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In Memory of 09-11-01
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TENANTS RIGHTS:
Tenants Rights:
Since
January of 2003 many new laws concerning your rights as a tenant have taken effect. I
would suggest that you click on the
"New Laws
2002 to 2005" Button located on the preceding page and review the
changes. You will probably learn a thing or two that may be useful in dealing
with your landlord. If you have questions concerning
"Security
Deposits,"
"Illegal Late Fees,"
"Rent Control,"
"Landlords Liability," or the new section on
"Mold
and Fungi," you will
probably want to check out the pages listed to your left. They
contain the latest information on each of the subjects.
New Laws That Benefit Tenants: Hardship Motions
Under existing California Law, a tenant who has
had their lease declare forfeit and been ordered evicted by a Court of competent
jurisdiction, was allowed to file a motion after judgment was entered against
them. The Motion is a request to be relieved from forfeiture based on the
concept of hardship. Due to the complexity and formality required under the
prior statute, this procedure was rarely used by tenants.
The Petition was required to be made
in writing. It further required that the tenant fully cure the breach upon
which the eviction was based. For example, if the tenant was two months behind
in their rent, they had to bring it current. If the had a dog, or had violated
some other provision of their rental agreement, then they had to immediately
remedy the breach. Most Courts held that this relief was not available to month
to month tenants. The usual reason given was that they had "No Lease"
to be restored to them.
This was a big problem for rent
control tenants who had a month to month tenancy and no formal lease.
If the tenant was in default and still wanted to keep their unit, they were out
of luck. Not any more.
Effective January 1, 2003 the new law
gives the Judge discretion to grant a "Hardship" Motion, even if it is the Judge
who makes the motion. The Judge hearing the case has a right, on his own
motion, to grant a hardship request. It also allows the Tenant to make the
Motion orally, but only if they are not represented by a lawyer. The motion can
be made at any hearing if the Plaintiff has been given notice of the Tenant's
intention to make the motion. The tenant can also make the Motion based upon
a Notice for an "Ex-parte Application" alone. The law also allows the Courts to
grant relief "Whether or not the tenancy has terminated" It
also applies to oral tenancy or rental agreements.
The Rental Agreement:
Whether it
is an oral agreement or in writing you have a contract with your landlord. If it
is in writing, then the document that you and the landlord
signed is called a "Rental Agreement" and for purposes of our
discussion it is your contract. Lawyers typically refer to Rental Agreements as a
lease. It can be a month to month agreement or for a specific term such as
for a year. No matter what it is called, it is a contract.
In the Rental
Agreement you are the person that they call the tenant or "lessee" and
the landlord is the "lessor." The lease is the basic rental
agreement between you and the landlord. It may contain many provisions
from how much your rent is going to be per month; a no pets provision; or parking arrangements. You should read and understand
the Rental Agreement. The language of the Contract is what lawyers call
"legalese" and you may not totally understand what the words mean. If
English is not your primary language, be sure that someone translates it for
you, "before" you sign it. Because once you do, it is legal and binding.
Don't assume that
just because the Rental agreement is printed or looks official that it is
sacred and cannot be changed.
Many of these agreements are written to favor the landlord and not the tenant.
If the document contains terms that you don't agree to, cross them out or modify
the terms by adding your own words or extra pages if necessary. Be sure that
"everything" that you and the landlord agree to are in writing. Because if it
isn't, you will not be able to enforce it later. For example, if the
landlord promises to put in new carpet, make sure that it is written in the
contract.
Additional Terms that You are Probably Unaware of:
As a residential tenant, the law requires that the landlord
obey certain basic rules. While the Rental Agreement may not specifically
mention them, they are still there. For example, there are specific rules
regarding security deposits. Under the law the landlord must account for and
return any unused portion of your security deposit within 21 days after you
vacate the unit. The Landlord cannot make the security deposit non-refundable.
Even if he tries to get around this provision by calling it something else, it
is still a security deposit. For a more in depth discussion of Security Deposits
click on the button on the left.
Your tenancy is subject to a "Warranty of Habitability" which is really a minimum acceptable level
of basics that are required for a unit to be habitable by a tenant. For example,
the landlord must provide functioning heat, water, electricity, fully
functioning doors and windows with locks. If these minimums are not provided,
then the landlord cannot collect rent for the unit. If the unit falls below the
minimum standards, in certain circumstances and after giving notice and waiting
a reasonable time, you may make the repairs yourself and deduct the cost from
the rent. This procedure may be followed even if the rental agreement says that
you can't.
Beware of These Types of Tactics:
Be sure and read your lease carefully before you sign.
If you see a provision that claims that you have inspected the premises and
found them to be in satisfactory condition. Either strike out the provision,
inspect the unit carefully or write down each and every thing that you want
fixed. If the landlord won't accept your actions, keep looking at other units.
When the landlord rents out their unit to you, they sell
you the right to exclusive right to temporarily possess your unit. Your
possession is conditioned on your paying rent to the landlord. In essence the
landlord gives up their right to possession in exchange for money. Therefore, if
the landlord or his agent enters your unit, without notice, they are a
trespasser. There is an exception to this rule. Civil Code Section § 1954
provided in pertinent part that the landlord or their agent may enter your rental unit:
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Upon giving you reasonable advance notice, and then only for the purposes
of inspecting, repairing or showing the unit, during normal business hours.
Additional Requirements and Rights:
Civil Code Section §1941.4
absolutely requires the landlord to have deadbolt locks on the entry doors and
working locks on the windows. If he doesn't comply, then the landlord is in
violation of the
"warranty of habitability." To remedy the situation the tenant
may move out, repair and deduct the repairs or withhold the rent. Be sure to
check with and attorney before embarking on one of these courses of "self
help."
No
Discrimination Permitted:
Landlords cannot discriminate against children. Rules not
permitting children in units can only be permitted in Senior Citizen retirement
communities. However, the landlord can limit the number of people that may
occupy the unit. This can result in very close calls as to whether or not a
landlord is discriminating against children or the number of people that a
family can have in one unit. Of course, you cannot discriminate against someone
on the basis of race, religion, sex or national origin.
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