TENANT/ LANDLORD

DO YOU HAVE QUESTIONS REGARDING YOUR RIGHTS AND RESPONSIBILITIES AS A LANDLORD OR A TENANT?

Call our Landlord/Tenant Hotline! (916) 444-0178 Monday - Friday from 8 a.m. - 5 p.m.

FAIR HOUSING HANDBOOKS

Fair Housing Handbooks are provided to Landlords and Tenants. For a copy of the 2008 Fair Housing Handbook please send a request along with your complete mailing address. If you need a copy right away you may obtain one at our office located at 1112 I Street, Suite #250, between the hours of 8 a.m. and 5 p.m. (Office is closed from 12 p.m. to 1 p.m.) Monday-Friday.

You may also call (916) 444-6903 and follow the telephone prompts to order a Handbook. There may be a delay in mailing. Due to the volume most Handbooks are mailed by bulk mail which requires more time.

The Handbooks may also be picked up at the following locations in addition to the Human Rights/Fair Housing Commission office at 1112 I Street:

Sacramento City and County public libraries

Unlawful Detainer Advisory Clinic, Carol Miller Justice Center, 301 Bicentennial Circle
Small Claims Advisory Clinic, Carol Miller Justice Center, 301 Bicentennial Circle
City of Citrus Heights City Hall, 6237 Fountain Square Drive

City of Elk Grove City Hall, 8380 Laguna Palms Way

City of Rancho Cordova City Hall, 2729 Prospect Park Drive, #117A

City of West Sacramento City Hall, 1110 West Capitol Ave.

Fair Housing Handbook Request

EXCERPTS FROM THE FAIR HOUSING HANDBOOK

Following are brief excerpts from the Fair Housing Handbook which partially answer some of the common issues which are discussed daily through the Tenant/Landlord Hotline. For more complete and additional information on landlord/tenant laws and issues, please refer to the Fair Housing Handbook: The page number which is printed after each topic is the reference page in the Handbook.

1. Rental Agreements In General

2. Month to Month Agreement

3. Changes in Rental Agreement

4. Lease Agreement (specified term)

5. Termination of Tenancy by Tenant

6. Termination of Tenancy Without Cause by Landlord

7. Termination of Tenancy With Cause by Landlord

8. Change of Ownership

9. Disclosure of Owner's Address

10. Written Receipts

11. Prohibited Lease or Rental Agreement Provisions

12. Non-Waiver of Rights to a Habitable Dwelling

13. Roommates

14. Landlord Entry

15. Security Deposits

16. Tenant's Duties

17. Landlord's Duties

1. RENTAL AGREEMENTS

In General, (See p. 23)

The terms and policies in or attached to the rental agreement, other than the rent and deposit amounts, which can vary between apartments, should be the same for all tenants.

Types of Rental Agreements

There are two standard types of agreements: the month-to-month tenancy and the fixed term lease for a longer period of time (such as 3 months, 6 months or 12 month’s term).

2. THE MONTH TO MONTH AGREEMENT

. Can be written or oral. However, for the protection of the landlord and the tenant

there should be a written and signed copy of the agreement.

· The tenant may vacate the property after giving the landlord a written 30-day notice of intent to leave. Rent should be paid for these 30 days.

· The landlord must give either a 60-day written notice (if tenant has resided in the property for 12 months or longer) or a 30-day written notice (if tenant has resided in the property for less than 12 months) to the tenant to terminate the tenancy, depending upon the circumstances. (See [Civil Code §1946.1], p. 23) The landlord need not give a reason for these notices. Section 8 tenants are entitled to a written 90-day notice for no cause termination. (Sample form p. 75)

· The landlord may give a 3 day pay or quit, a 3 day perform or quit or a 3 day quit notice where applicable. (Refer to ‘Notices of Termination for Cause', p. 42. See forms on p. 70, p. 71, p. 72)

· Other terms of the rental agreement can be changed by the landlord upon proper written notice, generally no less than 30 days (Refer to ‘Changes in a Rental Agreement’ below)

3. CHANGES IN RENTAL AGREEMENT, [CA Civil Code §827], (See p. 24)

Rental Agreements (month-to-month or other periods less than a month):

In a month-to-month residential rental agreement (or other periods less than a month), the landlord may give written notice to the tenant, changing the terms of the written or oral agreement (examples: changing the amount of rent or creating or revising the community policies). Any change in terms or revisions of community policies must be applied equally to all tenants.

In most cases, a 30-day written notice must be served for changes in the agreement.

For increases in rent, under a month to month agreement, a 30-day written notice is required before the rent can be raised; if the increase results in more than a 10 percent increase over the previous 12 month period, the notice period must be 60 days. (See p. 24).

For a landlord to terminate a tenancy, see [CA Civil Code §1946.1], page 36. However, the parties can agree in writing to less than a 30-day written notice for such changes, but in no case less than 7 days before the expiration of the term. Both parties must agree to the terms. (For example, if both parties have agreed to a seven day notice and the month to month agreement ends on the 30th of the month, then the 7 day written notice must be served by the 23rd of the month, or earlier, indicating that the change will take effect after the 30th).

Proper service is:

1. Personal delivery to a tenant(s) at his or her residence or place of business; or

2. If the tenant(s) is absent from his or her residence or place of business, by leaving a copy of the notice with a person of suitable age and discretion at the residence or place of business AND mailing a copy addressed to the tenant(s) at his or her place of residence; or

3. Posting the notice for each of the tenant(s) in a conspicuous place on the property if there is no person of suitable age or discretion to be found and mailing a copy to each tenant by first class mail.

Service upon a subtenant may be made in the same manner.

Please note that proper service of a written notice of a rent increase does not include options 2 and 3 above. Proper service of a written notice of an increase in rent is:

1. Personal delivery to a tenant; or

2. Mailing a copy of the notice to the tenant. If the notice is mailed, then five days is added to the notice period. For example, if the rent increase requires 30 days written notice and the notice is mailed, the increase does not take effect until 35 days after the date of mailing. (See “Rent Increases”, page 24, re: notice requirements for rent increases.)

A landlord may not impose a rent increase or other changes in terms as a means of retaliating or discriminating against a tenant. (See "Protection From Retaliatory Conduct", page 33)

4. LEASE AGREEMENT (Specified Term), (page 25)

Must be in writing if for a term longer than one year. [CA Civil Code §1624]

All parties are assured that the contract will last for a specific period of time unless a party violates a promise of the lease agreement.

The tenant and landlord are bound by the terms spelled out in the lease unless both agree to a change and there is proper notice. The landlord may not change any of the terms of tenancy unless the lease agreement so provides.

If the tenant breaks the terms of the lease agreement, the landlord can ask the tenant to remedy the problem within three days or vacate. The tenant may be liable for rent for the entire term of the lease agreement even if evicted for failure to comply with the lease agreement.

If the tenant vacates early, the tenant is responsible for the rent for the entire lease period unless and until the property is re-rented. If the landlord re-rents the unit before the end of the lease period, the landlord may not collect "double rent". The tenant is liable for only the "gap period" between his/her moving out and the money received by the landlord from the new tenant moving in.

In addition, the landlord has a duty to make a good effort to re-rent the property. This is called the duty to "mitigate damages" in contract law. [CA Civil Code §1951.2]

Landlords must also comply with the lease agreement. If a landlord fails to comply and, for example, attempts to change the terms of the contract mid-lease, then that landlord may be liable for a breach of contract. If the landlord forces the tenant to move out early when the tenant has not committed a breach the tenant may be entitled to moving costs.

5. TERMINATION OF TENANCY BY TENANT, (page 36)

Unless there is another agreement, a tenant must give the landlord a 30-day written notice of his/her intent to move. The written notice may be given at any time of the month. the tenant is generally responsible for the rent for the full 30 days, even if the tenant moves out sooner.

6. TERMINATION OF TENANCY WITHOUT CAUSE BY LANDLORD, (page 37)

On a month to month agreement when a tenant has resided in a rental unit for one year or more, he/she is entitled to 60 days advance written notice if the landlord wishes to terminate that tenancy without cause. A landlord may give 30 days written notice if the tenant has resided in the dwelling for less than one year.

A landlord who wishes to terminate the tenancy of a Section 8 (Housing Choice Voucher) tenant without cause must give a 90-day notice of termination.

7. TERMINATION OF TENANCY WITH CAUSE BY LANDLORD, (See p. 38 and p. 42)

A landlord may terminate either a month-to-month tenancy or a fixed term lease at any time with cause. The cause for the termination must be clearly stated on the face of the notice. This could include a 3-Day Pay or Quit , 3-Day Perform or Quit, or 3 Day Quit.

8. CHANGE OF OWNERSHIP, (See page 26)

If a tenant is in legal possession of the property at the time of a sale and the property is transferred to a new owner the existing rental agreement, policies and rules remain in effect until the new owner implements new documents.

9. DISCLOSURE OF OWNER'S ADDRESS, [CA Civil Code §1962 et seq.], (See p. 26)

Any owner of residential rental or individual signing a rental agreement on behalf of the owner shall include in the agreement the name, telephone number, and usual street address where personal service of process may be made on that owner, or anyone who is authorized to act on behalf of that owner, as well as the name, telephone number and address of the person to whom rent shall be paid, and in what form rent should be paid. The owner shall also provide a copy of the rental agreement to the tenant within fifteen days of the execution of the agreement (and once each year within fifteen days of a request by the tenant). If rent payments may be made personally, the agreement shall include the days and hours that someone will be available to receive the payment. The owner has the option of establishing an account at a financial institution to which rent can be paid, provided the institution is within five miles of the property. If the owner chooses this option, he/she must disclose in the agreement the name and address of the institution, as well as information on how to establish an electronic funds transfer procedure for paying the rent. Any party who fails to disclose the owner’s information as required by this section is considered the agent of the owner under law and/or rental agreement.

10. Written Receipts [CA Civil Code §1499], (See p. 25)

A debtor has a right to require from his creditor a written receipt for any property delivered in performance of his obligation. In other words, the tenant has the right to require from the landlord a written receipt for rents paid.

11. PROHIBITED LEASE OR RENTAL AGREEMENT PROVISIONS, [California Civil Code §1953], (See p. 25)

Any lease or rental agreement entered into after January 1, 1976 cannot ask the tenants to give up the following rights:

Rights regarding security deposits (See p. 27)

Rights regarding landlord entry (See p. 34)

Right to assert a legal cause of action in the future.

Right to notice or hearing as required by law.

Procedural rights in any litigation involving tenancy.

Right to have landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law.

If a provision of the lease asks the tenant to give up any of the above rights, that provision (and only that provision) of the lease shall be void as contrary to public policy.

12. NON-WAIVER OF RIGHTS TO A HABITABLE DWELLING, [CA Civil Code §1942.1], (See p. 25)

The tenant cannot waive their right to a habitable dwelling unless the landlord and tenant have agreed that the tenant shall undertake to improve, repair or maintain all or designated portions of the dwelling as part of the consideration for rental.

13. ROOMMATES, (See p. 26 and p. 38)

There are different types of roommate situations:

Where there is a single contract for all roommates with the landlord, each roommate is liable for the entire rent regardless of the arrangement among the roommates themselves. This means that if one roommate cannot pay the rent, the other roommate(s) must pay the delinquent roommate's rent or face possible eviction.

Where the roommates have separate contracts with the landlord, each roommate is bound by the terms of his/her individual agreement with the landlord.

Where an original tenant takes a roommate with the permission of the landlord, and the roommate is not listed on the rental agreement/lease, the original tenant continues to bear the responsibility to the landlord for the rental agreement/lease obligations.

NOTE: Even if the roommates do not sign a lease or rental agreement with the landlord, they are still probably entitled to the protection of California tenant-landlord laws, including proper notice and eviction procedures.

14. LANDLORD ENTRY, [CA Civil Code §1954], (See p. 34)

A tenant has a basic right of privacy that a landlord must respect. Unless it is an emergency, a landlord must give a tenant reasonable notice in writing of his/her intent to enter and may enter only during normal business hours. This notice must state the date of entry, approximate time, and purpose of the entry. Twenty-four hours notice is presumed reasonable notice. The owner may mail the notice to the tenant. In this case, six days prior to entry is presumed reasonable notice. Upon entering a dwelling unit, the landlord or agent must leave written evidence of the entry inside the unit. A landlord may enter the residence after written notice (‘Notice of Entry by Owner/Agent’ Form, See p. 74) only in the following situations:

· To make necessary or agreed-upon repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors. In case of entry by purchasers, the notice may be given orally, in person or by telephone, if the landlord or his or her agent has notified the tenant in writing within 120 days of the oral notice that the property is for sale and that the landlord or agent may contact the tenant orally for the purpose described above. Twenty four (24) hours notice under this provision would be presumed reasonable.

· For smoke detector inspection [CA Health and Safety Code §13113.7]

· To inspect water-filled furniture. [CA Civil Code §1940.5]

· As a result of a court order.

A landlord may enter in the following situations without written notice of entry:

· To respond to an emergency.

· If the tenant is present and consents to the entry at the time of entry.

· After the tenant has abandoned or surrendered the unit.

· A tenant and landlord can agree orally to an entry to make agreed repairs or supply agreed services.

The agreement shall include the date and approximate time of the entry, which shall be within one week of

the agreement. Where the tenant and landlord agree orally, no written notice required.

A tenant cannot prohibit a landlord from entering a rental because the tenant is not present or because the time is inconvenient for the tenant. If a tenant is unreasonable about allowing entry for reasons named above (other than an emergency), it may result in the landlord serving a 30-day or a 60-day or a 3 Day Perform or Quit notice to terminate the tenancy. If a landlord violates a tenant's right to privacy, the tenant may call the police to document the violation in a police report. A copy of the police report should be kept. It can serve as evidence if the tenant chooses to take the landlord to court for trespass.

15. DEPOSITS [CA Civil Code §1950.5], (See p. 27)

In General

Landlords usually will require a tenant to pay some sort of a deposit when a tenant moves in. It may be called a "Security Deposit", "Cleaning Deposit", "Last Month's Rent", "Key Deposit", etc. The total amount of any or all pre-paid deposits cannot exceed two times the rent for an unfurnished apartment or three times the rent for a furnished unit. If the tenant possesses any water filled furniture, the landlord may increase the security deposit equal to one-half of one month's rent [CA Civil Code §1940.5]. The law specifically states that no lease or rental agreement shall contain any provision characterizing a deposit as "non-refundable."

LANDLORD'S RIGHTS TO USE SECURITY DEPOSITS [CA Civil Code §1950.5]

“Security” means any payment, fee, deposit or charge, including, but not limited to, an advance payment of rent, used or to be used for any purpose, including, but not limited to, any of the following deductions:

· The costs reasonably necessary to clean the property after the tenant has moved to return it to the same level of cleanliness as it was when they moved in.

· The costs reasonably necessary to repair damages to the property caused by the tenant which are above and beyond normal wear and tear.

· Rent owed by the tenant.

· The court may allow the deposit to be used for late charges, unpaid utility charges or other debts incurred by the tenant and left unpaid.

A landlord cannot use the deposit to repair the following:

· Ordinary wear and tear: Ordinary wear and tear is not clearly defined in the law. However a landlord should consider actual damage versus normal usage of the rental unit when determining the amount to be refunded.

· Pre-existing damage: Damage that existed on the property before the beginning of the rental period.

NOTE: See ‘Disposition of Security Deposit’ Form, (See p. 87)

Tenant's Rights to the Security Deposit [CA Civil Code §1950.5 (f)] - Pre-Move Out Inspection

Upon giving or receiving a notice terminating a lease or rental agreement or prior to the end of a fixed term lease, a landlord must inform the tenant in writing of the tenant’s option to request, and be present for, an initial walk-through inspection of the unit which the landlord must honor no more than 2 weeks prior to termination of the tenancy. For complete information about the procedure and purpose of this inspection please refer to page 27.

Tenant's Remedies for Bad Faith Retention of the Security Deposit by Landlord

[CA Civil Code §1950.5 (k)]

If a tenant disagrees with the landlord's decision to keep any or all of a deposit, his options include:

· Contacting the landlord in writing to find out why the deposit was not returned. Keep a copy of the letter.

· If the landlord has taken money out to repair "normal wear and tear" or has acted unreasonably in using the deposit, the tenant may contact the landlord in writing and inform him/her that this is not a lawful use of a deposit and request the disputed portion of the deposit back. The tenant should keep a copy of the letter. If still dissatisfied the tenant contact the Small Claims Court Advisory Clinic or contact a private attorney. If the tenant or the landlord has filed in court for a refund or for additional damages, prior to or on the day of trial the Small Claims Mediation Program provides the opportunity to voluntarily resolve small claims cases. To schedule pre-trial mediation call (916) 875-7843.

· The Small Claims Advisory Clinic at the Carol Miller Justice Center can provide assistance and answer general questions about filing an action in Small Claims Court (See p. 50).

Effect on a Deposit When the Property is Sold [CA Civil Code §1950.5 (g) (h) and (i)]

If a landlord sells a rental unit while a tenant is living there, he/she must do one of the following within a reasonable time:

1. Return the deposit to the tenant, minus any lawful deductions; or

2. Transfer the deposit to the new owner and notify the tenant by registered mail of the transfer and of the new owner's name and address.

If the original landlord returns the deposit to the tenant, the new landlord may legally require the tenant to pay a new deposit. If the selling landlord does not return or transfer the deposit as set forth above, both the selling landlord and the new owner are jointly and severally liable for repayment of the security deposit to which the tenant is entitled. (See p. 29).

16. TENANT'S DUTIES [CA Civil Code §§1929 and 1941.2] (See p. 30).

In General, a landlord may not be responsible for repairing damage that resulted from the tenant being in substantial violation of his/her affirmative obligation under the law. The tenant has a duty to:

Keep his/her part of the premises clean and sanitary.
Properly dispose of garbage and other waste in a clean and sanitary manner.
Properly use and operate all electrical, gas and plumbing fixtrues and keep them as clean an sanitary as possible.
Not permit any person to willfully or wantonly destroy, deface, impair or remove any part of the structure or dwelling unit, equipment, or parts of the equipment.
Only utilize the premises for the purposes for which they are rented (to occupy the premises as a place for living, sleeping, cooking, etc.).
Repair all deterioration or damage caused by tenant or tenant's guest for recklessness or negligence.

17. LANDLORD'S DUTIES [CA Civil Code §1941.1] (See p. 31).

In general, a landlord must repair all problems that fall under his/her minimum obligations and ensure the following:

The roof, doors and windows are weatherproof (for example, no leaky roofs or broken windows).
The plumbing works, including hot and cold water, and there is a working sewer or septic tank connection.
The heater is in safe, working condition.
The lights and wiring work and are safe.
Floors, stairways and railings are in good repair.
When it is rented, the dwelling is clean, with no piles of trash or garbage and no vermin or rodents.
The landlord provides enough cans or bins in good condition with covers for the disposal of garbage and rubbish.

Owners who contract for period structural pest control for a unit must provide both current tenants and subsequent tenants with a copy of the notice provided by a registered pest control company.