Renting a house or apartment in California presents many potential legal pitfalls for tenants and landlords alike. This article is Part 2 of a two-part series listing ten important rights and responsibilities every residential landlord and renter should know. Part 1 is available online.
6. Rent cannot be increased before the lease is up. Except when a lease includes a provision that allows the rental rate to increase during the period of the lease, rent may not be increased during the lease term. If the lease is month-to-month, the landlord must give 30 days’ advance written notice for increases of 10% or less. If the increase is greater than 10%, the landlord must give 60 days’ advance written notice. (Civil Code sec. 827.)
7. A landlord may not enter a leased property except under specific circumstances. As a general rule, unless there is an agreement to the contrary, a landlord may only enter the property under certain circumstances. Among the few circumstances that a landlord is permitted to enter leased property, he or she may do so:
- in the event of an emergency;
- to make necessary or agreed repairs, decorations, alterations or improvements;
- to exhibit the unit to prospective or actual purchasers or tenants;
- when the tenant has abandoned or surrendered the premises; or
- pursuant to court order.
(Civil Code sec. 1954.)
Unauthorized entry may be considered trespass, and possibly harassment, potentially subjecting the landlord to fines and other legal claims.
8. Subleasing and Assignment are allowed unless expressly forbidden. Subleasing and assignment are assumed to be allowed if the lease does not prohibit them. A lease agreement may lawfully prohibit a tenant from subleasing or assigning his or her interest in the lease.
A sublease maintains the legal relationship between the landlord and tenant, and in a sense makes the earlier tenant a landlord for the new tenant. (The earlier tenant is called the “sublessor” and the new tenant is the “sublessee.”) The sublessor is still on the hook for rent payments, and will be in default if the sublessee fails to make timely payments.
An assignment transfers the lease from the old tenant to the new tenant. Even if there is an assignment, the earlier tenant is still responsible under the lease unless he or she obtain a “novation” from the landlord. Novation, in this context, is an agreement to replace the previous tenant’s obligations under the lease with the new tenant’s obligations.
In most instances, tenants who wish to get out of a lease altogether should discuss their intentions with the landlord. If possible, the tenant should seek to be released from the lease through novation.
9. Every lease contains implied promises from the landlord. California law recognizes several “implied promises” contained in every residential lease, regardless of whether they are stated explicitly in a rental agreement. Two significant promises are the “implied covenant of quiet enjoyment” and the “implied warranty of habitability.”
The “implied covenant of quiet enjoyment” provides that a tenant must be free from “substantial interference” with his or her use of the property. Harassment of the tenant by the landlord may breach this protection. If a roommate or housemate is disruptive to the point of a nuisance, and the landlord does not quell the problem, the landlord may be in breach of the implied covenant of quiet enjoyment.
The “implied warranty of habitability” provides that rental units must be fit to live in. For example, a residential unit needs access to plumbing, garbage, and must have sturdy flooring. (See Civil Code sec. 1941.1.) The landlord also needs to provide certain basic security protections, for example, a working deadbolt and locks on windows accessible from the outside. (See Civil Code sec. 1941.3.)
If the property is not livable, as a first step, the tenant should notify the landlord. If the landlord refuses to repair the condition, or does not make timely repair, the renter is entitled to some degree of “self-help.” (Failure to fix the problem within 30 days raises a presumption that repair has not been timely made.) No more than twice in one year, in order to make the property habitable, a renter may make repairs costing up to one month’s rent, and deduct the cost of repair from rent. (Civil Code sec. 1942.) The renter may also vacate the premises and not pay for rent as of the date of leaving. (Civil Code sec. 1942.)
10. Moving out often requires notice. Parties should be familiar with any termination process provided under their residential lease. Under law, the standard notice requirement is 30 days’ notice. If a tenant has lived on the property for a year or more, the landlord must give 60 days’ notice to move the tenant out. (Civil Code sec. 1942.) The landlord need only provide three (3) days’ notice if the tenant has caused damage to the property, has violated the lease, is interfering with other tenants, or under certain other circumstances provided by statute. (Code Civil Proc. sec. 1161.)
Concluding thoughts. Hoping for the perfect landlord or the dream tenant is not an advisable legal strategy. Knowing your rights and responsibilities may be critical to successful leasing of property. You can hope for the best—and make every effort to deserve it—but that doesn’t mean you shouldn’t be prepared for the worst. Knowledge is power.
Tyler is a trial lawyer with a broad practice, including real estate disputes. Outside of litigation, Tyler teaches Remedies at Lincoln Law School of San Jose. Tyler also helps out at the Legal Counseling Office at Stanford University, where he frequently advises students on landlord-tenant issues.