1. Creation of Tenancy, Rents and Rental AgreementsThe following applies to California residential lease and rental agreements only, but not to agreements for transient accommodations such as hotels and motels.

A tenancy is created by the rental agreement. The rental agreement may be either oral or in writing express or implied, for a fixed term or on a periodic basis, such as month to month or week to week. If for a fixed term of more than one year, the lease must be in writing.

The written agreement should identify the parties, (the landlord must provide the tenant with his name and address or that of someone who is authorized to accept legal documents for him) {Civil Code Sec. 1943}, describe the property, specify the rent, state the rental period, starting date and rent due dates, late charges for rent, if any, be dated and signed by all.

A landlord may not evict a tenant for breach of a lease provision other than failure to pay rent unless the provision breached is in a writing signed by the tenant. Therefore, if there are any restrictions, such as a no pet clause, no subletting, late charges, etc., these should be in a writing signed by the tenant.

The amount of rent is left to the agreement of the parties and is based upon market conditions, except in certain rent control cities; Berkeley, Beverly Hills, Cotati, East Palo Alto, Hayward, Los Angeles, Los Gatos, Oakland, Palm Springs, San Francisco, San Jose, Santa Monica, Thousand Oaks and West Hollywood.

Rent is presumed to come due at the conclusion of the term, not at the beginning {Civil Code Sec. 1947} In other words, in a month to month rental agreement, the rent for June would be due on June 30. If you want the rent due on the first of each month in advance, you need to have an explicit agreement with the tenant to that effect. If the rent due date falls due on a holiday, Saturday or Sunday, then the tenant has until midnight the next business day to pay {Civil Code Sec. 12a and 12b}.

Late charge provisions should be in writing and are valid only if they are reasonably calculated to compensate the landlord for the cost of accepting and processing late payments. Late charges designed to deter the tenant from late payment are generally deemed inappropriate. Late charges of between 5 - 10% are generally held to be valid. Some rent control cities limit amounts that can be levied.

The term of the rental agreement is presumed to be month to month, and you must specify a different term in your agreement (written or oral), if it is to be otherwise {Civil Code Sec. 1943}.

The landlord may charge a non-refundable screening fee equal to his actual out of pocket cost, not to exceed $30 per applicant who is entitled to a copy of any credit report generated included in the charge. The parties are also competent to contract for the tenant to prepay not less than six months' rent arising out of a lease which is for an initial term of not less than six months { Code of Civil Procedure Sec. 1950.6}

At the conclusion of a fixed term lease, if the tenant remains in possession and continues to pay rent, the tenancy is presumed to be renewed on a month to month basis, with all the terms of the original lease intact {Civil Code Sec. 1945}. Otherwise, the landlord is entitled to possession at the conclusion of the term and may bring eviction proceedings if the tenant fails to move out {Civil Code of Procedure Sec. 1161}.

The law prohibits certain lease provisions. These prohibited items are listed at {Civil Code Sec. 1953}.

Some local city rent control ordinances require certain provisions, or permit others which may be of value to the landlord. For example, the City of Palo Alto, has a non-rent control ordinance that requires each tenant be offered a one year lease. You should contact your local rent control board and obtain a copy of the ordinance and any supporting materials which will enable you to understand your local ordinance.

A landlord you may require a co-signer to guarantee the performance of any written rental or lease agreement or lease. This guarantee must be in writing {Civil Code Sec. 2819}.

The landlord is required to hire an on-site resident manager for an apartment building of 16 or more units {Cal. Code of Regulations, Title 25, Sec. 42} .

2. Security Deposits

There is no longer a formal distinction among tenant deposits, i.e., security, cleaning, last month rent, pet, key, waterbed deposits, etc. California recognizes only a unitary security deposit. This is defined as any advance payment to the landlord to be used to remedy defaults in rent payments, repair of damage to the premises exclusive of normal wear and tear, cleaning upon vacation by the tenant, or to restore damage to specified landlord personal property in the custody of the tenant where the rental agreement so provides. Landlords may not charge any non-refundable deposits or "fees" {Civil Code Sec. 1950.5}.

The statute implies, but does not explicitly require, that this deposit be held separate by the landlord. Payment of interest is not required by State law, but several local jurisdictions do require it. Landlords who own rentals in Berkeley, Cotati, East Palo Alto, Hayward, Los Angeles, San Francisco, Santa Cruz, Santa Monica, Watsonville and West Hollywood must pay interest to tenants on deposits. Call the applicable rent board, city clerk or apartment association for further information or requirements.

The security deposit may not exceed three months' rent if the premises are rented furnished, two months rent if they are rented unfurnished. An amount equal to an extra one-half months rent if the tenant has a waterbed {Civil Code Sec. 1950.5}.

Within three weeks (21 days) of the date the tenant vacates the landlord must provide an accounting of any charges to the deposit in writing. The landlord may not charge for repairs, cleaning, etc., above and beyond reasonable wear and tear. The accounting may be mailed to the tenant's last known address together with any refund due. Failure to do this in bad faith subjects the landlord to any actual damage suffered by the tenant, as determined by the court, plus statutory damages of up to $600 {Civil Code Sec. 1950.5}.

When the landlord sells the property, before title passes, he must elect to refund any unused portions of tenant deposits to the tenants, with an accounting similar to the one mentioned above, or to transfer the unused portions of such deposits to the new owner through escrow, together with such accounting. Failure to do so subjects the new owner to joint and several liability with the old owner to any aggrieved tenants for damages {Civil Code Sec. 1950.5}.

3. Discrimination

California residential landlords are considered to be businesses within the meaning of the anti-discrimination statutes and are bound by them according to their terms.

All persons in the state are deemed to be equal and entitled to equal accommodations, advantages, etc., despite their sex, race, color, religion, ancestry, national origin or disability {Civil Code Sec. 51} Age discrimination is specifically prohibited {Civil. Code Sec. 51.2}, although senior housing is permissible {Civil. Code Sec. 51.3}.

Landlords are liable to their tenants under the sexual harassment statute {Civil. Code Sec. 51.9}

State Laws;

1. Fair Housing Act (Rumford) {Govt. Code 12955}

2. Senior Citizen Housing {Civil Code 51.3}

3. Handicapped Rights {Civil Code 54}

4. Unruh Act {Civil Code 52-53}

Discrimination in violation of these statutes may subject the landlord to substantial penalties {Civil. Code Sec. 52}

Federal laws;

1. Civil Rights Act of 1866

2. Fair Housing Act of 1968

3. Fair Housing Act Amendment (1972)

4. Fair Housing Amendment Act (1988)

5. Americans with Disability (1992)

4. Pets and Waterbeds

Landlords may refuse to rent to any tenant with a pet except properly trained dogs of any one of the protected disability classes of tenants. These tenant groups are the blind, visually handicapped, deaf or physically disabled {Civil. Code Sec. 54.1} A landlord may not charge an additional security deposit for such qualified dogs {Civil. Code Sec. 54.2} New law on the horizon may include senior citizen tenants keeping pets in certain public housing programs.

Landlords may not refuse to rent or continue to rent to tenants, with waterbeds or liquid filled furniture, who are residing in any structure built after 1972. Landlords are protected and have the right to be present at the time of waterbed installation to inspect for the proper installation, require minimum waterbed component standards, including conformity to the floor weight load limits of the local building code and most importantly require the tenant show proof of insurance for a minimum amount of $100,00.00 {Civil. Code Sec. 1940.5}.

5. Condition, Maintenance and Repairs

The landlord is under an obligation to put and keep his rental units in a condition fit for human occupancy, except for those conditions caused by his tenant's want of ordinary care {Civil Code Secs. 1929, 1941} A building fit for human occupancy must have at least the following characteristics {Civil Code Sec. 1941.1}.

1. Effective weatherproofing of roof, exterior walls, and unbroken windows

2. Plumbing up to code and in good condition

3. Water supply up to code providing hot and cold water

4. Heating facilities up to code and in good condition

5. Electrical lighting up to code and in good condition

6. Building, grounds and appurtenances clean and free of vermin at the time of renting

7. Adequate receptacles for garbage

8. Floors, stairways and railings in good repair Install and maintain locks

9. Conforming locks {Civil Code Sec. 1941.3}

The landlord's obligation to repair dilapidations in the characteristics of habitable dwellings does not arise if the tenant violates his own legal obligations as to maintenance, provided these violations substantially interfere with the landlord's ability to do the repairs {Civil Code Sec. 1941.2}

The landlord is obligated to wire the premises for at least one telephone line {Civil Code Sec. 1941.4}

Some local jurisdictions have enacted ordinances requiring certain types of locks, exterior doors, "peep holes," smoke detectors, etc.

Although a tenant may not waive his right to the foregoing habitability requirements, he can agree in writing to maintain, improve or repair these items as part of the consideration of his lease {Civil Code Sec. 1942.1}.

The tenant´s obligation is to maintain his rental household in a clean, sanitary and undamaged condition {Civil Code Sec. 1941.2}

The landlord having the duty to maintain the premises, has the countervailing right to enter the premises to do so {Civil Code Sec. 1954}.

Where the landlord fails to maintain the premises as above (i.e. the tenant requests a repair and it is not resolved in a timely manner (30 days is presumed reasonable), then the tenant has a number of remedies. He may do the repair himself and deduct it from rent under certain circumstances, or vacate and be discharged from further obligations under his lease {Civil Code Sec. 1942} He may also withhold the rent until the repairs are done, if the landlords breaches are substantial and have affected the tenant's health and safety.

A landlord may not collect rent on a premises which are substantially in breach of his obligations to maintain the premises (usually referred to as a breach of the implied warranty of habitability), and may be legally penalized if he does {Civil Code Sec. 1942.4} Acts in retaliation for a tenant exercising his legal rights may also subject the landlord to substantial legal penalties {Civil Code Sec. 1942.5}.

The breach of the implied warranty of habitability usually comes to a head where the tenant has failed (or refused) to pay the rent, the landlord has given a three day notice to pay or vacate, then initiated an eviction action and placed the matter before a judge or jury.

Where this occurs, and the tenant can show that the landlord's failure to maintain was a substantial breach of the implied warranty affecting his health and safety, the court or jury will determine the degree to which this breach devalued the rental value of the property to the tenant, usually expressed as a percentage, i.e., -15%, -25%, etc. This factor will then be applied to the lease's rental rate and the rental rate reduced by that amount. The tenant will have the opportunity to pay the past due rent less the percentage earlier found within five (5) days of entry of Judgment. If the tenant does so, the tenant wins. If the tenant fails to pay, the tenant is evicted {Code of Civil Procedure Sec. 1174.2}

6. Tenant Privacy and the Landlord´s Right to Enter the Dwelling

The landlord may enter the tenant´s premises only for specific reasons, during normal business hours and only after the tenant has been given at least 24 hour advance notice of the landlord´s intent to enter the dwelling {Civil Code Sec. 1954}. The only reasons a landlord may enter the dwelling are; 1. In an emergency, 2. To make necessary repairs, 3. To make agreed repairs, 4. To show the rental to prospective tenants, mortgagees or purchasers, 5. When the tenant has abandoned or vacated the premises or 6. Pursuant to court order.

7. Tenant Defaults and Termination of Tenancy

Tenancy terminations most often occur upon a default in a lease term, but may be terminated without default. Fixed term leases end automatically at the end of the term specified unless stated otherwise in the lease agreement. A one year lease ends on the one year anniversary of its effective date {Civil Code Secs. 789, 1945}. The lease will automatically renew for a period equal to the period for which rent is paid, where the tenant remains in occupancy and the landlord accepts a rent payment. So if the tenant pays a one month rental installment, the lease is renewed for one month, in effect becoming a month to month lease on the old terms. If no rent payment is accepted by the landlord, and the tenant fails to vacate, the landlord may proceed directly to an unlawful detainer proceeding filed in the appropriate court {Code of Civil Procedure Sec. 1161}.

Many rental agreements are on a month to month basis, with no specified termination date. In this case, either party may terminate the tenancy, at will, by giving a thirty day notice terminating tenancy to the other party {Civil Code Section 1946}. If you live in a rent control city be sure to find out if your local rent control ordinance prohibits or restricts this right.

Most tenancy terminations are for breach of a term or condition of the rental agreement. If the agreement is oral, the landlord may evict for failure to pay rent. If in writing, he may evict for breach of any material term of the agreement contained in the writing. On rare occasions, a landlord will terminate the tenancy for the creation of a nuisance or waste on the premises. Nuisance and waste are technical terms and such notices are beyond the scope of this article.

In the case of nonpayment of rent, the tenant must be given a three day notice demanding that the rent in default be paid or, in the alternative, that the property be surrendered to the landlord. The exact amount of rent in default must be specified. In the case of a breach of another lease covenant, the tenant must be given a three day notice demanding that the lease covenant be performed and the breach be stopped, if that is possible. For example, in the case of a no pet clause, the tenant must be given three days to remove the pet {Code of Civil Procedure Sec. 1161}.

In the case of any notice of termination, by default or not by default, the notice should describe the property by giving its address, be dated, identify all adults on the premises known to the landlord, and be signed and dated by the owner or a person empowered to act on his behalf. Any subtenant, authorized by the landlord or not, is entitled to an opportunity to perform a notice based on default (including a notice to stop subletting).

The notice must be properly delivered to the tenants. A 30 day termination notice may be served by registered or certified mailing {Civil Code Sec. 1946} In addition, this and the default and nuisance notices mentioned above may be served by three methods only: 1. hand delivery, 2. substituted service and mailing, or 3. posting and mailing. Substituted service of the notice may only be resorted to when the landlord has first attempted service at the tenant´s home and any known place of employment {Code of Civil Procedure Sec. 1162}.

Where the landlord reasonably believes the tenant has abandoned the leased premises (skipped), and the rent has been in default for at least 14 consecutive days, then the landlord may terminate the tenancy and retake possession by way of a 15 day notice under {Civil Code Sec. 1951.3}.

Upon the termination of a lease of a default nature, then the landlord is entitled to recover from the former tenant any rent in default, any rent loss suffered as a result of the breach and early termination of the lease, plus anything else the landlord has suffered as a result of the default. The landlord is under a duty to take reasonable steps to minimize this loss {Civil Code Sec. 1953.2}. In rare instances, the landlord may, if the lease so provides, elect not to terminate the tenancy and allow the premises to remain vacant, and attempt to collect the rent as it comes due for the duration of the lease {Civil Code Sec. 1951.4}.

8. Eviction Procedure and Landlord Retaliation

The remedy for the tenant who has refused to live up to his obligations under the rental agreement, or to vacate once it any lease has expired, is to evict him. A California eviction is referred to as an "unlawful detainer" and it is a special proceeding set up by statutes which provides for an accelerated process. The foundation for this process is the provision to the tenant of the requisite legal notice allowing him to cure his default and avoid forfeiture of his tenancy, or terminating his tenancy. See the section on TERMINATION OF TENANCY. Typically an uncontested eviction action takes under 30 days to complete from service of eviction notice to Sheriff restoration of the premises.

The tenancy having been terminated, whether for non-payment of rent and the use of a 3 day pay or quit notice or a 30 day quit notice, the landlord commences things by filing a complaint and having summons issued in the local municipal or superior court {Code of Civil Procedure Sec. 1166}. After service of these documents upon the tenants, they have five days to interpose a response at court (usually by filing an Answer or other pre-judgment motion) {Code of Civil Procedure Sec. 1167, 1167.3}.

If the tenants fail to appear to defend or otherwise contest their eviction, then the landlord may immediately have a clerk´s judgment for possession of the property, and can obtain judgment for any rent and other things he is entitled to later {Code of Civil Procedure Sec. 1169}.

Where the tenant answers, either party may demand a trial before a judge or jury, and this trial must occur within 21 days of the demand {Code of Civil Procedure Sec. 1170.5}.

Upon the conclusion of the trial, the court will pronounce judgment. If in favor of the tenant, the matter ends. If in favor of the landlord, the court will order that the landlord be restored to possession of the property, plus such monetary awards as are allowed {Code of Civil Procedure Sec. 1174}.

After the possession judgment is entered, the clerk will issue directing the Sheriff or Marshall to go to the premises and evict the tenant. The peace officer will deliver a five day notice to quit demanding that the occupants of the premises vacate or be evicted, and upon expiration of the five days, will physically put the tenants out and restore the landlord to possession. The peace officer will not, however, move or accept responsibility for any tenant personal property of the occupants which may remain on the premises. The former tenants have up to and including 15 days in which to reclaim their personal property {Code of Civil Procedure Sec. 1174}.

When the peace officer gives his initial eviction notice, any person who claims a right to possession of the premises may assert that right and that claim will be resolved under {Code of Civil Procedure Sec. 1174.3}.

The legal process of eviction is done by the landlord acting "In Propria Persona" or retaining an attorney. Uncontested cases usually consume 13 to 30 days. Where a tenant fights or contests their eviction, which would include at least one court hearing, the process will take 30 to 50 days to complete.

If the tenant can show that the landlord is trying to evict him, raise his rent, or otherwise increase his burdens of tenancy in retaliation for his exercise of a legal or constitutional right, then the landlord cannot recover possession from him, or enforce the rent increase or other action. Where the tenant has acted in the exercise of his rights within the past 180 days, the landlord is presumed to be acting in retaliation, and the landlord has the burden of proof of a reason for the eviction or other action. Where the eviction is for non-payment of rent, or the notice of termination of tenancy, or rent increase, specifies satisfactory cause for the action, then the tenant may still raise a defense of retaliation, but the tenant has the burden of proof of retaliation {Civil. Code Sec. 1942.5}.

9. Tenant Bankruptcy

The U.S. Bankruptcy Act provides that upon filing, creditors, such as landlords, are automatically restrained from continuing efforts to collect money or reclaim property from the bankrupt without permission of the bankruptcy court. The landlord and his attorney must act to obtain an order from the Bankruptcy Court permitting eviction of the tenant. A separate proceeding, referred to as a Motion for Relief From Automatic Stay, must be initiated in the Bankruptcy Court. At the hearing, the court considers whether or not relief should be granted to the landlord.

THREE-DAY-NOTICES To evict a tenant, the landlord must follow the proper legal process. If a tenant is behind in his or her rent, a landlord should -under most circumstances- serve upon a tenant a three-day notice to pay or quit. This service starts the legal process against the tenant.

A Three-Day-Notice to pay or quit form must be completed accurately to prevail in your lawsuit against the tenant. A Three-Day Notice To Pay or Quit must have the correct amount of rent stated for the proper period of time that the tenant owes and not to exceed a one year period of time. Late charges or deposits are not allowed on Three Day Notice to pay or quit for residential properties, but maybe on commercial properties. The law recently changed and Three Day Notices to Pay or Quit must now include the name, telephone number, and the address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment (provided that, if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on date posted, if tenant can show proof of mailing to the name and address provided by the owner), or the number of an account in a financial institution into which the rental payment be made, and the name and street address of the institution(provided that the institution is located within five miles of the rental property), or if and electronic funds transfer procedure has been previously established, that the payment may be made pursuant to that procedure or possession of the property, shall have been served upon him or her and if there is a subtenant in actual occupation of premises, also upon the subtenant.We highly recommend that a landlord does not set up an electronic funds transfer procedure with a tenant. This takes too much control out of the landlord's hands and makes it difficult to prove the rent was not paid timely or according to the terms of the contract. Any person over the age of 18, including the landlord can serve the Three-Day-Notice to Pay or Quit. After the notice expires, the next step in the eviction process is to file an action against the tenant in Superior Court which is called an Unlawful Detainer. The complaint for Unlawful Detainer, along with the Summons must be served upon the tenant. In California, the Municipal and Superior Courts have been consolidated into one court, now called the Consolidated Superior Court. Municipal Courts in California no longer exists. After being served with a Summons and Complaint, the tenant has five calendar days to file a response to the complaint. If the tenant fails to respond and the proper paper work is filed, a default for possession may be taken against the tenant and a clerk will issue a writ of possession upon the landlord's request. The next step the landlord needs to take is to forward the writ along with a fee to the Sheriff's office and request the Sheriff put him in possession of his property. If a tenant does file an answer to the complaint, then the landlord's next step is to request a trial in Superior Court.

THIRTY-DAY NOTICE TO QUIT There are basically two type of residential tenancies. The first is a "fix-term" tenancy, where the property is rented to the tenant for a fixed period of time, usually a year or more, and is normally formalized with a written agreement.

During this period, the landlord may not raise the rent unless it is called for in the contract and the tenancy may not be terminated except for cause. A fixed term tenancy or "lease" may not be terminated by a Thirty Day Notice to Quit.

The second type of tenancy is a "periodic tenancy." This is a tenancy for an unspecified time in which the rent is paid every "period"- month, week, every other week, etc. A periodic tenancy, that is a month-to-month tenancy maybe terminated with a Thirty Day Notice to Quit.

A landlord can evict a tenant for any reason, but not the wrong reason.

This means you cannot evict a tenant because of his race, color, ancestry, religion, sex, martial status, national origin or age. In addition, you cannot evict a tenant because he complained about the premises to local authorities, exercised rights given to tenants by law or engaged in behavior protected by the First Amendment of the Constitution of the United States. There are also similar protections afford to tenants under the laws of California. If you evict for an illegal reason, or if it looks like you are trying to, your tenant can defend the unlawful detainer on those grounds or choose to sue you later for damages. If a tenant does file an answer to the complaint, the next step is to request a trial in Superior Court. It usually takes about two weeks to get a trial date. If all goes in your favor at trial the court will award a judgement in your favor and you may have the clerk of the court issue a writ of possession for you. The lockout procedure will take 10-20 days after the trial date for the Sheriff to return possession to the landlord.

SERVICE OF NOTICES AND SUMMONS A Thirty Day Notice to Quit or a Three Day Notice to Pay or Quit may be served by any person over the age of 18. Although you can legally serve a notice if you are a landlord, it's often better to have someone else serve it. That way, if the tenant refuses to pay or move and contests the eviction by claiming he did not receive the notice you can present the testimony of someone who is not a party to the lawuit.

If you rent to more than one tenant, it is legally sufficient to serve just one tenant. However, if possible, it is better to serve separate copies of the notice on each tenant. We recommend doing this to minimize the possibility that a non-served tenant will try to defend against any subsequent eviction on the grounds that he didn't receive the notice. The four ways a tenant may be served a notice are by:

· Personal delivery to the tenant · Substituted service on another person plus mailing. · Posting the property plus mailing. · Certified mail.

The law forbids the plaintiff or an interested party from serving the summons and complaint.

RENTAL CONTRACTS

One of the first major decisions a landlord has to make when renting a property is if he or she is going to rent the property for a fixed term "Lease" or an unspecified period of time in which the rent is normally paid once a month, called a " Month to Month Tenancy".Because of what the rental market is in Southern our firm highly recommends entering into " Month to Month Tenancies" only. A Month to Month Tenancy can be terminated by either a landlord or tenant by giving a Thirty Day Notice. It is much easier to end the tenancy with a bad tenant as opposed to a Lease. To terminate a Lease the landlord must have just cause. Just cause might be an illegal act committed in the premises by the tenant or a guest. If the landlord does have just cause, he or she can serve a Notice to Quit based upon that cause. The problem is that the landlord will probably have to prove by clear and convincing evidence that just cause exists to a judge, in a lengthy trial or to a jury. In some areas where there are high vacancy rates and high turnovers of tenants, it is probably more advantageous for the landlord to lease the property. In that case it will be a hard decision for a landlord to make whether to lease the property or use a month to month agreement. If a tenant does vacate before the lease is over by it's terms, without just cause, the landlord could sue for the balance of the lease. The landlord does have a duty to mitigate his or her damages by reletting the property on behalf of the tenant at market rent. The tenant would also be liable for the costs of rerenting the property to a new tenant. Our firm recommends that landlords use a well written agreement, to rent their properties. The California Association of Realtors has a form called Residential Lease or Month-To-Month Rental Agreement (Form LR-11). This can be bought at your local Realtor's Board Office by the general public. It is important to have the most current updated version because each January there are new laws that go into effect changing landlords' "rights' and liabilities". Under CA law a landlord must provide a copy of the rental agreement or lease to the tenant within 15 days of its execution by the tenant. Once each calendar year thereafter, upon request by the tenant, the owner or owner's agent shall provide an additional copy to the tenant within 15 days. If the owner or owner's agent does not possess the rental agreement, the owner or owner's agent shall instead furnish the tenant with a written statement stating that fact and containing information of who, where, when, to send rent and notices to in addition to a telephone number of the owner or manager. CA Civil Code Section 1962, (4).

RENT INCREASES The state of California has limited rent control law through out the state but rent is heavily regulated in some areas like Santa Monica and San Francisco. In Riverside and San Bernardino Counties the only city that has rent control is Palm Springs. Mobile Home Parks are also governed by statutes that have specific regulations for rent increases.

In the past couple of years the state legislature enacted a new law that states, if a landlord increases the rent 10% or more, which he can only do twice a year he or she must give 60 days notice in writing of the rent increase. It is likely that we will see more rent control in California because tenant groups are getting stronger and the rental market is getting tighter. If you have rental units in a rent control area it is highly suggested you get a copy of the ordinance and become very familiar with them. Most rent control ordinances have large fines included in them if they are violated.

SECURITY DEPOSITS Security Deposits are addressed in Civil Code Section 1950.5. A nonrefundable security deposit is prohibited in a residential lease in California. A landlord may charge a nonrefundable fee for a screening application under Civil Code Section 1950.6., when a landlord or his or her agent receives a request to rent a residential property from an applicant, the landlord or his or her agent may charge that applicant an application screening fee to cover the cost of obtaining information about the applicant. The information requested and obtained by landlord or his or her agent may include but is not limited to personal references and consumer credit reports produced by consumer credit reporting agencies. A landlord or his agent may, but is not required to, accept and rely upon a credit report presented by an applicant.

The amount of the applications screening fee shall not be greater than the actual out-of-pocket cost of gathering information concerning the applicant, including, but not limited to, the costs of using a tenant screening service or consumer credit reporting service, and the reasonable value of time spent by the landlord or his or her agent in obtaining information on the applicant. In no case shall the amount of the application screening fee charged by the landlord or his or her agent be greater than thirty dollars ($30.00) per applicant. The landlord or his or her agent shall provide, personally, or by mail, the applicant with a receipt for the fee paid by the applicant, which shall itemize the out-of-pocket expenses and time spent by the landlord or his or her agent to obtain and process the information about the applicant. If the landlord or his or her agent does not preform a personal reference check or does not obtain a consumer credit report, the landlord shall return any amount of the screening fee that is not used for the purpose authorized by the applicant. If an applicant requests a copy of the report the landlord or his or her agent must provide a copy of the report.
A security deposit is defined as, "any payment by the tenant over and above the regular rent." But not limited to any of the following.1. The compensation of a landlord for a tenant's default in the payment of rent. 2. The repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant. 3. The cleaning of the premises upon the termination of the tenancy. 4. To remedy future defaults by the tenant in any obligation under rental agreement to restore, replace or return personal property or, appurtenances, exclusive of ordinary wear and tear if the security deposit is authorized to be applied thereto by the rental agreement. A security deposit is defined as, "any payment by the tenant over and above the regular rent." This is not exclusive by includes pet deposits, cleaning deposits, key deposits, remote deposits and up front payments, but some courts deem a last month's rent to be exactly that and do not consider it a security deposit. Thus if there is no security deposit and the tenants have a last month's rent but destroy the place the landlord must refund any money not used for the last month's rent. A landlord may demand two months worth of rent for an unfurnished apartment and three for a furnished apartment as the maximum security deposit. A landlord may demand a reasonable fee for waterbeds up to an additional half months worth of rent. In a residential tenancy, the landlord must send an accounting stating the reasons for withholding part or all of the security deposit within twenty-one days of the tenant vacating the premises and notifying the landlord. If the landlord the landlord fails to send an accounting within the statutory time period, the landlord must return the complete deposit to the tenant and because the amount is liquidated, prejudgement interest accrues. However, a failure to send an accounting does not result in the loss of the landlord's right to set off damages to the property. The right of set off must be accomplished through a cross claim against the tenant.The reasonable cost of cleaning the rental unit maybe deducted from the tenant's security deposit. The landlord may legally charge for any cleaning necessary to satisfy the "average" or "reasonable" incoming tenant. In practical terms a landlord cannot as a standard practice automatically charge a tenant for cleaning carpets, drapes, walls or windows in order to prepare the unit for the next tenancy. Instead the landlord must look at how well each particular tenant cleaned the unit, and charging cleaning costs to what was left to the balance of the deposit. Reasonable cleaning costs would include oven cleaning, removing decals from walls, removing mildew in the bathrooms and defrosting the refrigerator. Ordinary wear and tear to carpets does not justify a charge against a tenant's deposit. Such ordinary wear and tear would include simple wearing down of carpet or drapes because of normal use, or aging and include moderate dirt or spotting. In contrast, large rips or indelible stains would justify a deduction from the deposit for replacing or repairing the carpet or drapes. For a deduction for replacement to be proper the deduction must be prorated to subtract the useful life expectancy of the carpet or drapes already used up. A reasonable life expectancy for carpet might be 7 years, drapes 4 to 5 years. If a tenant has lived in the rental unit for six months or less, the full cost of repainting is subtracted from the tenant's security deposit if painting is necessary.
If the tenant lived in the rental unit between six months and a year, two-thirds of the painting cost is subtracted from the deposit. If the tenant lived in the rental unit for two years or more, the tenant would never be charged for painting no matter what the condition of the paint is on the wall. The tenant could be charged for prep work if time required goes beyond normal cleaning or wear and tear. If the walls are enamel a reasonable prorated period of time might be 4-5 years. Normally minor marks, nicks to the walls are the landlord's responsibility but a large number of holes in the wall and ceiling that require filling with plaster or patching should be charged to the tenant. It is important that the landlord have documentation to prove the condition of the property prior to the tenant moving in, and evidence of the condition when the tenant moved out. It is also important that the landlord have receipts and bills for all repairs done to property if he has to go to court. The court will not give him or her credit for his time, thus he or she must have bills or estimates from contracts if repairs are over $300.00 or a handyman's bill maybe acceptable if under $300.00.The tenant is also responsible for rent when he or she did not give a full thirty day notice to the landlord that they were going to vacate the rental unit. The landlord is responsible to mitigate his or her damages by trying to relet the premises for the tenant. If you gave the tenant a Three Day Notice to Pay or Quit and they vacated the premises you cannot charge them for the balance of the month's rent. If a tenant was evicted they can be accessed the amount of the judgement against their security deposit but it is suggested all other expenses are deducted first because you can collect the judgement directly from the tenant with out further court proceedings.

COMMERCIAL EVICTIONS Our firm can help you with your commercial eviction. A commercial eviction can be more complex than a residential eviction. All commercial evictions require a consultation with an attorney before commencing your case.

COLLECTING JUDGEMENTS The easiest way to collect money that your previous tenant owes you is to do an accounting of the tenant's security deposit within 21 days of the time the tenant vacates the premises and deduct the judgement from their security deposit. The second easiest way is to contact our office and let us do it for you. We'll collect your judgement on a contingency fee plus cost, based upon the amount of the judgement we are able to collect for you. If we do not collect on your judgement, you do not pay us. In most cases, the security deposit will only cover partial damage to your unit, let alone the amount of rent, fees and costs on your property.

If you wish to attempt to collect the judgement yourself, you must locate the tenant's assets and have the assets levied on by the sheriff. To locate assets of the tenant's, you may want to schedule a debtor's examination, which is a proceeding where the judgement debtor is ordered to show up in court, at a certain date and time to answer, under oath, your questions about his income and assets. The only requirement for this procedure is that debtor live or work no more than 150 miles from the courthouse, and that you have not taken a debtor's examination in the past four months. If the debtor fails to show or refuses to answer legitimate questions about his financial affairs, he will be fined or even jailed.At a debtor's examination one should be able to obtain enough information to determine if the debtor can be collected from and the best way to do that collection.

TENANTS WHO FILE BANKRUPTCY

In California, tenants frequently file bankruptcy to delay the eviction process. When a tenant files bankruptcy, the bankruptcy "stays" all state court actions against the tenant and in most instances will stop the eviction from proceeding.

To proceed against the tenant, the landlord must file a Motion for Relief from the Automatic Stay in the Bankruptcy Court. This should be done along with a Request to Shorten Time on the motion, if the landlord has already served a Three Day Notice to Quit on the Tenant or a Thirty Day Notice to Quit on the Tenant. At the Relief From Automatic Stay hearing, a Bankruptcy Judge will make a determination whether the Automatic Stay shall stay in place for the benefit of the tenant. In most cases the Bankruptcy Judge will grant the Motion For Relief from the Automatic Stay. The Bankruptcy Judge will then sign an order at the hearing to allow the landlord to proceed with the eviction. After the order has been signed and entered by the court, the landlord may proceed to the next step of eviction. The whole process of getting Relief from the Automatic Stay should take 7-30 days. If the landlord chooses not to file a Motion the tenant can stay in the rental unit for up to 4 months and beyond depending if the debtor filed a chapter 13 or chapter 7. If the debtor filed a chapter 7 the case will be either discharged or dismissed within approximately four months. If the debtors filed a chapter 13 it can take up 60 months to complete a chapter 13, thus a landlord will probably want to file a Relief From Automatic Stay Motion as soon as possible if the debtor-tenant filed a chapter 13.

ABANDONED PERSONAL PROPERTY Many times when a tenant vacates a landlord's rental unit, the tenant will leave personal property on the premises. It is the landlord's responsibility to remove, store and maybe sell the property in a legal manner.

Where personal property remains on the premises after a tenancy has been terminated and the premises have been vacated by the tenant, the landlord shall give written notice to the tenant and to any other person the landlord reasonably believes is the owner of such personal property. This gives rise to another problem, because of the quantity of personal property that appears to be left, did the tenant surrender or vacate the premises. The three best ways to know the tenant is no longer in possession of the rental unit is when the Sheriff turns over possession to the landlord, when the tenant gives you keys and tells the landlord he or she is out of possession, or when the tenant gives you written notice he or she is no longer occupying the premises. If the tenant has not given you keys and or a written notice, and the Sheriff has not given you restitution papers, there is a good chance that the tenant still has legal possession of the rental unit and the landlord should not enter. The written notice for left personal property on the premises shall describe the property in a reasonably adequate way to permit the owner of the property to identify it. The notice shall advise the person to be notified that reasonable costs of storage may be charged before the property is returned, where the property may be claimed, and the date before which the claim must be made. The date specified in the notice shall be a date not less that 15 days after the notice is personally delivered or, if mailed, not less than 18 days after the notice is deposited in the mail. The notice shall be personally delivered to the person to be notified or sent by first-class mail, postage prepaid, to the person to be notified at his last known address and, if there is reason to believe that the notice sent to that address will not be received by that person, also to such address, if any, known to the landlord where such person may reasonably be expected to receive the notice. If the notice is sent by mail to the former tenant, one copy shall be sent to the premises vacated by such tenant.The notice should contain one of the two following statements: 1.If you fail to reclaim the property, it will be sold at a public sale after notice of the sale has been given by publication. You have a right to bid on the property at this sale. After the property is sold and the cost of storage, advertising, and sale is deducted, the remaining money will be paid over to the county. You may claim the remaining money at any time within one year after the county receives the money. 2.Because this property is believed to be worth less than $300.00, it may be kept, sold, or destroyed without further notice if you fail to reclaim it within the time indicated above. The personal property described in the notice shall be left on the vacated premises or be stored by the landlord in a place of safekeeping until the landlord either releases the property or disposes of the property according to the stated law. The personal property described in the notice shall be released by landlord to the former tenant or, at the landlords option, to any person reasonably believed by the landlord to be its owner if such tenant or other person pays the reasonable cost of storage and takes possession of the property not later than the date specified in the notice for taking possession. If the personal property is not released to the owner or former tenant, it shall be sold at public sale by competitive bidding. However if the landlord reasonably believes that the total resale value of the property is less than $300.00 the landlord may retain such property for his or her own use or dispose of it in any manner.
Either the landlord or former tenant may bid for the property at the public action. If a public sale must be held, notice of the time and place of the public sale shall be given by publication pursuant to Section 6066 of the Government Code in a newspaper of general circulation published in the county where the sale is to be held. The last publication shall not be less than five days before the sale is to be held. The notice of sale shall describe the property to be sold in a manner reasonably adequate to per the owner of the property to identify it.After deduction of the costs of storage, advertising, and sale, any balance of the proceeds of the sale which is not claimed by the former tenant or an owner other than such tenant shall be paid into the treasury of the county in which the sale took place not later than 30 days after the date of sale. The former tenant or other owner may claim the balance within one year from the date of payment to county by making application to the county treasure or other official designated by the county. If the county pays the balance or any part thereof to a claimant, neither the county nor any officer or employee thereof is liable to any other claimant as to the amount paid. . You do not want to store, go through the sale process and have to deal with your former tenant or your former tenants personal property. We also suggest you do not charge storage, it is too easy for the former tenant to try and make up that storage fee by claiming the ,"Lost Diamond Ring", that was in his or her dresser draw or kitchen cabinet when the Sheriff locked him or her out of the property. The quicker you have your property back without your former tenant in the property or your former tenants personal property on your rental unit, the faster you will be able to rerent the property , move into the property or sell the rental unit. We have had many clients who have helped their former tenants move into storage units and even pay the first month's rent, just to get them out and off their property.

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