Q. Must a landlord refund a deposit, which was left to hold a rental unit, if one of the parties changes their mind?
A. It depends on who changes their mind. If the landlord decides not to rent to the prospective tenant, then the deposit should be refunded in full. If the prospective tenant changes their mind, then usually the landlord may keep the some or all of the deposit, up to the extent they are damaged by the tenant’s breach of the agreement. The landlord should make a good faith attempt to minimize their damages by locating another tenant as quickly as possible.
Note: If the landlord can immediately re-rent the unit and loses no rent as a result of the tenant backing out of the deal, then the tenant should get their money back. The landlord can retain an amount equal to the rent they lose, plus the cost of advertising the unit again, if any.
Civil Code Section 1950.5
Q. How large a security deposit can a landlord require?
A. In an unfurnished rental unit the landlord can require up to two times the monthly rent as security, although most landlords require less. In a furnished rental unit, the landlord can require up to three times the monthly rent as security. Everything paid to a landlord at move-in, other than rent, is considered security and is potentially 100% refundable.
Q. What charges can a landlord deduct from the security deposit?
A. A landlord can charge a tenant for cleaning, unpaid rent, and damage to the rental unit beyond normal wear and tear. Tenants are required to leave the unit as clean as when they moved in. This includes carpets, drapes, miniblinds, ovens, etc. If the unit was dirty when the tenant moved in they are under no obligation to leave it clean. Tenants are required to pay for damage, but not normal wear and tear, to the unit occurring during their tenancy. Pre-existing damage cannot be charged to present tenants. Normal wear and tear is the degradation of a unit that occurs through its regular use. Examples of normal wear and tear could be: the natural discoloration of walls over time or as a result of poor air quality; the “matting” down or wear of pile of carpeting in high traffic areas (not dirt); warping doors or windows; minor chipping of paint or scratches on counters; and any other aging from normal use that results in depreciation of the property.
Q. How long does a landlord have to refund a security deposit?
A. A landlord must send the tenant an itemized accounting of the amount retained from the security deposit and/or refund the deposit not retained within 21 days of the date a tenant vacates the unit. That is generally true, but the law now allows the landlord to send an interim accounting within that time if he has good cause for the delay and he has more work to be done and more deposit to account for. Then he needs to send a final accounting within 14 days of completion.
Q. What can a tenant do if the landlord keeps all or a portion of the deposit and the tenant disagrees with the charges?
A. If a landlord fails to return a security deposit or keeps a portion of the security deposit and the tenant disagrees with the charges, the tenant can write the landlord a letter of demand. The demand letter should be sent certified mail, return receipt requested. The tenant should retain a copy for their records. If the landlord does not respond to the letter of demand within a reasonable amount of time, ex. 10 business days, the tenant can file an action in small claims court. If the tenant can prove that the landlord’s retention of the security deposit was willful the tenant could be awarded up to twice the amount of the security deposit.
Q. How can disputes over security deposits be avoided?
A. Keep copies of all rental records in one place. Showing that a tenant has the right to a return of security deposit requires preparation in advance. Start during a walk-thru just before you actually move in, even if the tenant was required to sign a lease or rental agreement that recited that the unit was in perfect condition. Make a list of the conditions in each room/area and have you and your landlord sign it. If the landlord won’t sign it, make sure you date it and give the landlord a copy. You can take pictures of the conditions before you move in so that the landlord cannot claim you damaged the items when you move out. By law, the landlord must conduct a walk-thru of the unit before you return the keys. The landlord is supposed to give a resident notice that he has the right to a “pre-move out” inspection within the last two weeks of tenancy. During the walk-thru, make a note of any complaint made by the landlord and fix/clean the problem before you turn the keys in. Take pictures of the things complained of after you fix them. Finally, after you have completely moved out, take pictures of each room/area showing the move out condition. Give the landlord a dated letter explaining what you did to fix any complaints and an address where to send your security deposit. Keep a copy of the notes and letters.
Q. Can a tenant use the security deposit for the last month’s rent?
A. A tenant may NOT use the security deposit as the last month’s rent without the landlord’s approval. Even if the lease or rental agreement separates the deposit and clearly indicates last month’s rent paid in advance. The law considers it all as security and cannot be used as last month’s rent without the landlord’s approval.
Q. What if the landlord sells the unit?
A. A landlord must transfer all security deposits to the new owner of the rental unit or refund to the tenant the security deposit less any legal deductions. If the landlord does not return the deposit to the tenant, the tenant may, upon vacating the unit, demand either the old or new landlord refund the deposit. If the old landlord returns the deposit to the tenant, the new landlord may require the tenant to post another deposit. If the old landlord does not return the deposit to the tenant, the new landlord may not require the tenant to post more than the maximum allowable deposit. The total deposit would include any amount given to the old landlord, whether or not transferred to the new owner.
Reimbursement Of Expenses
Q. Is a landlord obligated to make repairs in a rental unit?
A. The law requires every residential landlord to maintain the rental unit and common areas in a “habitable” condition, unless the tenants caused the problem. A tenant cannot give up this protection even if it says so in a lease or rental agreement. Habitable means that the rental unit does not have problems that can affect the health and safety of the tenants or reduce the normal use of the premises. The problem must also be substantial. Staff at Fair Housing can help you, but they do not decide what a breach of habitability by the landlord is. Habitability problems include, but are not limited to, the conditions listed in California Civil Code Section 1941.1 and Health and Safety Code Section 17920.3. Other building codes, reasonable security measures, and one wired phone jack. You can look up the code sections listed on www.leginfo.ca.gov/calaw.html or ask your local Code Enforcement Department in the city where you live to inspect. You should also take pictures and document the conditions.
A landlord can only maintain the unit in habitable conditions if the tenant informs him/her about any problems. Most tenants start by talking with the landlord about the problems while they are paying the rent. But a letter listing the problems and reciting the enclosed month’s rent for e.g. December, is harder for a landlord to deny receiving if s/he got the rent. Tenants should also cooperate reasonably with repairs during business hours or during any emergency. Tenants may waive their rights to a 24-hour notice of entry for repairs in order to get the listed problems fixed faster. A breach of habitability by the landlord begins when s/he first gets notice of the problem, even if the landlord has not had time to repair.
Q. What is a livable (tenantable) condition?
A. A rental unit is NOT livable if it substantially lacks any of the following:
- Roof, walls and windows that do not leak
- Working plumbing or gas facilities
- Water supply of hot and cold running water connected to a sewage disposal system
- Heating system that works
- Electrical lighting and wiring in working order
- Building and grounds kept clean, sanitary, and free from garbage, rodents, and vermin
- Adequate number of garbage cans or dumpsters in good repair
- Floors, stairways and railing in good repair
Other standards may be established by state and/or local city codes. Just because one of these conditions exists does not mean a unit is not livable. The court will look to see if it substantially lacks these conditions. This is not a decision that can be made by the Fair Housing Council of Orange County.
Failure To Deliver A Habitable Rental Unit
Q. What can a tenant do if their unit is uninhabitable?
A. There are five general options for the tenant, but all require giving notice of the problems to the landlord first. It is better to do this in writing.
Move Out. Wait a reasonable time after giving notice for the landlord to do the repairs and move out. 30 days is presumed to be reasonable but it is not cast in stone. Warn the landlord in your letter requesting repairs that if s/he doesn’t do the repairs that you will be moving out because of the conditions.
Help Calling Attention to the Problem. A tenant is under no duty to move out of a rental unit in order to claim it is uninhabitable. Just because a tenant remained in a rental unit does not mean that the unit was therefore habitable. Many tenants do not have the resources to move quickly, and there is a severe shortage of decent affordable housing. Other remedies can help spur the landlord to repair. The tenant may call the local city code enforcement inspectors and health department for an inspection of the rental unit. Tenants can ask their neighbors in other units if they want to be inspected at the same time.
Repair and Deduct. Wait a reasonable time after giving notice for the landlord to do the repairs and move out. 30 days is presumed to be reasonable but it is not cast in stone. Pay to have plumbers, electricians or others to make the needed repairs that are listed in Civil Code Section 1941.1. Then deduct the repair cost from the rent by submitting a copy of the bill together with the remaining rent due. The costs deducted cannot be more than one month’s rent and no more than two times per year.
Withhold Rents. A tenant’s obligation to pay rent goes hand in hand with the landlord’s duty to maintain the rental unit in a habitable condition. But it is not like a light switch; it is not all-or-nothing. If the landlord is in breach of habitability, the tenant remains obligated to pay only the amount of rent that would be reasonable taking into account the defective conditions shown in court. Fair Housing staff can assist, but do not make this decision. The tenant should save all unpaid rents so that they can pay the rent that may be found owing by the court. The tenant and landlord may also negotiate the rent due while repairs are completed. Taking this option involves a risk of a tenant being evicted if the problem isn’t seen as serious enough or was tenant caused.
Sue for Damages. Tenants can sue their landlords for damages including a retroactive reduction in rent and the annoyance and inconvenience of living in bad conditions. Each tenant can sue for up to $7500 in small claims court. All of the cases from the same building can be set for hearing at the same time.
Caution to Tenants: You should contact the Fair Housing Council or a private attorney BEFORE using any of the above methods to insure you protect yourself and your tenancy.
Q. How often and how much can a landlord raise a tenant’s rent?
A. Because there is no rent control in Orange County a landlord can raise a tenants rent as much and as often as they wish, so long as they give proper notice of the change in terms. Proper notice means that an increase of less than 10% requires 30 days written notice before the increase takes effect. However, increases of more than 10% in any 12 month period, requires 60 days written notice before the increase takes effect. (For more information regarding proper notice, please see the section on defective notices.)
Q. What should a tenant do if they cannot pay the rent?
A.If a tenant knows in advance that they will be unable to pay their rent, due to a temporary situation, they should talk to their landlord immediately to work out an arrangement with the landlord. If the tenant is unable to make arrangements with the landlord to delay the rent payment then the tenant should make arrangements to vacate the unit as soon as possible, giving the landlord written notice. A tenant can be held responsible for paying the rent for a full 30-day notice period whether or not they are in the unit. A landlord may be willing to waive the 30-day notice if they can avoid a possible eviction. A landlord is not required to provide housing for those who do not pay the rent. It is better for the landlord and tenant to avoid legal eviction proceeding if at all possible.
Q. What can a landlord do if a tenant fails to pay the rent on time?
A.A landlord should talk to the tenant if at all possible to see if suitable arrangements can be made for the payment of rent. If arrangements cannot be made then the landlord can give the tenant a 3-day notice to pay rent or quit. This notice gives the tenant 3 days to pay the rent. You count the days beginning the day after the tenant is served with the notice. The landlord should keep the original notice. If the tenant fails to pay within the 3 days, the landlord can file an Unlawful Detainer complaint (or eviction) against the tenant in Superior Court.
Q. Can a landlord lock a tenant out for not paying rent?
A. No. A landlord may never lock a tenant out of their apartment. Also, a landlord may not shut off utilities or other services for failure to pay rent or any other reason. Actions such as these by a landlord will give the tenant the right to sue the landlord for committing a self-help eviction. A tenant may be locked out by the Marshall if the landlord wins the Unlawful Detainer Action in court.
Q. Can an oral agreement be enforced?
A.Yes, an oral agreement can be enforced. A tenant is responsible for paying rent even if no written agreement exists. The terms of the agreement would be controlled by the California Civil Code.
Q. Which is better, an oral or written agreement?
A. In some cases it would be to a tenant’s advantage to have no written contract. In the event of a dispute, the landlord would not be able to collect attorney’s fee, should a tenant lose a court case. Other times, a tenant might be better off with no written contract if the terms of the contract are very slanted in favor of the landlord. Most of the time, it is better to have a contract in writing to help avoid potential conflicts. This way, each person knows his or her rights and responsibilities. Landlords and tenants should keep a copy of their written agreement handy to refer to it when they have questions.
Month to Month Agreements
Q. Can a landlord change the terms of a rental agreement?
A. Yes, with proper notice. A landlord may change any of the terms of the agreement such as: rent increase, increase security deposit, add or delete services or amenities, and terminating the tenancy.
Q. What is proper notice?
A. Proper notice depends on the terms of the agreement. Most agreements require a 30-day written notice. Some rental agreements, however, allow a shorter notice period. The notice period must never be less than 7 days. Parties must agree to a shorter notice period at the time they enter into the agreement. Absent a written agreement, the California Civil Code calls for a notice period equal to the time between rent payments. Never less than 7 days.
Q. Can a landlord change the terms of a lease?
A. No. A lease is a contract for a fixed period of time. A change of terms would require the approval of both parties (landlord and tenant). Some leases do contain a clause allowing the landlord to change the terms, but these are usually not true leases. If your agreement has a similar clause than either party may change the terms by giving notice.
Q. Once the lease expires, can a landlord change the terms?
A. Yes, as long as the parties have not entered into a new lease. If the parties do not enter into a new agreement, the old lease becomes a month-to-month rental agreement and can be altered with proper notice.
Q. What is a defective notice?
A. A defective notice refers to any notice intended to change the terms of your tenancy or to terminate it, and that is not in compliance with California Civil Code §827 or §1946 (see sections 827 and 1946 on pages 2-4). It is up to you to point out defects.
Q. What are some possible defective notices that a tenant may receive?
A. – A termination notice of less than 30 days, if the tenant has a month to month tenancy and has lived in the unit for less than a year, unless other terms have been approved in the rental agreement.
- A termination notice of less than 60 days, if the tenant has a month to month tenancy and has lived in the unit for more than a year.
- A notice of less than 30 days (or in some cases 60 days) to increase rent.
- A notice that is not written
Q. What relief am I entitled to if the landlord serves a defective notice?
A.If the landlord, manager or agent thinks the notice is not defective and tries to evict you using a court unlawful-detainer complaint process, then you must prove to the judge that the notice is defective. If the landlord, manager or agent violated Civil Code §827 or §1946, then he/she may be responsible for actual damages suffered by the tenant. The party who wins may also be entitled to recover attorney fees, if either party requests them at the beginning of the lawsuit and there is a written agreement providing for attorney fees.
OPTIONS FOR DEALING WITH A DEFECTIVE NOTICE
- You may contest the defective notice (30 day notice, rent increase, etc.) by using the sample letter enclosed. However, if your letter is unsuccessful, your landlord, manager, agent most likely will file an Unlawful Detainer action and you will have to contest the action in court. Therefore, use caution when using this option because even the best case has the possibility of being lost in court. With an unsuccessful Unlawful Detainer defense, the tenant has five (5) days to vacate after judgment. In addition attorney fees may be added to the judgment.
- You may bring up the issue of a defective notice to negotiate a more favorable timeline to move out.
- Another option is to comply with the defective notice (moving out, paying the rent increase, etc.) under “written protest” and suing later for your damages. Written protest is the act of writing to the landlord to let him/her know that you don’t agree with the action.
Defective Notice & Sample Letter
Right of Entry
Q. Can a landlord or manager enter a tenant’s rental unit?
A.In cases of emergency or tenant abandonment or surrender, a landlord or manager may enter a rental unit without notice. Otherwise, a landlord may enter a unit only after giving reasonable written notice for a valid reason. A valid reason would be to make a needed or agreed upon repair or alteration; to show the unit to prospective buyers, tenants, contractors, lenders or repair workers; to provide agreed upon services; to conduct an inspection related to a tenant’s security deposit, prior to their move-out; or pursuant to a court order. A landlord may NOT enter a rental unit simply to inspect, even if the rental agreement allows for it.
Noticed entry should be during normal business hours, unless the tenant consents. The right of entry shall not be abused by the landlord or used to harass a tenant. Reasonable notice has been deemed by the courts to be 24-hour notice. The notice should be personally delivered, left with someone at the premises of suitable age and discretion, or left at, near or under the usual entry door where it is likely to be discovered. It can be mailed, but the landlord should allow 6 days between mailing and entry. There is an exception that allows oral notice of entry during the sale of a property provided certain procedures are followed.
Q. Can a landlord harass a tenant?
A.No. It is illegal for a landlord to harass a tenant in an effort to force the tenant to move. A landlord must take the appropriate legal action to evict an unwanted tenant.
Q. What can a tenant do if the landlord harasses them?
A.First, the tenant should keep a list of each and every incident of harassment. The list should include the date, time and place of the incident as well as the names, addresses and phone numbers of any witnesses. Second, the tenant should write a letter to the landlord demanding that the harassment stop. If this does not work, the tenant may be able to sue the landlord in small claims court or get a restraining order from the Superior Court. The tenant should seek legal advice in this type of situation.
Terminating the Tenancy
Q. Can a tenant or a landlord terminate a tenancy at any time without a reason?
A. The answer depends on the type of tenancy. Periodic tenancies generally can be terminated by giving proper notice at any time without cause, but those that involve rent subsidy programs or that are in certain cities might still require a cause (for these contact an FHCOC counselor). If the tenancy is a fixed term lease it usually requires a cause to terminate during the fixed term. A fixed term lease doesn’t necessarily renew; renewal will depend on the terms of the lease and the actions of the parties.
Month-to-Month and Other Periodic Agreements – Civil Code Sections 1946 & 1946.1
A tenant may terminate a periodic tenancy with a notice equal to the rental period, not to exceed 30 days. This means a 30-day notice for month-to-month or a longer period, a 7-day notice for week-to-week, etc. A landlord must give at least a 30-day notice to terminate a periodic tenancy if the tenant has lived in the unit for less than a year or a 60 day notice if the tenant has lived in the unit for more than a year.
Neither the landlord nor the tenant has to give or have a reason for terminating a periodic tenancy. This means that the landlord may, for no reason, give the tenant a notice to terminate tenancy. The landlord may not give a notice to terminate the tenancy for an illegal reason, such as retaliation or discrimination. Tenants who have been retaliated or discriminated against may be able to sue the landlord for damages.
A landlord may threaten to or actually terminate a tenancy with a 3-day notice if the tenant violates their obligations under a rental agreement. The landlord may give a 3-day notice to pay rent or quit if the tenant has failed to pay rent according to the terms of the agreement. A 3-day notice to perform covenant or quit may be given if the tenant has materially breached a covenant of the rental agreement. For both of these notices, if the tenant cures the breach within three business days (non-holiday, weekdays) the tenancy continues. The tenant may elect to quit during the 3 days, but their obligation to pay money already due under the agreement remains. The landlord may also serve a 3-day quit notice (without opportunity to cure) for certain non-curable breaches; these are for committing waste or subletting contrary to a covenant of the agreement, or for a nuisance or illegal activity.
Neither party can terminate a lease without cause. A lease is a binding contract giving both landlord and tenant certain rights for a fixed period of time. A lease protects the landlord by guaranteeing that the rent on the unit will be pair during the lease period. It also protects the tenant by guaranteeing a set rent which cannot be increased during the term of the agreement.
If a tenant breaks the agreement by not paying the rent, damaging the property, or in any other material way, the landlord may terminate the tenancy for cause. The landlord can give a 30-day notice to vacate stating the specific reason for the notice. The tenant must have violated a term of the written agreement. The landlord can also give a 3-day notice to perform or quit. This notice gives the tenant three days to fix the problem. For example, it would give the tenant 3 days to pay the rent or remedy a violation of the agreement such as clean up the unit or get rid of unauthorized tenants, etc.
The landlord can also, for a very severe violation, give a 3-day notice to quit. This type of notice does not give the tenant an opportunity to fix the problem, rather this notice assumes that the problem is too severe to fix. Examples of severe violations could be: a conviction for drug dealing or other serious crimes, injuring or threatening to physically injure other tenants, etc.
Tenants may also terminate a lease if the landlord breaks the agreement. This is most common in cases where the landlord has failed to make important necessary repairs. In these cases, tenants may vacate the property during the term of the lease without further obligation to the landlord. Examples of important necessary repairs include: failure to repair broken plumbing, failure to provide hot water or electricity, failure to repair a leaking roof during the rainy season, etc.
Warning to tenants: Contact a private attorney of the Fair Housing council for more information. If you do not take the proper steps prior to vacating the unit, you could be in breach of the agreement, not the landlord.
Discrimination Under the Fair Housing Act
Specifically, the Fair Housing Act provides protection against the following discriminatory housing practices if they are based on race, sex, religion, color, handicap, familial status or national origin,
• Denying or refusing to rent housing
• Denying or refusing to sell housing
• Treating differently applicants for housing
• Treating residents differently in connection with terms and conditions
• Advertising a discriminatory housing preference or limitation
• Providing false information about the availability of housing
• Harassing, coercing or intimidating people from enjoying or exercising their rights under the Act.
• Blockbusting for profit, persuading owners to sell or rent housing by telling them that people of a particular race, religion, etc. are moving into the neighborhood
• Imposing different terms for loans for purchasing, constructing, improving, repairing, or maintaining a home, or loans secured by housing.
• Denying use of or participating in real estate services, e.g., brokers’ organizations, multiple listing services, etc.
Protection for People With Disabilities
Q. What is a disability?
A. A disability is any physical or mental impairment which substantially limits one or more major life activities, having a record of such an impairment or being regarded as having such an impairment. This includes: mental illness, AIDS, blindness, hearing impairment, mental retardation, mobility impairment, etc. Transvestites are expressly excluded from the definition.
Q. Can a Landlord retaliate against a tenant for trying to get repairs or exercising other rights?
A. In 1980 (yes we’ve been around that long), Fair Housing Council of Orange County took a case to the California Supreme Court to protect tenants from retaliation. The court published a decision that prohibits landlords from increasing rent, decreasing services, or attempting to evict for the tenant’s lawful and peaceful exercise of rights. This is broad protection from retaliation. However, if the tenant has committed some good cause for termination, the landlord may still be entitled to evict. The counselors on staff are trained to help you in this area of tenant rights.
Landlords and tenants have legal rights and responsibilities. The above information explains the law in a question answer format. It is written from the perspective of Orange County, CA, tenancies; those located outside of Orange County, CA, might be governed by different laws and requirements. The above information is not meant to take the place of legal advice. It is designed to give you a brief overview of key landlord/tenant concerns. If you have a problem, it is best to contact the Fair Housing Council of Orange County (CA) directly, a private attorney or another organization serving tenants and landlords.
Information above obtained from http://fairhousingoc.org/landlord.html#q2