General Tenant Rights

    The following is based upon California law as of 2005, and may not apply in your State or circumstances. It is only designed to identify general rights and remedies you may have to help you determine whether you have been treated improperly and whether to take action. Rely only upon the advice of an attorney who specializes in landlord-tenant law, after a consultation explaining your circumstances.

    This is only a sketch of your rights. As with all law, so many things are interrelated, it is impossible to identify all of the exceptions and give a completely accurate explanation without knowing the facts and circumstances in your case. It is by no means complete, and most exceptions to the general rules have been omitted in the interest of presenting an understandable discussion of landlord-tenant law.

    For more detailed information, consult an attorney.

Table of Contents
The Rental Agreement
  The Basics
  Additional Terms Supplied by Law
  Discrimination
   Landlord's Authority
Repairs
Privacy
Late Fees
Breaking the Lease

Miscellaneous Special Laws
      Landlord liability for criminal acts of others
      Shared Utilities
      Pesticides

      Fumigation
      Foreclosure
      Apartment Manager Minimum WagesI
      Hide and Seek Landlords  

 

The Rental Agreement

Additional Terms Supplied by Law

    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, below]

    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, below]

    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.  

Discrimination

    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.

Landlord's Authority

    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.

Privacy

    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.

Late Fees and Grace Periods

    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. 

Breaking the Lease

    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. 

Miscellaneous Special Laws

The Hide-and-Seek Landlord

    Discussed above was the requirement that the landlord identify who is the authorized manager, who is the owner, where and how rent is to be paid, and the requirement of giving this information in the lease or posting it.   If the rent can't be personally delivered [like there is no address, or you only have a PO Box or deposit box], the tenant can mail the rent, and it is "paid" on the date it goes into the mailbox, even if the landlord doesn't get it until later. Mailed rent under those circumstances requires "proof of mailing", which can be done by certified or registered mail, but also by declaration of proof of service, a witness, or a simultaneously mailed copy to yourself that shows the postmark [which can be the next mail day]. You may want to call the landlord to remind him that you mailed the rent to him under new Civil Code 1962

    If the landlord refuses to identify his or his full agent's name, address and phone, when you sue the landlord, you can just mail the summons and complaint [must be registered or certified mail] to the place where you send the rent, and you don't have to hunt him down, at all. This is important for small claims cases by you, suing to get your security deposit back.  You don't even need a sheriff to serve the papers under those circumstances.  For small claims, be sure to mail the Plaintiff's Claim at least 10 days before the trial date. 

    Civil Code 1962 also requires any 3-day notice to pay or quit to identify the name, address, phone, and available hours of the person to be paid [or the banking information] , and the manner of payment. Most landlords don't know about this new law, and use their old forms which do not contain this information. What happens if they don't? will be the next question courts decide: either the notice is no good because it lacks that information, or the missing information is only significant if the tenant tried to pay the rent but didn't know where or how. 

Landlord liability for criminal acts of others

    Even if the landlord is not insured for it, the landlord can still be sued and held liable for crimes
committed in the apartment complex, such as thefts from the cars, where the landlord has been
negligent, such as failing to fix the garage security gate. They often claim they are not liable, but that is a bluff.  Also, if the conduct in question was that of the resident manager or other employee hired by the landlord, the landlord is personally responsible to you as though he had done the act. Crime is a habitability issue, under the contract, not just negligence. 

    They may also appear to deny liability because their insurance "doesn't cover that". That's their problem: they can't avoid liability by avoiding insurance. If that worked, nobody would buy insurance.  Moreover, the fact that you did not have "renter's insurance" is no excuse for their neglect, nor does it reduce your recovery.  See a lawyer about your theft, for the details.

Shared Utilities

       If you live in a unit where you get the utility bill for service which is also supplied to another unit, a laundry room, or garage, Civil Code Section 1940.9 requires that that landlord tell you about that when you rent the place and make some agreement about the distribution of the service expenses [like you pay 50%]. If the landlord doesn't do that, you can sue [even in small claims court] for a reimbursement of the portion used outside your unit, whatever that is. [Civil Code Section 1940.9(b)(2)]

Pesticide and Toxic Mold Report

    If your landlord uses a regular pest control company, you must receive or there must be posted a notice identifying the pesticides used, their active ingredients, and a notice about possible health effects. [Civil Code Section 1940.8]
    Toxic Mold has gained attention. It can lead to serious lung infections, and often results from landlords' neglect of pipes leaking the walls, leaky roofs, and unsealed [a special coating] walls. New Health and Safety Code 26147 requires the landlord to tell current and prospective tenants about the mold, as well as do something about it as a habitability issue. The standards and treatment methods are not established yet [2004] although this law was enacted in 2001.  The important thing is that you write a letter to your landlord about the mold in your apartment and ask that it be removed. That way, he can't claim he didn't know about it, should you get sick from the mold.

 

Fumigation<

    Termite fumigation requires the tenting of the building for 2-3 days, and for the occupants to be out. Common though this situation is, there is NO LAW about how this should be handled.  The temporary exit costs the tenants lodging and restaurant meals, food replacement and substantial time to move clothes, medicine and essentials to the hotel/motel, re-route phone calls and mail, set up alternative transportation and child care, in addition to having an apartment that can't be used for those days. If tenants vacate on different days, the early birds are kept out longer.  The stay outside the apartment could easily cost more than the month's rent. If you paid your rent for that month AND have to pay for these extra costs, you could very likely pay double rent for a month of inconvenience. 

    Fumigation becomes an issue for one of two reasons: either the City Inspectors require it [which is rare] or the landlord is selling or refinancing the building, in which case, you might expect a rent increase in the near future [to pay the higher mortgage]. The lenders and buyers want to see a termite report, and have the place tented if termites are a problem. If the landlord plans to cash in on the building, your landlord will have the money to be able to pay for your temporary relocation, and could apply your security deposits as an interim cash flow aid until the loan or sale comes through. Generally, you get no such offers, but only a notice that you'll have to be out of the property for a few days.

    This is NOT the law, but merely a workable strategy: Get your neighbors together when you get this notice, and work out a plan. What will it cost you to be out for a few days in room and board [pick a moderately priced hotel in the vicinity], and what if it lasts longer than a couple of days? When would this have to be done? What arrangements will you each have to make to comply? What will the replacement food cost?  Come to an agreement and have the things itemized to present to the landlord. Get an agreement from the landlord in writing for each tenant that the landlord will advance $X to each of you in advance solely as compensation for the temporary move, a beginning date when you sign out and get your money, and a definite return date when you can come back in. You should also include that any extra expenses for additional days will be either paid by the landlord immediately as due or come out of future rents as a credit.  From the landlord's perspective, this is an expensive proposition, but he has to understand that he is the one who wants this, he has the money, and his alternative is to delay everything and start eviction proceedings, at even greater expense and disruption to him. 

    His worst situation is where all but one tenant agrees to leave, because the fumigation will not proceed if even one tenant remains, due to the dangers of the pesticides. Therefore, this is not a time for him to divide and conquer; he must work out a deal with everyone. From your perspective, it might be better to start looking around for a place to move, anyway. If the new landlord comes in, you probably will get a rent increase, and if the place is refinanced, the mortgage will probably be higher as the landlord "pulls out equity" to buy another apartment building, and you'll get a rent increase. Consequently, don't be intimidated by the landlord's threats of eviction. Rather, call in the building inspector to see what else is wrong with the building that might need to be fixed, and would hold up a sale and possible refinancing. By playing "tough guy" with you in this situation, the landlord only hurts himself. 

Foreclosure

    Just because you have been paying your rent doesn't mean that your landlord has been paying his
mortgage. Many people trying to get rich quick in real estate over the past decade have found
themselves scrambling to cover the mortgages, often "robbing Peter to pay Paul". As a result, you
may find yourself being evicted by the bank after the foreclosure sale, having done no wrong.

    Similarly, you may have been the owner of a home who, through job loss, family illness, or
otherwise, found yourself facing foreclosure and eviction from what was once your home. Finally,
you may have been the lawful owner who was hoodwinked by real estate con men who had you sign some papers and are now evicting you, when they had promised to help you refinance. In any of
these cases, all hope is not lost.

    After the "Trustee's Sale" which concludes the foreclosure, the new owner [which is sometimes the foreclosing bank] cannot legally take possession without then going through the eviction process. As with the other kinds of evictions, the process does take time, during which you can sort out your options. The former owner is entitled to a 3-day notice, and any tenant of the former owner is entitled to 30 days' notice, before the eviction lawsuit can be filed.  If you are such a tenant, but get only a 3-day notice, you have a tactical advantage when you start fighting the eviction. Also, there are remedies for any improprieties in real estate swindles, such as reversing the title in "equity purchases", and raising the fraud as an eviction defense. Your lawyer can explain the details of these approaches and help you decide how best to handle the problem.

    For those former owners of what became "over-encumbered" homes [i.e., you owe on it more than it's worth], you should be aware that the foreclosure does not end your financial plight. To the extent
that the unpaid portion of your mortgage was not satisfied by trustee's sale of your property, you
were released from a debt - and that is taxable income.

    As a result, many former homeowners are forced into bankruptcy to avoid the tax consequences of the foreclosure and truly get a fresh start. If you are contemplating filing bankruptcy, you would want to coordinate that with any other legal actions you may be involved with, including evictions, as well as the timing of the foreclosure sale, for maximum beneficial effect to you. Your attorney can explain how it is done, and help you decide whether or when to file bankruptcy.

Apartment Manager Minimum Wages

    Here is the surprise to most resident managers. The typical agreement for resident managers is to have a free or reduced rent apartment in exchange for unlimited hours of work managing the building.

    However, the California Industrial Welfare Commission [IWC - California's labor department] regulates the minimum wage law for apartment managers [part of the "Public Housekeeping Industry"], and requires that resident managers be paid at the prevailing minimum wage for all hours worked, meaning time spent on chores. The current law is presented in IWC Order 5-2001 The exemption for managers and others in an administrative capacity would rarely apply to apartment managers, and then only because they are paid at least double the minimum wage on a 40-hour per week basis. Minimum wage went to $8/hr effective 1/1/12. Do the math.

    If the manager works more than 40 hours per week, the standard time-and-a-half rule applies. Against that minimum wage obligation, the landlord can deduct up to 2/3 of the market rental value of the manager's apartment However, that deduction cannot be more than $381.20 for a single manager and $563.90 for a couple, and it is only permissible there is a voluntary written agreement to that effect. Without a voluntary written agreement to pay rent, the manager's apartment is free, without any offset from the wages! Usually, the agreement is oral. And then what?

    The manager can sue the landlord for the unpaid wages, plus an extra month "waiting time penalty", and interest, plus attorney fees and court costs. Managers who face eviction enjoy the benefit of offset and a counter-suit for a substantial amount. It is not unusual for a landlord to owe the manager $20,000 in unpaid back wages.

    All that is necessary is to keep track of the time spent, or reconstruct to the best of ability what was done, how long it took, and how often it was done. If you are now a manager, start keeping your time log and make it accurate.

 

Ready to take the next step? Contact Ken Carlson

Updated 6/12/12