Fair Housing Council

of Riverside County, Inc.


Beginning the Process and Establishing the Tenancy
Type of agreements - The most common type of rental agreement is month-to-month tenancy. This type of periodic tenancy gives both the owner and the renter the right to terminate the agreement upon the giving of a thirty day written notice. Under the month-to-month tenancy either parties may terminate without cause so long as the thirty day notice is given.

Other periodic types of rentals include: tenancy for years (a specified period of time): tenancy at will, and shared rental. All rental agreements should be in writing and should cover provisions, if any, for:

The best policy is to produce written agreements which are dated and executed by the parties to be charged (owner-manager and each adult tenant). The tenants should be provided with a copy of the agreement at the beginning of the tenancy so as to facilitate compliance with such agreement.

Even where rental agreements are not in writing, a verbal contract may be enforceable. Where the two parties have in fact been operating in a manner sufficient to establish a landlord-tenant relationship (i.e. possession of the unit by the tenant and regular periodic payment of rents), the courts are likely to hold that a month-to-month tenancy exists.

If the owner-manager wishes to change any term of a month-to-month rental agreement, such change may be made with the giving of a thirty day notice of the change.

When rental property is sold and comes under new ownership and management, all prior agreements are still in effect until such time as tenants have been properly and timely (thirty day's) notified of any change in terms of agreement.

Simple agreement forms may be obtained from most office supply stores. Where special interest or more complicated agreements are contemplated it is best to consult with an attorney.

Advertising For, Screening and Selecting Tenants - This area of property owner and management responsibility is fraught with legal rules or requirements. It is here that strict compliance with operative laws is advised so as to minimize problems which potentially will grow into legal and/or monetary liability.

Advertising that indicates a preference, limitation or discrimination on the basis of race, color, religion, sex, national origin, familial status(presence of children), or handicap is in violation of established laws.

Prohibited activities are three major types:

  1. advertisement that contains a word, phrase or other indication of a discriminatory preference;
  2. selective use of the media, logo, or human models to indicate a discriminatory preference or
  3. using any other miscellaneous method to indicate that dwellings are available or not available to a particular group based upon race, color, national origin, sex, religion, disability (physical or mental) or familial status.
Screening for the best qualified renter is a process which should be conducted under the most precise business operations possible. An owner of property has every right to be selective in choosing the person/family to whom the unit will be rented. The selection process must however, be in accordance with both federal and state law.

Qualifying prospective tenants who will later become tenants or persons whose names will be placed on the waiting list should be done while using the same rental criteria (i.e. income requirements; deposits, etc.) for all. The prospective tenant's ability to pay the rent; ability to follow the reasonable rules of tenancy and the ability to respect the renter rights of other tenants should be the only criteria applied to this process.

Criteria recognized as legitimate screening tools are checks and references regarding:

Occupancy Standards dictate the number of persons who may reside in a particular unit. Where used as a screening tool such standards should be used in conjunction with those used by the Department of Housing and Urban Development and the State of California. At no time may such standards be utilized as a means of circumventing federal fair housing prohibitions against familial status discrimination. Concerns regarding sleeping arrangements have no relevance in this process. The Department of Housing and Urban Development (HUD) current formula for occupancy guidelines is two per bedroom. State guidelines allow two per bedroom plus one.

Housing the Senior-Elderly, Disabled and Children
The Screening Process Continued: Senior Exemptions under the fair housing laws allow for the selection of "seniors only" in particular housing complexes. The Fair Housing Act exempts "housing for older persons" from its prohibitions against "familial status" (presence of children) discrimination. The definition of "housing for older persons" includes three separate categories of housing:

Persons with disability are protected under the Fair Housing Act and the Americans with Disabilities Act, particularly under the 1988 Fair Housing Amendments Act. Persons with disabilities must not be denied a rental unit solely on the basis of their disability or because the housing provider may be required to make certain accommodations or alterations based upon the disability.

Disability is defined very broadly and includes physical and mental handicaps as with: a physical or mental impairment that substantially limits one or more of the individual's major life activities; a record of such impairment or being regarded as having such impairment. The Act also covers HIV-AIDS population and persons who are currently recovering from drug or alcohol addiction. The same application, security deposit and qualifying standards should be utilized for the person with a disability as those which are used for everyone.

Accessibility to and within the rental unit is the crux of the legal requirements in this area. Accessibility to all common areas, walkways, and parking, is required where appropriate. Common areas must accommodate wheel chairs and give sufficient space to maneuver. Service animals, e.g. guide dogs should be allowed where vital to full enjoyment of the unit by the disabled person. Accessible light switches, cabinets, stoves and ovens, grab bars in tubs or showers are examples of accessibility needs.

Modifications and alterations, where reasonable, must be allowed in order to facilitate the disabled tenant's full enjoyment of the rental unit. Such alterations or modifications are made at the expense of the tenant. The tenant is also required to restore the property to its original state at the end of the tenancy.

Familial Status (presence of children) discrimination is prohibited under the Fair Housing Amendment Act of 1988. Made effective on March 12, 1989, this act defines "familial status" as one or more individuals under the age of 18 living with a parent, a person having legal custody of such individual(s) or the designee of such person or legal guardian. Also included is any person who is pregnant or who is about to secure legal custody of someone under the age of 18.

The Selection Process - The selection process is that phase of the decision making which is most influenced by law. It is the final choice among various applicants that will decide who will or will not reside in the unit. Since the application process is the most important tool for screening and securing good tenants, emphasis should be placed upon completing this process with the required conformity with federal and state legal standards.

The application may not inquire as to: race; color; national origin; religion; sex; handicap or familial status (presence of children); marital status; or sexual preference. The application may inquire as to: personal references; driver's license or other ID; present and past employers; vehicle information; or any other credit related matter.

The final selection should be made after the application of each applicant has been reviewed under the same information and selection process. The disqualification of any applicant solely for the reason of their membership in a protected class is actionable under the law.

Finalizing the Rental-Lease Contract
Showing the unit has undoubtedly already occurred prior to finalizing the agreement. As a manager when you have a vacancy that has been advertised, it is your responsibility to give accurate information to each applicant regarding vacancies and other rental information. Showing the unit is typically a part of this process.

The habitability of the unit is a prerequisite to the finalization of the lease agreement and the move in by the tenant. The unit should be ready for occupancy. This means that it should be clean, meeting all of the building code standards as applicable (i.e., plumbing, electrical and foundational elements up to standard), and having no other encumbrances which prevent the tenants from taking possession.

The move-in walk through is an important part of the procedure and will prevent later problems in the areas of repairs and deposits. This is the reason that a walk through should take place before the tenant is given final possession of the unit.

A simple column check list may be used to note the condition of the unit and may be used to note the condition of the unit and other features therein, (i.e. carpet, drapes, stove, refrigerator, etc.). Upon termination of the tenancy this check list serves as an invaluable tool in assessing damages, or noting the matters which were already in need of repair.

Deposits are allowable and commonly required in connection with the rental property. Whether a deposit is called a cleaning, security, or advance rent fee, California law defines it as a deposit. California Civil Code provides for the return refund of the deposit within twenty-one days of the tenant's move out. Under this provision the deposit for an unfurnished unit may be twice the amount of the monthly rent and for a furnished unit three times the amount of the rent. At this time there is no provision under the law which requires the payment of accrued interest to the tenant along with the security deposit. California Civil Code, herein (CCC) 1950.5(e).

Retention of the security deposit by the owner-manager is allowable under the California Civil Code for:

  1. reasonable cleaning;
  2. repairs for damages caused by the tenant and
  3. unpaid rent.
Reasonable "wear and tear" allowances should be considered when making these decisions. CCC 1950.5 (a).

Records of the management plays a very important part of managing property and should be accurate. It is recommended that a file be set up on each rental unit and its tenants. This record should contain copies of the rental application, rental agreement, notices, etc., along with documents on repairs and or other problems. This record provides a history and documentation on file.

Giving possession of the unit is the final step in the selection process. The tenant should be assisted to gain actual possession of the unit. From this point the rights and obligations of the parties have been formed and begin to run.

Maintaining the Tenancy - Green vs. Superior Court (1974)111 Cal Reptr 7O4
Request for and duty to repair are two very important facets of the rental agreement. A tenant may request repairs either verbally or in writing depending upon the nature of the needed repair. It is recommended that tenant's be encouraged to put all requests for repairs in writing.

Preventive maintenance will insure fewer repair problems. Failure to respond to legitimate request for repairs may give rise to the tenant's legal rights to use either the "deduct and repair" or "rent withhold" remedy as provided under the California Civil Code. Local code enforcement department may also be invoked for assistance. CCC 1942

A reasonable response time to request for repairs will be determined by the nature of the problem(s). Those problem areas going to the heart of the "habitability" of the unit quite naturally require prompt response. Example of this type of repair: plumbing; heating; no hot/cold running water; structural defects; and others which touch or concern the issues of safe and sanitary units.

Amenities, Rules, and Policies of the Tenancy
Written rules and policies that spell out clearly "as" possible all governing rules, requirements and policies provide for the best business relationship and helps to set the level of expectation of all parties who are governed by them.

Financial (rent) Policies should indicate whether or not grace periods will be extended for late rent payments. Charges for late payments should be spelled out preferably in the rental agreement. The tenant should be advised as to the type, place and time frame for payment of rents.

Pets, the size, type and number of which are allowed, whether there is an additional deposit required, and other responsibilities which go hand in hand with the right to have pets in an area should be specified with definiteness. Where an animal is relied upon by a disabled person (i.e. a seeing eye dog), reasonable accommodation must be made in allowing the applicant to rent with the dog.

Swimming pools, jacuzzies, recreational rooms and laundry rooms have become very popular as the kind of amenities and privileges available to tenants. It is important to provide the tenant with copies of any rules or regulations which pertain to these privileges. It is equally important that all rules are applied in an equitable manner for all tenants. Special rules for children are not allowed except those which govern the use of the swimming pool by very young children who must be accompanied by an adult.

Where parking is made available there should be clear understandable policies respecting; designated parking areas and tow away rules; guest parking privileges; allowed or prohibited activities in parking areas and any others which are relevant.

Game and meeting room use should also be governed by clearly spelled out and posted rules and regulations. It is also recommended that every tenant be provided a copy of same.

Rights of Owner/Manager to Enter
Certain guest rules govern hotels, inns and the like where the management retains a key and provides certain other services such as daily cleaning. Here the right of entry is only limited to reasonableness.

A periodic rental on the other hand would require a different consideration for purposes of entering the unit. Here the tenant has an absolute right to possession and privacy. Possessory and privacy rights must be counterbalanced by the right of the owner and manager to enter the unit.

Upon the giving of reasonable notice (usually 24 hours if not an emergency) an owner/manager may enter the premises for the purposes of an emergency; inspection, repairs, alterations and improvements which the tenant has agreed upon; and when the unit has been abandoned. The owner/manager may also enter following the adjudication of an unlawful detainer, the results of which by court order gives the owner the right of possession. CCC Sec. 1954

Requirements of Written Notice
Proper written notice is a prerequisite action for certain identified remedies under landlord-tenant law. Without such written notice, the owner/manager is not able to initiate certain legal action (i.e. eviction or change in terms of agreement) which otherwise she/he has the right to assert.

A three day notice is required in such cases where the tenant has not paid the rent or is in violation of the rules or responsibilities under the agreement. The notice must state the reason why the tenant is being asked to "QUIT" the premises. The tenant must also be given a three day period in which to correct the breach of the agreement. If such cure is performed by the tenant, the three day notice is invalidated and has no future effect. If for instance, the tenant offers the payment of rent during this three day period, the owner/manager must accept said payment and void the three day notice. CCP Sec. 1161

A thirty day notice is required in case of a month-to-month tenancy where the owner wants to regain possession of the unit and wants the tenant to vacate. The owner does not have to give a reason for the notice to vacate unless the housing unit is a federally or state subsidized unit. CCP Sec. 1161

When an apartment is converted into a condominium a 180 day notice is required. The notice can be given at any time during the conversion. The present tenant must be given a 90-day option to buy. Government Code 66427.1

Terminating the Tenancy
The termination of a tenancy may be legally commenced by either party, (owner or tenant) without cause or statement of reason by giving of proper notice. Under a typical month-to-month tenancy, the manager/owner or tenant needs only to give a proper written thirty day notice.

Other terminations occur upon the expiration of a lease for years. The expiration of such lease is automatic. A renewal of such lease may be negotiated between the parties or a month-to-month tenancy will result if the tenant remains in possession.

A move-out and walk through of the unit should be completed before the tenant vacates the unit. This inspection is vital and important to the resolution of the refund and reimbursement of security and/or cleaning deposits. As earlier stated, such monies must be returned to the tenant twenty-one days after the tenant vacates the unit. The owner is entitled to retain such monies to cover cost only for reasonable (non-wear and tear) cleaning, tenant-caused unit damages and non-payment of rent. A "walk through" is an opportunity to have the parties come to a mutual conclusion as to what is to be deducted, if anything, from the deposits. CCC 1950.5

For termination of tenancy in the case of non-payment of rent or the failure to cure a breach the owner/manager must proceed through the appropriate court process. Any self-help actions such as lock-out, shut off of utilities or otherwise interfering with the possessory right of the tenant is in violation of law and may result in litigation and a punitive damages award. CCC Sec. 789.3 Jordon v Talbot (1961) 12 Cal. Rept. 488

The unlawful detainer is the legal court action which must be filed in order to evict a tenant who has not paid or cured a breach under the agreement. Usually the municipal court is the court where action is commenced. An attorney should be consulted.

The unlawful detainer must be served upon the tenant by someone other than the owner/manager. After the complaint has been served the tenant has five days (including weekends) to file an answer to the complaint and/or raise a defense to the lawsuit. It is strongly recommended that tenant seeks an attorney for assistance.

Typical tenant defense to unlawful detainer are: failure of the owner to effect requested repairs which render the premise substandard or unhabitable; an incorrect amount of money (rent) is being demanded in the complaint; other allegations in the complaint are false; the eviction is retaliatory (i.e. the owner is retaliating because the tenant has complained about unhabitable conditions of the unit in accordance with her/his legal right to do so); or waiver has occurred.

A tenant is protected against retaliatory eviction for a period of 180 days and may not be evicted during this period of time without cause. Violation of this area of law may result in a tenant lawsuit against an owner and award of punitive damages from $100 to $1000. Evictions which are based upon the tenants exercise of other legal rights including membership in a tenant's rights organization are illegal. In these cases, there is no 180 day limit to the prohibition against them.

A successful unlawful detainer will result in judgement being rendered by the court in the owner's favor. The owner will be granted a "Judgement for Possession" by the court. Only the Sheriff's Department may assist the owner to regain possession of the unit by posting a "notice to vacate" within five days or be removed by the Sheriff.

Post-Termination Management
Abandonment is the issue when the tenant has moved without taking his/her personal property. The owner must give the tenant 15 days during which to claim said property if the Marshall/Sheriff did the move out. If the tenant moved out voluntarily before the Marshall's lockout, the landlord must mail a Notice of Right to Reclaim Abandoned Property to the tenant's last known address. In this case the tenant must be allowed eighteen days to claim the property. The property must be stored in a safe place but may be removed from the rental unit. If the property is worth less than $300, after the waiting period, the landlord may keep the property, sell it or otherwise dispose of it.

If property is worth in excess of $300 and is not claimed by the tenant, the owner may sell the items at a public auction after advertisement in a newspaper of general circulation the date and time of the sale. The ad must be placed once a week for two consecutive weeks. The tenant is entitled to the proceeds of the sale after the deduction by the owner of reasonable cost for advertisement, storage and other allowable expenses owed. The owner may not hold the property to force payment of rent owed.

Guidelines for Tenants - "Know the Signs and Words of Discrimination"

A prospective tenant can minimize the chances of being discriminated against and enhance an investigation into discriminatory activity by:

Housing discrimination can occur on many levels. Despite the federal and state laws and local policies which support fair housing, the ugly face of discrimination continues to show its face. It has been noted, that families with children and people of color are the ones to be victimized. Many of these cases go unreported because of the subtlety and difficulty in the detection of discrimination.

Tenants and future home buyers, should be aware that discrimination comes in different forms. The following are examples:

For additional information call 1-800-655-1812 or visit one of our conveniently located offices where walk-in services are available.

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Copyright, 1998, Fair Housing Council of Riverside County, Inc.
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