrived, and the reality is that the management company gets the same amount of money irrespective of any late payment, and any additional work is negligible. The stronger argument is that Civil Code Section 3302 says that the damages for failure to pay an amount is the amount itself, plus interest at the legal rate [1/3650th of the amount per day – about 20 cents]. Therefore, the amount incurred from late payment is not difficult to ascertain; the law defines it.
That’s the legal argument. You might want to print it out, in case you have to convince the landlord or judge of your position, and you can use it for reference.
Tactically, you face decisions on when and how to confront the issue. You can sign a lease with the late fee provision, and you haven’t waived your rights by doing so, since the late fee provision is illegal and void. When faced with the demand, you can pay it under protest, or describe the money as an advance payment of rent, and avoid the immediate hassle. At a later date, if you are evicted for nonpayment of rent, your prior late fee overpayment has to be given credit, and the 3-day notice is thereby made invalid for demanding more rent than was due [ie, it demands a month, but you only owe a month minus that earlier late fee payment]. You win the case on a technicality, or at least get a great bargaining position for a settlement on terms favorable to you. If you’re strapped for cash now and can’t pay even the current rent, hope that you get the eviction notice that asks for the rent plus the late fee. The scenario is the same, except that you don’t have to apply past overpayments for credit; the notice is invalid on its face.
There is no official “grace period” for rent payments in the law. Rental agreements typically say that if the rent is not paid by the 5th, a late fee is due. Again, since the late fee is itself illegal, threatening to do an illegal act on a given date does not help the landlord’s case. Functionally, the law provides a type of grace period. If rent is due on the first, the landlord cannot give you a 3-day notice to pay rent or quit until the 2nd. The 2nd is day “zero” of the 3-day notice, so that the last day to pay and satisfy that 3-day notice comes out to be the 5th of the month. If that third day also falls on a legal holiday or weekend, your last day is extended until the next banking day, which can be as late as the 9th.
If your paycheck comes at a time which makes payment on the first difficult, you might suggest to the landlord that you increase your security deposit by a month’s rent, so that you’ll actually being paying a month in advance of the current one. That is, you would pay April some time in March, but think of it as March rent, even if you paid it March 15th. It would still be early. Interest lost on that money is nothing compared to the hassle you save and the tactical advantage you create for yourself by doing that, at a time when you may need it.
The time may come that you have to “break the lease”. You may have just been transferred in your job to another city, or been laid off, or have to go back east to take care of your parents. Things happen that are more important than your rental agreement, but you don’t want to leave loose ends, either.
A month-to-month tenancy can be terminated by either party giving 30 days’ written notice that the tenancy at X address is terminated 30 days from this notice. However, a tenant who has resided there for at least one year is entitled to a 60-day notice, unless the eviction is for the new buyer of a house or condo to move in [in which case, it’s back to 30 days] [ Civil Code 1946.1 ] A longer lease, like a year or so, is different. The general rule is that you are responsible for all of the rent for the remainder of the lease period, whether you live there or not. Some rental agreements look like leases because they say you don’t get your security deposit back if you don’t stay the full year, but on closer examination, they are just month-to-month agreements with illegal non-refundable security deposit provisions in them. Be sure of what you have.
If you have no legally valid reason for breaking the lease, the landlord is still obligated by law to minimize the impact of your breach by trying to re-lease the unit. The legal term is “mitigating damages.” For example, you leave in month 4 of a year lease. The landlord tries to re-rent it, and finds someone to pay the same rate starting month 6. You owe the rest of month 4 and all of month 5, but not thereafter. The landlord cannot collect double rents. In the alternative, the landlord finds someone who will rent your $1000 apartment for $900 starting the day after you leave. You would then owe the $100 difference for the remainder of your lease term. In contrast, if the landlord does not try to re-rent the unit, and you can show that, the landlord gets nothing from you, because of the failure to mitigate damages. In between is the gray area, where the landlord makes minimal efforts to re-rent, or rents at a higher rate than you paid. The judge would have to determine whether this was a mitigation of damages.
If you have no legally valid reason to terminate the lease, your best approach is to put the fact of your leaving in writing to the landlord, and keeping a copy, mentioning that your unit will be available for viewing by prospective tenants under Civil Code 1954 [reasonable advance (like 24 hrs) notice, business hours only]. You can also put your own ad in the Recycler or equivalent [freebie ads], and have the prospective tenants call you. Write down their names, work and home numbers, and then forward them on to the landlord as replacements. If the landlord claims they couldn’t find anyone, you have a list to contest that, and show their failure to mitigate damages.
A legally valid reason to break your lease is not that you’ve moved out, that your life has changed in some way, that your co-tenant has left, or that you’ve run out of money. A legally valid reason for the termination has to do with the unit, itself. If it burns down in a fire, or is yellow-tagged after earthquake damage, obviously the lease ends. However, you can find a legally valid reason for eviction based upon uninhabitable conditions.
Civil Code 1942 authorizes termination of the tenancy [of whatever kind] without notice, upon vacating the unit, where the reason for leaving is uninhabitable conditions. The conditions do not have to be so severe as would entitle you to withhold rent. Rather, they are within the same category [and statute] as repair and deduct remedies. That is, if the condition negatively affects habitability, you can either repair and deduct or just leave.
Most rental units have something wrong with them: missing front door deadbolt locks, missing screens, inadequate trash receptacles, defective electrical outlets, slow drains, etc.. If you have a reason like this, and obviously the worse they are the better the reason is, you can legally terminate the lease, even if coincidentally you got transferred to Chicago. You do need to have given reasonable advance notice, but that can have been oral. If you had mentioned the defect to the manager last month and it still wasn’t fixed, you would want to say that in your letter of termination, so that the record of your reasonable advance notice would be read by the judge. Uninhabitable conditions which the landlord fails to fix in a reasonable time are legally valid reasons to terminate your lease. And yes, pictures and witness would be nice, just in case you need to prove it later.
Sometimes, the landlord will agree to terminate the lease, but for a price. Watch out for the terms. A decent release clause should say that if you pay one month’s rent, they release you entirely from the rest of the lease. Sometimes, however, the management company tells you that you have to pay them some money to be “released”, but will still owe them money for the time until they get the place re-rented; you would be paying the “release” money for nothing, since the rest is all you would owe anyway. Make sure you aren’t giving up your deposit, too. Sometimes they say you’re “released” from the lease, or “don’t worry about it”, and then they hit you with a bill or judgment for the remainder of the lease. If they are sincere about it, they’ll put it in writing.
As an additional precaution, you can sub-lease the unit to someone else. This can create problems, because the management might prohibit sub-leasing. However, since they have the obligation to mitigate damages, how do they justify evicting a paying sub-tenant? They get the empty unit, but can’t claim that they’ve minimized their losses as to your lease term rent. They shoot themselves in the foot. Sometimes, the subtenant ends up taking over the place, and signing a new lease.
