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STATEWIDE CONFERENCE ON SELF-REPRESENTED LITIGANTS

STATEWIDE CONFERENCE ON SELF-REPRESENTED LITIGANTS. LANDLORD/TENANT BASICS MARCH 15, 2006. Landlord (LL) is a person or company that owns a rental unit LL rents or leases the rental unit to the Tenant (T) to live in

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STATEWIDE CONFERENCE ON SELF-REPRESENTED LITIGANTS

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  1. STATEWIDE CONFERENCE ON SELF-REPRESENTED LITIGANTS LANDLORD/TENANT BASICS MARCH 15, 2006

  2. Landlord (LL) is a person or company that owns a rental unit • LL rents or leases the rental unit to the Tenant (T) to live in • T obtains the right to exclusive use and possession of the unit during the lease or rental period

  3. Essence of the LL /Tenant relationship is that of a contract. • Contract may be written or implied under Federal, State, or Local Law • The LL /Tenant relationship is created from an agreement known as a rental agreement or a lease.

  4. RENTAL AGREEMENT 1. States the length of time between rent payments (e.g., month to month) 2. Oral or Written 3. Does not state the number of months the agreement is in effect 4. Tells how often the T must pay rent 5. Indicates how much notice the T must give the LL if the T decides to leave; and 6. Indicates how much notice the LL must give the T if the LL decides to change the terms of the tenancy or not renew the rental agreement. LEASES 1. States the number of months that the lease will be in effect (e.g., 6 or 12 months) 2. Oral or written 3. If lease is more than 1 year – must be in writing (Civil Code Section 1091, 1624(a)(3 4. T must pay rent and perform obligations under lease during entire lease period. RENTAL AGREEMENTS AND LEASES

  5. TENANT’S BASIC LEGAL RIGHTS • Limits on the amount of security deposit that the LL can require • Limits on the LL’s right to enter the rental unit • Right to refund of the security deposit, or a written accounting of how it was used after the T moves • Right to sue the LL for violations of the law or the agreement • Right to repair serious defects in the rental unit and deduct certain repair costs from the rent • Right to withhold rent under appropriate circumstances • Right under warranty of habitability • Protection against retaliatory eviction

  6. DETERMINING TYPE OF HOUSING • Privately Owned Housing • Not rent controlled • Rent controlled • Government Housing • Section 8 • Public Housing • Subsidized or Assisted Housing • Other nonprofit owned housing

  7. PRIVATE HOUSING WITHOUT RENT CONTROL • Rights determined by lease agreement (if any) • If no lease, length of tenancy determined by frequency of rent payment (e.g. month to month) • Right to a judicial determination before eviction • Few eviction protections • Landlord/Owner cannot raise rent more than 10% without a 60 Day Notice for Rent Increase (Civil Code §827) • Civil Code §1946.1 allowing a 60-Day Notice to Quit for a no fault eviction if T lived at residence for more than 1 year EXPIRED!

  8. PRIVATE HOUSING WITH RENT CONTROL • Limit Rent Increases • Amenities • Evictions

  9. SECTION 8, PUBLIC OR SUBSIDIZED HOUSING • Federal Government gives money to local housing authorities to house the Poor • Owner agrees to follow HUD Rules and Regulations • Generally spelled out in the Regulatory Agreement and in the Lease Agreement

  10. GOOD FAITH AND FAIR DEALING Every rental agreement and lease requires that the LL and the Tenant deal with each other fairly and in good faith.

  11. LANDLORD’S DISCLOSURES • LEAD BASED PAINT • If unit built before 1978, LL must disclose the presence of lead based paint and lead based hazards in the dwelling before T signs the lease or rental agreement • LL must also give T the federal government pamphlet, “Protect Your Family from Lead in Your Home.” • PEST CONTROL TREATMENTS a. Pest control company must give written notice to the LL and T regarding the pesticides to be used when servicing units.

  12. LANDLORD’S OBLIGATIONS • LL must respect the privacy and quiet enjoyment of the unit by the Tenant • LL must maintain a rental unit that is safe, secure and up to building code. • Implied Warranty of Habitability

  13. QUIET ENJOYMENT • Tenants have a right to privacy • Civil Code Section 1954 – LL can enter dwelling only for the following reasons: a. In an emergency b. When T has moved out or has abandoned the unit c. To make the necessary or agreed upon repairs, decoration, alterations or other improvements d. To show rental unit to prospective tenants, buyers, lenders or to provide entry to contractors or workers who are to perform work on the unit e. If a Court permits the LL to enter

  14. LANDLORD’S RIGHT TO ENTER Except in the case of an emergency or abandonment, LL must give written 24 hours notice to enter. CC §1954 • LL must give a 24 hours notice to enter dwelling in writing • If notice by mail – 6 days must be given • T and LL may agree orally to an entry as long as they both agree on the date and time • At the time of the entry, the LL or agent entering must leave written evidence in the unit that an entry occurred

  15. IMPLIED WARRANTY OF HABITABILITY • Habitable means: the rental unit is fit for occupation by human beings and that it substantially complies with state and local building and health codes that materially affect tenant's health and safety. Green v. Superior Court (1974) • The “Implied Warranty of Habitability” does NOT mean the rental unit has to be in perfect condition. • A landlord is responsible for making the rental unit habitable before renting it and during the term of the tenancy. • a. LL is not responsible for damages caused by T, T’s family, guests or pet(s).

  16. IMPLIED WARRANTY OF HABITABILITY • CIVIL CODE §1941.1 – LL IS OBLIGATED TO PROVIDE: 1. Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors; 2. plumbing facilities in good working order, including hot and cold running water, connected to a sewage disposal system, 3. gas facilities in good working order; 4. heating facilities in good working order; 5. an electric system, including lighting, wiring, and equipment, in good working order; 6. clean and sanitary buildings, grounds, and appurtenances, free from debris, filth, rubbish, garbage, rodents, and vermin; 7. adequate trash receptacles in good repair; and 8. floors, stairways, and railings in good repair

  17. LL has a reasonable time to correct any of these deficiencies. • Reasonable time may differ depending on the problem.

  18. TENANT’S OBLIGATIONS • CIVIL CODE §1941.2 - TENANT MUST: • Keep the premises “as clean and sanitary as the condition of the premises permits”; • Dispose of garbage and trash properly (unless the landlord has agreed to do this); • Use all electrical, gas, and plumbing fixtures properly and keep them as clean as their condition permits; • Keep any person on the premises with permission from willfully damaging the premises or the facilities; • Use each room only for the purpose for which it was intended; • Notify landlord of when dead bolt locks and window locks or security devices do not operate properly.

  19. BREACH OF IMPIED WARRANTY OF HABITABILITY • TENANT’S REMEDIES: 1. REPAIR AND DEDUCT 2. ABANDONMENT REMEDY 3. WITHHOLDING RENT

  20. REPAIR AND DEDUCT REMEDY(CIVIL CODE 1942) • REQUIREMENTS: • Defects must be serious and directly related to T’s health and safety; • The amount deducted cannot be over one month’s rent • The remedy cannot be used more than 2 times in a 12-month period; • T’s family, guests or pets must not have caused the repairs; • T must inform LL that repairs are needed; • T must give LL a reasonable amount of time to make the needed repairs; • If the LL does not make repairs, the T must inform LL that the Repair and Deduct remedy will be used if the repairs are not done in a reasonable time frame; • T deduct costs from rent

  21. ABANDONMENT REMEDY • REQUIREMENTS: • Defects must be serious and directly related to T’s health and safety; • T’s family, guests or pets must not have caused the repairs; • T must inform LL that repairs are needed; • T must give LL a reasonable amount of time to make the needed repairs; • If the LL does not make repairs, the T must inform L, in writing, of T’s reasons for moving; • T actually moves out

  22. WITHHOLDING RENT • REQUIREMENTS: • Defects must be serious and directly related to T’s health and safety – must be serious enough to make the unit uninhabitable • T’s family, guests or pets must not have caused the repairs; • T must inform LL that repairs are needed; • T must give LL a reasonable amount of time to make the needed repairs; • If the LL does not make repairs, the T can withhold rent until LL makes the necessary repairs • RISKS • LL may serve a Notice to Pay Rent or Quit or Notice to Terminate Tenancy

  23. HABITABILITY DEFENSE TO EVICTIONS • PROVE THE CONDITIONS ARE SUBSTANTIAL • EVIDENCE • Photos • Certified Agency Reports • Witnesses • NOTICE TO OWNER (knew or should have known) • T DID NOT DENY ACCESS • IF WIN - • Reduced Rent • Repairs Ordered

  24. RESPONSIBILITES OF THE TENANT • Pay rent on time • Comply with the provisions of the lease or rental agreement • Maintain the premises in a sanitary and safe condition • Repair anything damaged by the T, occupants, or guest(s) that is not due to normal wear and tear • Do not create a public nuisance or engage in disruptive or illegal behavior

  25. TERMINATING THE TENANCY • Notice to Terminate the Tenancy • Failure to Pay Rent • T is in violation of any provision of the lease or rental agreement • T materially damages the rental property a. T committed waste • T substantially interfered with the other tenants a. T commits a nuisance

  26. NOTICE TO TERMINATE TENANCY • Generally, LL can terminate a month-to-month tenancy with 30 Day Notice to Quit on the T • Notice does not have to state cause • Exception: If the property is subject to Rent Control, the notice must state an RSO just cause

  27. TYPES OF NOTICES TO TERMINATE • 90 Day Notice to Quit • Applicable to Section 8 Tenants • Exception: If Section 8 is subject to Rent Control - notice must state an RSO just cause • 30 Day Notice to Quit • Applicable if T lived in unit for less than 1 year • If property subject to Rent Control – notice must state an RSO just cause • 3 Day Notice to Quit • Applicable if T is former owner in post foreclosure

  28. NON – PAYMENT OF RENT • 3 Day Notice to Pay Rent or Quit • 3 days begins on the first day after service of the notice • If the 3rd day falls on a Saturday, Sunday or legal holiday – the three-day period will not expire until the following Monday or non-holiday • Notice must accurately state amount of rent that is due • Late charges is NOT rent unless stated in written agreement • Notice must conform to CCP 1161(2) • Must state the amount of rent due, list the name, address and telephone number of the person whom to pay rent to • If payment made in person – the usual days and hours the person is available to receive the rent payment

  29. TECHNICAL DEFENSES TO NONPAYMENT • OVERSTATES RENT OWED ( Notice can only demand rent) • demands a fee not provided for in the contract • demands some amount that is not rent • math error • demands rent for more than 1 year • failure to credit payment • PREMATURE NOTICE - Notice served before rent was due • CCP 1161(2) - Notice failed to identify: the amount of rent due, the name, address and phone number to whom rent shall be paid to

  30. AFFIRMATIVE DEFENSES TO NONPAYMENT • Tender within the notice period • Pattern of late acceptance • Agreement to accept rent after the notice expired • Illegal rent increase a. 60 Day Notice for rent increase over 10% b. 30 Day Notice for rent increase less than 10% • Landlord failed to inform tenant of change of ownership resulting in tenant paying the former owner

  31. VIOLATION OF THE LEASE OR RENTAL AGREEMENT • NOTICE TO PERFORM COVENANT OR QUIT a.k.a. NOTICE TO CURE OR QUIT • Demands that T correct the violation or leave the rental unit • NOTICE TO QUIT - NUISANCE • Demands that T leave the rental unit • NOTICE TO QUIT - WASTE • Demands that T leave the rental unit

  32. DEFENSES TO LEASE OR RENTAL AGREEMENT VIOLATIONS • 3 DAY CURE OR QUIT NOTICE • Is there a covenant? • Was there a breach? • Notice must be specific enough to allow T to know what to do to cure • Acceptance of rent with knowledge of alleged breach • Discrimination / Retaliation ( to motive only)

  33. DEFENSES TO LEASE OR RENTAL AGREEMENT VIOLATIONS • 3 DAY NOTICE TO QUIT – NUISANCE OR WASTE • Allegations do not amount to nuisance • Breach was curable • Acceptance of rent with knowledge of alleged breach • Discrimination / Retaliation ( to motive only)

  34. DEFENSES APPLICABLE TO ALL NOTICES • Complaint filed prematurely • Plaintiff is not the proper party • Acceptance of rent after the notice expired • Notice does not unequivocally demand possession • Non-service • Service of multiple notices

  35. THANK YOU

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