Information from the Department of Consumer Affairs: California Tenants

California Department of Consumer Affairs

Living In The Rental Unit

California Tenants, A Guide to Residential Tenants' and Landlords' Rights and Responsibilities

As a tenant, you must take reasonable care of your rental unit and any common areas that you use. You must also repair all damage that you cause, or that is caused by anyone for whom you are responsible, such as your family, guests, or pets.104 These important tenant responsibilities are discussed in more detail under “Dealing with Problems“.

This section discusses other issues that can  come up while you’re living in the rental unit. For example, can the landlord enter the rental unit without notifying you? Can  the landlord raise the rent even if you have a lease? What can you do if you have to move before the end of the lease?

PAYING THE RENT

When is rent due?

Most rental agreements and leases require that rent be paid at the beginning of each rental period. For example, in a month-to-month tenancy, rent  usually must be paid on the first day of the month. However, your lease or  rental agreement can specify any day of the month as the day that rent is due  (for example, the 10th of every month in a month-to-month rental agreement, or  every Tuesday in a week-to-week rental agreement).

As explained in When You Have Decided To Rent, the rental agreement or lease must state the  name and address of the person or entity to whom you must make rent payments.  If this address does not accept personal deliveries, you can mail your rent  payment to the owner at the stated name and address. If you can show proof that  you mailed the rent to the stated name and address (for example, a receipt for  certified mail), the law assumes that the rent is receivable by the owner on  the date of postmark.105

It’s very important for you to pay your rent on the day it’s due. Not paying on time might lead to a negative entry on your credit report,106 late fees, and even eviction.

Check or Cash?

The landlord or landlord’s agent normally cannot  require you to pay rent in cash. However, the landlord or agent can require you to pay rent in cash if, within the last  three months, you have paid the landlord or agent with a check that has been  dishonored by the bank. (A dishonored check is one that the bank returns without paying because you stopped  payment on it or because your account did not have enough money in it.)

In order to require you to pay rent in cash, the landlord must first give you a written notice stating that your check was dishonored and that you  must pay cash for the period of time stated by the landlord. This period cannot  be more than three months after you:

  • ordered the bank to stop payment on the  check, or
  • attempted to pay with a check that the bank  returned to the landlord because of insufficient funds in your account.

The landlord must attach a copy of the dishonored  check to the notice. If the notice changes the terms of your rental agreement,  the landlord must give you the proper amount of advance notice (see Before You Agree to Rent).107

These same rules apply if the landlord requests that you pay the security deposit in cash.

EXAMPLE: Suppose that you have a month-to-month rental  agreement and that your rent is due on the first of the month. Suppose that the  rental agreement does not specify the form of rent payment (check, cash, money  order, etc.) or the amount of notice required to change the terms of the  agreement (see Before You Agree to Rent).

On April 1, you give your landlord your rent check  for April. On April 11, your landlord receives a notice from his bank stating  that your check has been dishonored because you did not have enough money in  your account. On April 12, the landlord hands you a notice stating that your  check was dishonored and that you must pay rent in cash for the next three  months. What are your rights and obligations under these facts? What are the  landlord’s rights and obligations?

Unfortunately, the law that allows the landlord to require cash  payments does not clearly answer these questions. The following is based on a  fair interpretation of the law.

The requirement that you pay rent in cash changes  the terms of your rental agreement and takes effect in 30 days (on May 12).  This is because under your rental agreement, the landlord must give you 30  days’ notice of changes in it. ( See Before You Agree to Rent.) Therefore, you could pay your May 1 rent payment by check.  However, this might cause the landlord to serve you with a 30-day  notice to end the tenancy (See Terminations and Evictions). The requirement that you pay rent in cash  continues for three months after the landlord received the notice that your  check was dishonored (through July 10). You would have to pay your June 1 and  July 1 rent payments in cash, if the tenancy continues. What about your April 1  rent check that was returned by the landlord’s bank? As a practical matter, you  should make the check good immediately. If you don’t, the landlord can serve  you with a three-day notice, which is the first step in an action to evict you (see Terminations and Evictions).108

Obtaining receipts for rent payments

If you pay your rent in cash or with a money order,  you should ask your landlord for a signed and dated receipt. Legally, you are  entitled to a written receipt whenever you pay your rent.109 If you pay with a check, you can use the  canceled check as a receipt. Keep the receipts or canceled checks so that you  will have records of your payments in case of a dispute.

Late fees and dishonored check fees

A rental agreement  cannot include a pre-determined late fee. the exception  to this rule is when it would be difficult to figure out the actual cost to the landlord  caused by the late rent payment.  even then, the pre-determined late fee should  not be more than a reasonable estimate of costs that the landlord will face as a result of the late payment. A late fee that is so high that it amounts  to a penalty is not legally valid           110

Additionally, in some communities, late fees are limited by local rent control ordinances. (See Rent Control.)

What if you’ve signed a lease or rental agreement  that contains a late-fee provision, and you’re going to be late for the first  time paying your rent? If you have a good reason for being late (for example,  your paycheck was late), explain this to your landlord. Some landlords will waive (forgive) the late fee if there is a good reason  for the rent being late, and if the tenant has been responsible in other ways.  If the landlord isn’t willing to forgive or lower the late fee, ask the landlord  to justify it (for example, in terms of administrative costs for processing the  payment late). However, if the late fee is reasonable, it probably is valid;  you will have to pay it if your rent payment is late, and if the landlord  insists.

The landlord also can charge the tenant a fee if the  tenant’s check for the rent (or any other payment) is dishonored by the  tenant’s bank. (A dishonored check is often called a “bounced” or “NSF” or “returned” check.) In  order for the landlord to charge the tenant a returned check fee, the lease or  rental agreement must authorize the fee, and the amount of the fee must be  reasonable.

For example, a reasonable returned check fee would  be the amount that the bank charges the landlord, plus the landlord’s  reasonable costs because the check was returned. Under California’s “bad check” statute, the  landlord can charge a service charge instead of the dishonored check fee  described in this paragraph. The service charge  can be up to $25 for the first check that is returned for insufficient funds,  and up to $35 for each additional check.111

Partial rent payments

You will violate your lease or rental agreement if  you don’t pay the full amount of your rent on time. If you can’t pay the full  amount on time, you may want to offer to pay part of the rent. However, the law  allows your landlord to take the partial payment and still give you an eviction notice.112

If your landlord is willing to accept a partial  rent payment and give you extra time to pay the balance, it’s important that you  and the landlord agree on the details in writing. The written agreement should  state the amount of rent that you have paid, the date by which the rest of the  rent must be paid, the amount of any late fee that is due, and the landlord’s  agreement not to evict you if you pay the amount due by that date. Both you and  the landlord should sign the agreement, and you should keep a copy. Such an  agreement is legally binding.

SECURITY DEPOSIT INCREASES

Whether the landlord can increase the amount of the security deposit after you move in depends on what the lease or rental agreement says, and how much of a security deposit you have paid already.

If you have a lease, the security deposit cannot be  increased unless increases are permitted by the terms of the lease.

In a periodic rental agreement (for example, a  month-to-month agreement), the landlord can increase the security deposit  unless this is prohibited by the agreement. The landlord must give you proper  notice before increasing the security deposit. (For example, 30 days’ advance  written notice normally is required in a month-to-month rental agreement.)

However, if the amount that you have already paid as a  security deposit equals two times the current monthly rent (for an unfurnished  unit) or three times the current monthly rent (for a furnished unit), then your  landlord can’t increase the security deposit, no  matter what the rental agreement says. (See the discussion of the limits on security deposits.) Local rent control ordinances may also limit increases in security deposits.

The landlord must give you proper advance written notice of any increase in the security deposit. (See “Proper Service of Notices.”)

The landlord normally cannot require that you pay the security deposit increase in cash. (See  Check or Cash in this section.)

RENT INCREASES

How often can rent be raised?

If you have a lease for more than 30 days, your  rent cannot be increased during the term of the lease, unless the lease allows  rent increases.

If you have a periodic rental agreement,your landlord can increase your rent, but the  landlord must give you proper advance notice in writing. The written notice  tells you how much the increased rent is and when the increase goes into  effect.

California law guarantees you at least 30 days’ advance  written notice of a rent increase if you have a month-to-month (or shorter)  periodic rental agreement.

Under the law, your landlord must give you at least 30  days’ advance notice if the rent increase is 10 percent (or less) of the rent  charged at any time during the 12 months before the rent increase takes effect.  Your landlord must give you at least 60 days’;  advance notice if the rent increase is greater than  10 percent.113 In order to calculate the percentage of the rent increase, you  need to know the lowest rent that your landlord charged you during the  preceding 12 months, and the total of the new increase and all other increases  during that period.

Examples: Assume that your current rent is $500 per month  due on the first of the month and that your landlord wants to increase your  rent $50 to $550 beginning this June 1. To see how much notice your landlord  must give you, count back 12 months to last June.

30 days’ notice required: Suppose that your rent was $500 last June 1. Here’s how to calculate the percentage of the rent increase and the amount of notice that the landlord must give you:

30 day notice rent chart

Your landlord therefore must give you at least 30 days’ advance written notice of the rent increase

60 days’ notice required: Suppose that your rent was $475 last June 1, and  that your landlord raised your rent $25 to $500 last November. Here’s how to  calculate the percentage of the rent increase and the amount of notice that the  landlord must give you:

60 day rent notice chart

Your landlord therefore must give you at least 60 days’ advance written notice of the rent increase.

Now suppose that your rent was $500 last June 1, but  that instead of increasing your rent $50, your landlord wants to increase your  rent $75 to $575 beginning this June 1. Here’s how to calculate the percentage  of the rent increase and the amount of notice that the landlord must give you:

Percentage rent increase chart

Your landlord therefore must give you at least 60 days’ advance written notice of the rent increase.

Normally, in the case of a periodic rental agreement, the  landlord can increase the rent as often as the landlord likes. However, the landlord must give proper advance  written notice of the increase, and the increase cannot be retaliatory (see Retaliatory Actions, Evictions and Discrimination). Local rent control ordinances may impose additional requirements on the landlord.

Increases in rent for government-financed housing usually  are restricted. If you live in government-financed housing, check with the  local public housing authority to find out whether there are any restrictions  on rent increases.

Rent increase; notice and effective date

A landlord’s notice of rent increase must be in  writing. The landlord can deliver a copy of the notice to you personally.114 In this case, the rent increase takes effect in 30 or 60 days, as just explained.

The landlord also can give you a notice of rent  increase by first class mail. In this case, the landlord must mail a copy of  the notice to you, with proper postage, addressed to you at the rental unit.  The landlord must give you an additional five days’ advance notice of the rent  increase if the landlord mails the notice. Therefore, the landlord would have  to give you at least 35 days’ notice from the date of mailing if the rent  increase is 10 percent or less. If the rent increase is more than 10 percent, the  landlord would have to give you at least 65 days’ notice from the date of  mailing.115

Example of a rent increase

Most notices of rent increase state that the increase  will go into effect at the beginning of the rental period. For example, a  landlord who wishes to increase the rent by 10 percent or less in a  month-to-month rental effective on October 1 must make sure that notice of the  increase is delivered to the tenant personally by September 1 or mailed to the  tenant by August 27. However, a landlord can make the increase effective at any  time in the month if proper advance notice is given.

If the increase in the rent becomes effective in  the middle of the rental period, the landlord is entitled to receive the  increased rent for only the last half of the rental period. For example:

  • Rental period: month-to-month, from the first  day of the month to the last day of the month.
  • Rent: $500 per month.
  • Rent increase: $50 (from $500 to $550) per month  (a 10 percent increase).
  • Date that the notice of rent increase is  delivered to the tenant personally: April 15 (that is, the middle of the  month).
  • Earliest date that the rent increase can take  effect: May 15.

If the landlord delivers the notice on April 15,  the increase becomes effective 30 days later, on May 15. The landlord is  entitled to the increased rent beginning on May 15. On May 1, the tenant would  pay $250 for the first half of May (that is, 15 days at the old rent of $500),  plus $275 for the last half of May (that is, 15 days at the new rent of $550).  The total rent for May that is due on May 1 would be $525. Looking at it  another way, the landlord is entitled to only one-half of the increase in the  rent during May, since the notice of rent increase became effective in the  middle of the month.

Of course, the landlord could deliver a notice of  rent increase on April 15 which states that the rent increase takes effect on  June 1. In that case, the tenant would pay $500 rent on May 1, and $550 rent on  June 1.

WHEN CAN THE LANDLORD ENTER THE RENTAL UNIT?

California law states that a landlord can enter a rental unit only for the following reasons:

  • In an emergency.
  • When the tenant has moved out or has abandoned the rental unit.
  • To make necessary or agreed-upon repairs, decorations, alterations, or other improvements.
  • To show the rental unit to prospective tenants, purchasers, or lenders, to provide entry to contractors or workers who are to perform work on the unit, or to conduct an initial inspection before the end of the tenancy (see Initial Inspection sidebar).
  • If a court order permits the landlord to enter.116
  • If the tenant has a waterbed, to inspect the  installation of the waterbed when the installation has been completed, and  periodically after that to assure that the installation meets the law’s  requirements.117

The landlord or the landlord’s agent must give the  tenant reasonable advance notice in writing before entering the unit, and can  enter only during normal business hours (generally, 8 a.m. to 5 p.m. on  weekdays). The notice must state the date, approximate time and purpose of  entry. 118 However, advance written notice is not required  under any of the following circumstances:

  • To respond to an emergency.
  • The tenant has moved out or has abandoned the  rental unit.
  • The tenant is present and consents to the entry  at the time of entry.
  • The tenant and landlord have agreed that the  landlord will make repairs or supply services, and have agreed orally that the  landlord may enter to make the repairs or supply the services. The agreement  must include the date and approximate time of entry, which must be within one  week of the oral agreement.119

The landlord or agent may use any one of the  following methods to give the tenant written notice of intent to enter the  unit. The landlord or agent may:

  • Personally deliver the notice to the tenant; or
  • Leave the notice at the rental unit with a  person of suitable age and discretion (for example, a roommate or a teenage  member of the tenant’s household); or
  • Leave the notice on, near or under the unit’s  usual entry door in such a way that it is likely to be found; or
  • Mail the notice to the tenant.120

The law considers 24 hours’ advance written notice to be reasonable in most situations.

If the notice is mailed to the tenant, mailing at  least six days before the intended entry is presumed to be reasonable, in most  situations.121 The tenant can consent to shorter notice and to  entry at times other than during normal business hours.

Special rules apply if the purpose of the entry is to  show the rental to a purchaser. In that case, the landlord or the landlord’s  agent may give the tenant notice orally, either in person or by telephone. The  law considers 24 hours’ notice to be reasonable in most situations. However,  before oral notice can be given, the landlord or agent must first have notified  the tenant in writing that the rental is for sale and that the landlord or  agent may contact the tenant orally to arrange to show it. This written notice  must be given to the tenant within 120 days of the oral notice. The oral notice  must state the date, approximate time and purpose of entry.122 The landlord or agent may enter only during  normal business hours, unless the tenant consents to entry at a different time123 When the landlord or agent enters the rental, he  or she must leave written evidence of entry, such as a business card.124

The landlord cannot abuse the right of access  allowed by these rules, or use this right of access to harass (repeatedly  disturb) the tenant.125 Also, the law prohibits a landlord from significantly and intentionally violating these access rules to attempt to influence the tenant to move from the rental unit. 126

If your landlord violates these access rules, talk  to the landlord about your concerns. If that is not successful in stopping the  landlord’s misconduct, send the landlord a formal letter asking the landlord to  strictly observe the access rules stated above. If the landlord continues to  violate these rules, you can talk to an attorney or a legal aid organization,  or file suit in small claims court to recover damages that you have suffered  due to the landlord’s misconduct. If the landlord’s violation of these rules  was significant and intentional, and the landlord’s purpose was to influence  you to move from the rental unit, you can sue the landlord in small claims  court for a civil penalty of up to $2,000  for each violation.127

SUBLEASES AND ASSIGNMENTS

Sometimes, a tenant with a lease may need to move out  before the lease ends, or may need help paying the rent. In these situations, the tenant may want to  sublease the rental unit or assign the lease to another tenant. However, the tenant  cannot sublease the rental unit or assign the lease unless the terms of the lease allow the tenant to do so.

Subleases

A subleases a separate rental agreement between the  original tenant and a new tenant who moves in temporarily (for example, for the  summer), or who moves in with the original tenant and shares the rent. The new  tenant is called a “subtenant.”

With a sublease, the agreement between the original  tenant and the landlord remains in force. The original tenant is still  responsible for paying the rent to the landlord, and functions as a landlord to  the subtenant. Any sublease agreement between a tenant and a subtenant should  be in writing.

Most rental agreements and leases contain a provision  that prohibits (prevents) tenants from subleasing or assigning rental units.  This kind of provision allows the landlord to control who rents the rental  unit. If your rental agreement or lease prohibits subleases or assignments, you  must get your landlord’s permission before you sublease or assign the rental  unit.

Even if your rental agreement doesn’t contain a  provision that prohibits you from subleasing or assigning, it’s wise to discuss  your plans with your landlord in advance. Subleases and assignments usually  don’t work out smoothly unless everyone has agreed in advance.

You might use a sublease in two situations. In the  first situation, you may have a larger apartment or house than you need, and  may want help paying the rent. Therefore, you want to rent a room to someone.  In the second situation, you may want to leave the rental unit for a certain  period and return to it later. For example, you may be a college student who  leaves the campus area for the summer and returns in the fall. You may want to  sublease to a subtenant who will agree to use the rental unit only for that  period of time.

Under a sublease agreement, the subtenant agrees to  make payments to you, not to the landlord. The subtenant has no direct  responsibility to the landlord, only to you. The subtenant has no greater  rights than you do as the original tenant. For example, if you have a  month-to-month rental agreement, so does the subtenant. If your rental agreement  does not allow you to have a pet, then the subtenant cannot have a pet.

In any sublease situation, it’s essential that both  you and the subtenant have a clear understanding of both of your obligations.  To help avoid disputes between you and the subtenant, this understanding should  be put in the form of a written sublease agreement that both you and the  subtenant sign.

The sublease agreement should include things like  the amount and due date of the rent, where the subtenant is to send the rent,  who is responsible for paying the utilities (typically, gas, electric, water,  trash, and telephone), the dates that the agreement begins and ends, a list of  any possessions that you are leaving in the rental unit, and any conditions of  care and use of the rental unit and your possessions. It’s also important that  the sublease agreement be consistent with the lease, so that your obligations  under the lease will be fully performed by the subtenant, if that is what you  and the subtenant have agreed on.

Assignments

An assignment is a transfer of your rights as a tenant to  someone else. You might use an assignment if you have a lease and need to move  permanently before the lease ends. Like a sublease, an assignment is a contract  between the original tenant and the new tenant (not the landlord).

However, an assignment differs from a sublease in one  important way. If the new tenant accepts the assignment, the new tenant is  directly responsible to the landlord for the payment of rent, for damage to the  rental unit, and so on. Nevertheless, an assignment does  not relieve the original tenant of his or her  legal obligations to the landlord. If the new tenant doesn’t pay rent, or  damages the rental unit, the original tenant remains legally responsible to the  landlord.128

In order for the original tenant to avoid this  responsibility, the landlord, the original tenant, and the new tenant all must  agree that the new tenant will be solely responsible to the landlord under the assignment. This agreement is called a novation, and should be in writing.

Remember: Even if the landlord agrees to a sublease or  assignment, the tenant is still responsible for the rental unit unless there is a written agreement (a novation) that  states otherwise. For this reason, think carefully about whom you let live in  the rental unit.

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104 Civil  Code Sections 1929, 1941.2. 105 Civil  Code Section 1962(f). 106 If  the landlord intends to report negative credit information about the tenant to  a credit bureau, the landlord must disclose this intent to the tenant. The  landlord must give notice to the tenant, either before reporting the  information, or within 30 days after reporting it. The landlord may personally  deliver the notice to the tenant or send it to the tenant by first-class mail.  The notice may be in the rental agreement. (Civil Code Section 1785.26;  Moskovitz et al., California Landlord-Tenant Practice, Sections 1.29, 4.9 (Cal.  Cont. Ed. Bar 2011). 107 Civil  Code Section 1947.3. Waiver of these provisions is void and unenforceable. 108 See  discussion of late fees and dishonored check fees. Paying by check  with knowledge that the account has insufficient funds and with intent to  defraud is a crime. (Penal Code Section 476a.). 109 Civil  Code Section 1499. 110 See  Harbor Island Holdings, LLC v. Kim (2003)  107 Cal.App.4th 790 [132 Cal.Rptr.2d 406] (liquidated damages provision  unenforceable because it bore no reasonable relationship to range of actual  damages parties could have anticipated); Orozco  v. Casimiro (2004) 121 Cal.App.4th Supp. 7 [17 Cal.Rptr.3d 175] (late fee  invalid because landlord failed to establish that damages for late payment of  rent were extremely difficult to fix). 111 Civil  Code Section 1719(a)(1). Advance disclosure of the amount of the service charge  is a nearly universal practice, but is not explicitly required by Section 1719.  The landlord cannot collect both a dishonored check fee and a service charge.  The landlord loses the right to collect the service charge if the landlord seeks the treble damages that are  authorized by the “bad check” law. (Civil Code Section 1719). 112Code  of Civil Procedure Section 1161 paragraph 2. 113 Civil  Code Section 827(b). Longer notice periods apply if required, for example, by  statute, regulation or contract. (Civil Code Section 827(c).) Tenants in  Section 8 housing must be given at least 30 days’ written notice of a  greater-than-10-percent rent increase if the increase is caused by a change in  the tenant’s income or family composition, as determined by the local housing  authority’s recertification. (Civil Code Section 827(b)(3)). 114 Civil  Code Section 827(b)(1)(A). 115 Civil  Code Section 827(b)(1)(B)(2),(3). 116 Civil  Code Section 1954(a)(4). 117 Civil  Code Section 1940.5(f). 118 Civil  Code Section 1954(b),(d)(1). 119 Civil  Code Section 1954(d), (e). 120 Civil  Code Section 1954(d)(1). 121 Civil  Code Section 1954(d)(1). 122 Civil  Code Section 1954(d)(2); see Moskovitz et al., California Landlord-Tenant  Practice, Section 3.3 (Cal. Cont. Ed. Bar 2011). 123 Civil  Code Section 1954(b). 124 Civil  Code Section 1954(d)(2). 125 Civil  Code Section 1954(c). 126 Civil  Code Section 1940.2(a)(4). 127 Civil  Code Section 1940.2(b). 128 Civil  Code Section 822.

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