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If you own a residential property and rent it to someone else, you are a landlord. If you rent from someone who owns the property, you are a tenant. And if this takes place in the state of California, you are both subject to some of the most complex and nit-picky rules and regulations in the world. These laws have evolved over the past 150 years to preserve the rights of each of you, and to provide remedies when disagreements occur.
It is a legal minefield, and one that I avoid in my own practice.
However, it’s helpful to review some basic rules, because most landlord-tenant relationships can be good ones. Understanding some of the major issues can help both parties avoid conflict.
Rental or Lease Agreement
There should be a written agreement so both parties are clear on the terms of the rental or lease. Oral, non-written agreements may be legal for rental periods of less than a year, but you will have no proof of the terms of agreement in case issues arise. A rental may be for a specific time period, such as a week or month, and is determined by the rental payment date. The rental is renewed each time a payment is made. This interval also determines the advance notice time required for the landlord or tenant to end the tenancy.
A lease states the total number of months the lease will be in effect. A landlord cannot evict a tenant during the lease period except for very specific reasons such as damage to the property or failure to pay rent. And rent may not be increased, unless the agreement expressly allows for it. There should be a stated limit on how much and how often increases are permitted. A tenant must pay the agreed-upon rents, regardless of whether he/she wishes to remain in the property for the full lease period.
Conflict can occur when rental or lease agreements are not detailed or specific enough to cover certain issues that are likely to arise.
Landlords may charge security deposits, and may only use them for: Unpaid rent; Cleaning the rental unit when the tenant moves, but only to make the unit as clean as it was when the tenant first moved in; Repair of damages, other than normal wear and tear; and, cost of repairing or replacing furniture, furnishings, and other personal property (including keys), other than because of normal wear and tear, if the rental or lease agreement specifically provides for this.
A rental or lease agreement may never state that a security deposit is non-refundable.
In nearly all cases, within 21 calendar days after a tenant moves out, the landlord must send or personally deliver a full refund of the security deposit, or an itemized statement (including receipts) listing the amounts of any deductions from the deposit, and a refund of any amounts not deducted.
It is always wise for a tenant to request an inspection of the unit before moving out.
The tenant has a right to be present, and to go over any defects or conditions that might justify deductions from the security deposit. The tenant may (but can’t be required to) repair defects or correct conditions so as to avoid deductions from the deposit. Security deposits are one of the most contentious issues in landlord-tenant relations.
A landlord may be able to evict a tenant if a rental or lease agreement has been breached. The tenant must be given a written notice first – usually a 3-day, 30-day, 60-day or 90-day notice, depending on the terms of the original agreement or other legal factors.
A tenant must respond within a certain number of days, by filing an Answer, and serving it on the landlord. The filing fee of several hundred dollars might be waived if hardship can be proven to the court. Once filed, the landlord will request a trial date, which is likely to be within 20 days. The tenant and landlord will appear in court, and each will present agreements, letters, photos, building inspection reports, witnesses or any other facts that support their cases.
If the landlord wins a judgment, the court will return possession of the property to him or her, and the Sheriff may be ordered to serve a Notice to Vacate the property on the tenant. This gives the tenant 5 days to move out.
If the tenant wins, the court will issue a judgment with the terms of any continued occupancy of the property or other issues that were decided, and the landlord may be ordered to comply.
This article is part of an ongoing series of articles pertaining to legal issues relevant to the LGBT community, and is intended for general information purposes only – not legal advice. Christopher Heritage is an attorney in Palm Springs, and San Diego, CA, who focuses on LGBT estate planning, domestic partnerships, same-sex marriage, probate, trust administration, and bankruptcy. He welcomes questions and comments, and can be contacted at (760) 325.2020, or by email: firstname.lastname@example.org.
This article was originally published HERE.