RENTERS' RIGHTS (1984)
Department of Fair Employment and Housing
State of California
Lease and Rental Agreements (Questions and Answers)
1. Can I Get My Deposit Back?
2. Can I Get Money Back To Hold A Rental?
3. How Much Notice Do I Have To Give?
4. If Repairs Are Needed, What Should I Do?
5. Can I Be Forced To Move?
-- The Eviction Process
-- Retaliatory Eviction
6. Can My Rent Be Raised?
7. Can I Get Interest On My Deposit?
8. Can My Landlord Enter My Apartment Without My
9. Can I Sublet My Apartment To Another Tenant?
10. For More Information
This information answers some of the most frequently asked
questions by tenants. The information included here reflects current
state laws as of May 1984. You should remember, however, that
laws and regulations regarding landlord-tenant relations are
constantly changing. Therefore, legal code sections are also included
so that you can look up the laws at your local library or law library.
Local landlord-tenant ordinances, such as rent control, could give you
added protection. As this information only covers state laws, you
should also check with your local city or county housing or attorney's
If you find that you are having landlord-tenant difficulties, it is
usually best to contact the local public agency having authority over
such matters (consult your phone book for the number, although it
may take several calls to find the correct agency; try looking under
your city or county offices of "Consumer Affairs" or "Housing" or
"Rent Control Board"). Or you can consult with an attorney or legal
aid program (look in the phone book under "Legal Aid"). You also
may consider contacting your local apartment owners' association,
sometimes listed as "Rental Housing Association."
LEASE AND RENTAL AGREEMENTS -- QUESTIONS AND ANSWERS
Many of the rights and responsibilities of landlords and tenants
are spelled out by the written or oral agreements that the two
parties make. These agreements are usually either on a month to
month basis (i.e., renting for no definite period of time) or by a lease
(renting for a definite period of time).
If you are leasing for a period longer than one year, the lease
must be in writing. In most other cases the lease or month to month
agreement only has to be oral, although it is definitely a good idea to
put it in writing.
Both leases and rental agreements have advantages and
disadvantages which you should consider. While you may not want
the long term commitment of a lease, you should realize that this
kind of agreement gives you protection that a month to month rental
agreement will not.
With a lease, you are assured that you can stay in the residence
for a specific period of time and the rent cannot be raised during this
time unless the lease states otherwise. In a rental agreement, the
landlord can evict you, raise your rent, or change other terms of the
agreement, under certain conditions described below. (Sec. 1624 CC
(California Civil Code))
1. CAN I GET MY DEPOSIT BACK?
California law says that only that part of the deposit may be kept
by the landlord which is reasonably necessary to pay for the unpaid
rent, repair damages caused by the tenant, and clean the apartment.
In other words, cleaning and security deposits cannot be NON-
refundable. In addition, you should receive the portion of the
deposit owed to you within two weeks after you have moved out.
(Sec. 1950.5 (a), (b), (e) and (i) of CC)
You also have other important protections:
1. Normally if you rent an unfurnished place, you cannot be
required to pay more than two months' rent for a deposit. If
you rent a furnished place, you cannot be required to pay
more than three months' rent as a deposit. (Sec. 1950.5 (c) of
2. Your deposit cannot be withheld to cover the cost of
repairing normal wear and tear. (Sec. 1950.5 (e) of CC)
3. You must receive an itemized written statement explaining
what was done with your security deposit within two weeks
after you move out. (Sec. 1950.5 (e) and (k) of CC)
4. If you and your landlord end up in court with a dispute over
the landlord's failure to return all or a portion of your
security deposit, your landlord must prove that the amount of
the deposit he/she is keeping is reasonable. (Sec. 1950.5 (h) of
In all cases, if you don't receive your refund within two weeks,
you should contact the landlord in writing -- preferably by certified
mail, return receipt requested -- to find out why you haven't. Make
sure you keep a copy of the letter. If you disagree with your
landlord's decision, you can file a lawsuit in small claims court. (Sec.
1950.5 (j) of CC) In addition, if you can show that your landlord's
refusal to return the money was not because of some honest dispute
but was intentional, you might be able to collect additional "punitive
damages" of up to $200 against him/her in court. (Sec. 1950.5 (h) of
If your landlord sells the rental unit while you're living there,
he/she must, with a reasonable amount of time and after deducting
any proper amounts from your deposit, either (1) transfer the rest of
your deposit to the new landlord, and notify you of the transfer and
the new landlord's name and address; or (2) return the remainder of
the deposit to you. The landlord must use either certified mail or
personal delivery to notify you of this information, and also must
give you an itemized written account if he/she decides to return only
a portion of the deposit to you.
An Additional Reminder About Deposits:
You and your landlord should inspect your apartment together
when you move in and fill out a check list describing the condition of
things. Then when you move out, the two of you can go through the
apartment with this list again and note any changes.
2. IF I GIVE THE LANDLORD A DEPOSIT TO HOLD AN APARTMENT
AND ONE OF US CHANGES HIS/HER MIND -- CAN I GET MY MONEY
Depending on the facts involved, you may or may not be able to
get your money back. For example if you give the landlord a deposit
to hold an apartment for 30 days and you change your mind after
five days, the judge may say that you should get part of the deposit
back if the landlord immediately rents the apartment to someone
else. But if the landlord doesn't obtain another tenant, you may have
to give up your deposit. In any event, if you feel it is unfair for the
landlord to keep your deposit, you might consider either talking to a
lawyer or going to small claims court.
Make sure you really want the apartment or house before you
make a deposit. Obtain a receipt for the deposit and have the
landlord write on it how the money will be used or applied, and the
conditions for a total or partial refund.
If you give a deposit to the landlord to hold an apartment and the
landlord changes his/her mind and rents it to someone else, the
landlord should return your deposit. Depending on the facts in your
particular case, you may also be entitled to additional money for
expensed you incurred because of his/her action. You may with to
talk to a lawyer or go to small claims court if you feel that you have
suffered damages because of the landlord's change of mind.
3. HOW MUCH NOTICE DO I HAVE TO GIVE WHEN I DECIDE TO MOVE?
First, always give written notice of your plans to leave. Oral
notice is not enough legally even if you have an oral rental
agreement. If you don't give the proper written notice, you may
have to pay additional rent.
Normally, if you pay rent once a month, you should give your
landlord an written notice that you intend to move 30 days in
advance. However, it is possible for you and your landlord, at the
time you move in, to agree to a shorter notice period as long as it is
at least seven days. (Sec. 1946 of CC)
Your notice of departure does not have to correspond to a due
date for rent. You can pay rent on June 1, give 30 days' notice on
June 10, and move out July 10. Of course, you still have to pay the
first 10 days of rent for July. You have to pay for every additional
day you remain on the premises.
If you move out early, you should try to make an arrangement
with your landlord that if someone else moves in, the new tenant
will pay the remaining portion of the rent, and you will receive that
4. IF REPAIRS ARE NEEDED, WHAT SHOULD I DO?
An important court decision states that in each rental agreement
there is an implied warranty of "habitability" (i.e., a landlord must
put a building unto a condition fit for human occupancy). You cannot
sign away your right to this warranty of habitability. (Green v.
Superior Court (1974) 111 Cal Reptr. 704)
A landlord must repair all problems which fall under his/her
minimum obligations, unless the damages were caused by your lack
of care. A landlord's minimum obligations include that:
1. There are no leaks when it rains, and no broken doors or
2. The plumbing has to work, including hot and cold water, and
there must be a working sewer or septic tank connection.
3. The heater has to work and be safe.
4. The lights and wiring have to work and be safe.
5. Floors, stairways and railings have to be in good repair.
6. When it's rented, the place has to be clean, with no piles of
trash or garbage and no rats, mice, roaches or other pests.
7. The landlord has to provide enough cans or bins with covers
for the garbage. (Sec. 1941 of CC)
If you have problems with any of the above, the law says that
you should take each of the following steps:
1. Inform your landlord about the needed repairs, making sure
your landlord knows exactly what is wrong. You may do this
orally or in writing, but written notice will offer you better
2. Wait a reasonable amount of time for the repairs to be
made. "Reasonable" depends on the circumstances. If you
don't have heat in a cold month, you only have to wait a few
days. The law says that 30 days is "presumed" to be
reasonable. This means that if you wait fewer than 30 days
and the case goes to court, you must prove the shorter wait
3. If the repairs are not made by the landlord within a
reasonable time, you make have the made yourself. Keep a
record of the costs and then deduct them from your next
rental payment. Or you may move out and not be responsible
for paying any more rent.
If you make the repairs on your own, the cost you deduct can't be
more than one month's rent, and you can't use this right more than
two times in any 12-month period. (Sec. 1942 of CC) You cannot give
up your legal right to repair and offset (deduct the cost) unless your
rent was lowered because you agreed to do things your landlord
normally is required to do. But if you made such an agreement
under pressure in order to get your place, the agreement is not
You may try another approach to get your landlord to fix the
problem. If your place does not meet the required standards of
habitability, you also could stop paying rent until the needed repairs
are made. If your landlord takes you to court, you can argue that
you have the right to withhold some rent to get the landlord to make
repairs. However, you should talk to a lawyer before withholding
rent because this is a complicated process. If you withhold some of
the rent, you probably should also deposit it into a special "escrow"
account, to show that you are willing to pay the rent if the landlord
makes the repairs. A special savings account or an account set up by
the court are examples of a special account.
5. CAN I BE FORCED TO MOVE?
When a landlord wants you to move from a month to month
rental, the landlord must first give you written notice. If you don't
comply with the written notice, the landlord's second step is to sue
you in court. A landlord legally cannot walk into your residence and
physically remove you or lock you out if you do not comply with a
written notice. A landlord must use the court. (Jordan v. Talbot
(1961) 12 Cal Reptr. 488)
The Eviction Process
There are five steps to the eviction process:
1. You receive a written notice from the landlord asking you to
2. If you don't move, your landlord files a lawsuit called an
"unlawful detainer." In most cases you have only five days to
3. You and your landlord go to court and explain your stories
to a judge or jury.
4. There is a court decision.
5. If you lose your case, you most move. If you don't move,
the landlord is granted a "writ of possession." Five days after
the sheriff has delivered a notice to you or posted it on your
door, the sheriff can evict you if you do not voluntarily move
out. This is the only way the landlord can have you
physically removed from the property.
1. Written Notice
A landlord can give several types of written notice. Usually
written notice must be given at least 30 days in advance, yet in
certain circumstances, three days' notice is all that's required.
-- A three-day notice is given in such cases as when you have
not paid the rent, have destroyed or damaged the property, or have
violated the rules or regulations of the lease or rental agreement. A
three-day notice must state why you are being asked to leave, and if
the problem is correctable, what you must do to stay. If you correct
the problem or if the landlord changes his/her mind and agrees to
overlook the problem, the three-day notice is cancelled (and the
lease or rental agreement continues in effect) and you do not have to
move. (Sec. 1161 of CCP - Code of Civil Procedure)
-- A 30-day notice is given if the landlord simply wants to end
the rental agreement -- the landlord does not need to give a reason
unless you live in a federal or state subsidized housing development.
Generally a lease relationship cannot be ended by a 30-day notice.
(Sec. 1946 of CC) A 30-day notice is required if your place has been
involuntarily sold (for example, at a judgment or foreclosure sale),
unless you have a rental period that is shorter than one month (such
as a week to week rental, in which case you need to be given only
seven days' advance notice). However, if your landlord voluntarily
sold your place, the new landlord assumes the same terms and
conditions (for example, the rental agreement or lease) which you
had with the previous landlord. (Sec. 1161a of CCP)
-- 180 days' notice is required when an apartment is converted
to a condominium. This notice may be given at any time during the
conversion process. You also are entitled to a 90-day first option to
buy the unit you are living in, after the final approval is given for
the conversion. If your building is being converted to condominiums,
find out about local ordinances which may provide you with
additional protections. Check with your city council representative,
county supervisor or local consumer protection agency for this
information. (Sec. 66427.1 of Government Code)
Written notice is only the first step. If you don't move, your
landlord cannot turn off your utilities, prevent you from entering
your place by locking you out, remove the outside door or windows
with the intention of making you move, or remove your personal
property from the premises. If the landlord does, you may call the
police and file a lawsuit. If you win in court, you may receive actual
damages plus reasonable attorney's fees, and up to $100 for each day
of the violation. (Sec. 789.3 of CC)
2. Unlawful Detainer Lawsuit
If you refuse to move after your landlord has given you written
notice, your landlord can take you to court. A landlord must file and
win an "unlawful detainer" lawsuit to have you evicted. Usually
these suits are filed in municipal court, although if the suit involves
money for an amount less than $1,500, the suit may be filed in small
claims court. (Secs.1161-1179 of CCP)
If the trial will take place in municipal court, you and your
landlord may be represented by lawyers. If the trial will be in small
claims court, you and your landlord cannot be represented in court
by lawyers. However, you may want to speak to a lawyer before
the trial for help in preparing your case. Small claims court advisors
are available in most California counties to provide free assistance
for cases that will be heard in a small claims court. To contact an
advisor, contact the small claims court.
If you are served with a summons, you should act QUICKLY. In
most of these lawsuits, you will have only five days (including
weekends) to file a written answer or another proper response
before a decision may be entered against you. If you don't file a
written answer to the complaint, the landlord can request a default
judgment from the court without a formal trial and without the judge
hearing your side of the case. After a decision has been made by a
judge, it is difficult for a tenant to avoid being evicted. (Sec. 1169 of
Frequent defenses used by tenants when filing a written response
-- An incorrect amount of rent was requested
-- Some of the facts stated in the landlord's complaint are false
-- The property has substantial violations of building and
housing codes which violate the implied warranty of
-- The eviction was retaliatory (explained at the end of this
A filing fee is required when you give your written response to
the court, but fee waivers may be granted to eligible persons. You
may obtain a fee waiver form from the court clerk.
After you file your written answer with the court, you will
receive a "notice of trial" or "notice to appear" which sets the trial
date. In many California counties, the trial will be within 14 days
after you file your response, although this time differs among
3. The Trial and Decision
During the trial you should be prepared to tell why you object
to moving. Bring any documents or pictures, or arrange to have
testimony from witnesses to help you present your case. You may
obtain subpoenas from the court clerk before the trial to serve on
witnesses you want to have testify to make sure they will appear.
If the judge decides the case in your favor, you do not have to
move and the landlord may be ordered to pay your attorney's fees.
If the landlord wins the case, you must move. You may also be
ordered to pay the legal fees of the landlord. You may file an appeal
with a higher court if you wish to challenge the decision, but you will
probably still have to move unless the court grants a delay until the
case is finally decided.
4. Writ of Possession
If you lose the lawsuit and don't move, the landlord may get a
"writ of possession." If you haven't moved within five day after this
document is given to you or posted on the property, the sheriff or
county marshal will evict you. This is the only way the landlord can
have you and your belongings physically removed from the
property. (Jordan v. Talbot (1961) 12 Cal Reptr. 488)
If you move without taking your belongings, you have 15 days
(as described in the writ of possession) to reclaim your property.
Your landlord may charge you reasonable storage costs, even if your
belongings are kept on the premises. (Sec. 1174 of CCP)
If you don't reclaim your belongings in 15 days and the landlord
reasonably believes they have a resale value of less than $300, the
landlord may keep them, or sell them and keep the proceeds. If
your belongings are worth $300 or more and you don't reclaim them,
they must be sold at a public sale, after a notice announcing the sale
has been published in a newspaper. You may claim the proceeds of
the sale after a deduction has been made for the reasonable costs of
storage, advertising and other expenses associated with the sale.
Any amount you don't claim must be deposited with the county
treasurer within 30 days of the sale, You then have one year to
file a claim with the county treasurer to have this money returned to
If the judgment required you to pay back-rent, your landlord
may, with a court judgment, garnish up to 25 percent of your wages
or force the sale of your property that is not exempt from such
procedures (for example, household furnishings and up to $1,200
value from an automobile). After you have paid the amount of the
judgment, you should be sure that a "notice of satisfaction of
judgment" is filed by the landlord, which formally ends the dispute.
(Secs, 704.010-704.210 of CCP)
If you have complained about the uninhabitable condition of your
place or have given notice requesting the landlord to make repairs or
you will deduct their costs from the rent, your landlord cannot evict
you, increase your rent, decrease your service or force you to leave
involuntarily within 180 days of your action if his/her purpose is to
punish you for exercising your rights. This 180-day protection can
only be used once in any 12 month period. However, if you feel that
you have been unfairly treated after the 180 days, you should talk to
a lawyer because in some cases you may be protected for a longer
period of time. (Sec. 1942.5 of CC)
In addition, it is illegal for the landlord to retaliate or threaten to
retaliate against you at any time because you belong to a tenants'
union or organization, or because you have lawfully exercised any of
your legal rights. In these cases there is no limit to the number of
times you can make use of this protection, and no time limit when
this protection ends.
In cases where the landlord has illegally retaliated, you may sue
the landlord for his/her retaliatory action. If you win, the landlord
could be liable for your actual damages (e.g., hotel costs), reasonable
attorney's fees (if either you or the landlord request these fees at the
beginning of the lawsuit), and punitive damages from $100 to $1,000
if the landlord's retaliation was malicious.
If you feel that you are the victim of a retaliatory eviction, you
should be able to document the repairs and/or the complaint you
6. CAN MY RENT BE RAISED?
It depends. In a rental agreement, your landlord can raise your
rent any amount if he/she gives you written notice. The length of
the notice time must be at least as long as the period between your
rental payments. For example, for a month to month rental, the
notice cannot be less than 30 days. If you have a lease, your
landlord cannot raise your rent unless there is a provision for this in
the lease agreement. (Sec. 827 of CC)
Rent control ordinances exist in some areas of California. Check
with your local supervisor or city council representative for more
information about rent control ordinances.
7. CAN I GET INTEREST ON MY DEPOSIT?
This law does not require that you be paid interest on your
deposit, but you can try requesting it.
8. CAN MY LANDLORD ENTER MY APARTMENT WITHOUT MY PERMISSION?
You have a basic right of privacy which your landlord should
respect. Your landlord may enter your place only in the following
-- in an emergency.
-- to make necessary or agreed upon repairs, decorations,
alterations or improvements; supply necessary or agreed
upon services; or show the unit to prospective buyers, tenants
or repair workers.
-- when you have abandoned or given up the premises.
-- as a result of a court order. (Sec. 1954 of CC)
Unless it is an emergency or impractical, your landlord should
give you reasonable notice of his/her plans to enter, and enter only
during normal business hours. Twenty-four hours is usually
considered reasonable notice.
If your landlord seriously violates your right to privacy, you
may have the basis for a lawsuit. You also might want to contact the
police when the violation occurs; while the police often will not take
direct action, your report to them can help document your complaint
if you take the case to court.
9. CAN I SUBLET MY APARTMENT TO ANOTHER TENANT?
Most agreements allow you to sublet only with the landlord's
written consent. Some landlords will accept the rent directly from
the subtenant. But you are still responsible for paying the rent,
unless the subtenant's name replaced yours on the agreement or a
new agreement is written. The landlord's refusal to accept a
subtenant must be reasonable.
III. FOR MORE INFORMATION
For information about housing discrimination, contact your local
office of the California Department of Fair Employment and Housing
(check your telephone directory listing under State of California) or
write the department at 1201 "I" Street, Sacramento, CA 95814.
Additional sources of information on landlord-tenant issues are
available at your local library or bookstore, including:
-- (For tenants) CALIFORNIA TENANTS HANDBOOK, Moskovitz,
Warner and Sherman, Nolo Press. 1984. $9.95
-- (For landlords) LANDLORDING, Robinson, Express, P.O. Box
1373, Richmond, CA 94802, 1981. $15
-- THE EVICTION BOOK FOR CALIFORNIA, Robinson, Express,
P.O. Box 1373, Richmond, CA 94802, 1983. $13.50