Can I terminate the lease and get my deposit back if I have not even moved in?
Full Question:
Answer:
You should carefully review your lease agreement to determine yours and your landlord’s rights and obligations regarding the rental property at possession, termination of the lease agreement and payment and return of required deposits. Because your lease is not set to take effect until the 30th of this month, your landlord may technically have until that time to meet his or her obligation to supply possession of the premises as agreed to in the lease, unless the lease agreement states otherwise.
A landlord is generally obligated to supply possession of the premises as agreed in the lease. The premises must meet minimum standards of habitability including compliance with applicable building codes. Weatherizing, locks, running water, working plumbing, heating and cooling, pest control, and other basics must be in place. In California, if the property is not livable (through no fault of your own), you may be able to move out. You may not have to pay rent after you move, even though you have a lease. By law, for a place to be unlivable or "untenantable," the problem must be substantial and may include problems with waterproofing and weatherproofing; plumbing; running water; heat; electrical lighting; unclean grounds and building; roaches and rodents; garbage; or floors, stairs and railings that are in disrepair.
Security deposits may be demanded by landlord at the time of the lease to ensure partial or total coverage of expenses if tenant leaves behind damage, unpaid rent, or leave the premises in an unclean condition after the termination or expiration of the lease. Typically the amount of the security deposit is capped by statute at a maximum amount such as one or two month's rent. Procedures concerning security deposits vary widely from state to state, with a sizable minority of states requiring placement in a separate, interest bearing bank account with interest being periodically paid out to tenants. A landlord may retain a portion of the security deposit sufficient to repair damages (other than reasonable wear and tear), clean and account for unpaid rent. The remainder must be mailed to the tenant with documentation of the deductions. A tenant must provide his forwarding address, and there is a limit on the obligation of the landlord to retain the security deposit when unable to reach the tenant by mail. Suit may be brought by the tenant for failure of the landlord to fulfill the statutory obligations, but damages are normally capped.
The following are California statutes:
§ 1941 Civ.
Section Nineteen Hundred and Forty-one. The lessor of a
building intended for the occupation of human beings must, in the
absence of an agreement to the contrary, put it into a condition fit
for such occupation, and repair all subsequent dilapidations thereof,
which render it untenantable, except such as are mentioned in
section nineteen hundred and twenty-nine.
§ 1941.1 Civ.
A dwelling shall be deemed untenantable for purposes of Section 1941 if
it substantially lacks any of the following affirmative standard
characteristics or is a residential unit described in Section 17920.3 or
17920.10 of the Health and Safety Code:
(a) Effective waterproofing and weather protection of roof and exterior
walls, including unbroken windows and doors.
(b) Plumbing or gas facilities that conformed to applicable law in
effect at the time of installation, maintained in good working order.
(c) A water supply approved under applicable law that is under the
control of the tenant, capable of producing hot and cold running water,
or a system that is under the control of the landlord, that produces hot
and cold running water, furnished to appropriate fixtures, and connected
to a sewage disposal system approved under applicable law.
(d) Heating facilities that conformed with applicable law at the time
of installation, maintained in good working order.
(e) Electrical lighting, with wiring and electrical equipment that
conformed with applicable law at the time of installation, maintained in
good working order.
(f) Building, grounds, and appurtenances at the time of the
commencement of the lease or rental agreement, and all areas under
control of the landlord, kept in every part clean, sanitary, and free
from all accumulations of debris, filth, rubbish, garbage, rodents, and
vermin.
(g) An adequate number of appropriate receptacles for garbage and
rubbish, in clean condition and good repair at the time of the
commencement of the lease or rental agreement, with the landlord
providing appropriate serviceable receptacles thereafter and being
responsible for the clean condition and good repair of the receptacles
under his or her control.
(h) Floors, stairways, and railings maintained in good repair.
(i) A locking mail receptacle for each residential unit in a
residential hotel, as required by Section 17958.3 of the Health and
Safety Code. This subdivision shall become operative on July 1, 2008
§ 1942 Civ.
(a) If within a reasonable time after written or oral notice to the
landlord or his agent, as defined in subdivision (a) of Section 1962,
of dilapidations rendering the premises untenantable which the landlord
ought to repair, the landlord neglects to do so, the tenant may repair
the same himself where the cost of such repairs does not require an
expenditure more than one month's rent of the premises and deduct the
expenses of such repairs from the rent when due, or the tenant may vacate
the premises, in which case the tenant shall be discharged from further
payment of rent, or performance of other conditions as of the date
of vacating the premises. This remedy shall not be available to the tenant
more than twice in any 12-month period.
(b) For the purposes of this section, if a tenant acts to repair and
deduct after the 30th day following notice, he is presumed to have acted
after a reasonable time. The presumption established by this
subdivision is a rebuttable presumption affecting the burden of producing evidence
and shall not be construed to prevent a tenant from repairing and
deducting after a shorter notice if all the circumstances require shorter
notice.
(c) The tenant's remedy under subdivision (a) shall not be available if
the condition was caused by the violation of Section 1929 or
1941.2
(d) The remedy provided by this section is in addition to any other
remedy provided by this chapter, the rental agreement, or other
applicable statutory or common law.
§ 1942.1 Civ.
Any agreement by a lessee of a dwelling waiving or modifying his rights
under Section 1941 or 1942 shall be void as contrary to public
policy with respect to any condition which renders the premises
untenantable, except that the lessor and the lessee may agree that the
lessee shall undertake to improve, repair or maintain all or stipulated
portions of the dwelling as part of the consideration for rental.
The lessor and lessee may, if an agreement is in writing, set forth the
provisions of Sections 1941 to 1942.1, inclusive, and provide that any
controversy relating to a condition of the premises claimed to make them
untenantable may by application of either party be submitted to
arbitration, pursuant to the provisions of Title 9 (commencing with
Section 1280), Part 3 of the Code of Civil
Procedure, and that the costs of such arbitration shall be apportioned
by the arbitrator between the parties.
§ 1942.4 Civ.
(a) A landlord of a dwelling may not demand rent, collect rent, issue a
notice of a rent increase, or issue a three-day notice to pay rent
or quit pursuant to subdivision (2) of Section 1161 of the
Code of Civil Procedure, if all of the following conditions exist prior to the
landlord's demand or notice:
(1) The dwelling substantially lacks any of the affirmative standard
characteristics listed in Section 1941.1 or violates
Section 17920.10 of the Health and Safety Code, or is deemed
and declared substandard as set forth in
Section 17920.3 of the Health and Safety Code because
conditions listed in that section exist to an extent that endangers the
life, limb, health, property, safety, or welfare of the public or the
occupants of the dwelling.
(2) A public officer or employee who is responsible for the enforcement
of any housing law, after inspecting the premises, has notified the
landlord or the landlord's agent in writing of his or her obligations to
abate the nuisance or repair the substandard conditions.
(3) The conditions have existed and have not been abated 35 days beyond
the date of service of the notice specified in paragraph (2) and the
delay is without good cause. For purposes of this subdivision, service
shall be complete at the time of deposit in the United States mail.
(4) The conditions were not caused by an act or omission of the tenant
or lessee in violation of Section 1929 or 1941.2.
(b)
(1) A landlord who violates this section is liable to the tenant
or lessee for the actual damages sustained by the tenant or lessee and
special damages of not less than one hundred dollars ($100) and not more
than five thousand dollars ($5,000).
(2) The prevailing party shall be entitled to recovery of reasonable
attorney's fees and costs of the suit in an amount fixed by the court.
(c) Any court that awards damages under this section may also order the
landlord to abate any nuisance at the rental dwelling and to repair any
substandard conditions of the rental dwelling, as defined in
Section 1941.1, which significantly or materially affect the health or safety
of the occupants of the rental dwelling and are uncorrected. If the court
orders repairs or corrections, or both, the court's jurisdiction
continues over the matter for the purpose of ensuring compliance.
(d) The tenant or lessee shall be under no obligation to undertake any
other remedy prior to exercising his or her rights under this section.
(e) Any action under this section may be maintained in small claims
court if the claim does not exceed the jurisdictional limit of that
court.
(f) The remedy provided by this section may be utilized in addition to
any other remedy provided by this chapter, the rental agreement, lease,
or other applicable statutory or common law. Nothing in this
section shall require any landlord to comply with this section if he or she
pursues his or her rights pursuant to Chapter 12.75 (commencing with
Section 7060) of Division 7 of Title 1 of the Government Code.
§ 1942.5 Civ.
(a) If the lessor retaliates against the lessee because of the exercise
by the lessee of his rights under this chapter or because of his
complaint to an appropriate agency as to tenantability of a dwelling, and
if the lessee of a dwelling is not in default as to the payment of his
rent, the lessor may not recover possession of a dwelling in any action
or proceeding, cause the lessee to quit involuntarily, increase the
rent, or decrease any services within 180 days of any of the following:
(1) After the date upon which the lessee, in good faith, has given
notice pursuant to Section 1942, or has made an oral complaint to the
lessor regarding tenantability.
(2) After the date upon which the lessee, in good faith, has filed a
written complaint, or an oral complaint which is registered or otherwise
recorded in writing, with an appropriate agency, of which the lessor has
notice, for the purpose of obtaining correction of a condition relating
to tenantability.
(3) After the date of an inspection or issuance of a citation,
resulting from a complaint described in paragraph (2) of which the lessor
did not have notice.
(4) After the filing of appropriate documents commencing a judicial
or arbitration proceeding involving the issue of tenantability.
(5) After entry of judgment or the signing of an arbitration award, if
any, when in the judicial proceeding or arbitration the issue
of tenantability is determined adversely to the lessor.
In each instance, the 180-day period shall run from the latest
applicable date referred to in paragraphs (1) to (5), inclusive.
(b) A lessee may not invoke subdivision (a) more than once in any
12-month period.
(c) It is unlawful for a lessor to increase rent, decrease services,
cause a lessee to quit involuntarily, bring an action to recover
possession, or threaten to do any of those acts, for the purpose
of retaliating against the lessee because he or she has lawfully organized
or participated in a lessees' association or an organization advocating
lessees' rights or has lawfully and peaceably exercised any rights under
the law. In an action brought by or against the lessee pursuant to this
subdivision, the lessee shall bear the burden of producing evidence that
the lessor's conduct was, in fact, retaliatory.
(d) Nothing in this section shall be construed as limiting in any way
the exercise by the lessor of his or her rights under any lease
or agreement or any law pertaining to the hiring of property or his or her
right to do any of the acts described in subdivision (a) or (c) for any
lawful cause. Any waiver by a lessee of his or her rights under this
section is void as contrary to public policy.
(e) Notwithstanding subdivisions (a) to (d), inclusive, a lessor may
recover possession of a dwelling and do any of the other acts described
in subdivision (a) within the period or periods prescribed therein,
or within subdivision (c), if the notice of termination, rent increase,
or other act, and any pleading or statement of issues in an arbitration, if
any, states the ground upon which the lessor, in good faith, seeks to
recover possession, increase rent, or do any of the other acts described
in subdivision (a) or (c). If the statement is controverted, the lessor
shall establish its truth at the trial or other hearing.
(f) Any lessor or agent of a lessor who violates this section shall be
liable to the lessee in a civil action for all of the following:
(1) The actual damages sustained by the lessee.
(2) Punitive damages in an amount of not less than one hundred dollars
($100) nor more than two thousand dollars ($2,000) for each retaliatory
act where the lessor or agent has been guilty of fraud, oppression,
or malice with respect to that act.
(g) In any action brought for damages for retaliatory eviction, the.
court shall award reasonable attorney's fees to the prevailing party if
either party requests attorney's fee. upon the initiation of the action
(h) The remedies provided by this section shall be in addition to any
other remedies provided by statutory or decisional law.
§ 1950.5 Civ.
(a) This section applies to security for a rental agreement for
residential property that is used as the dwelling of the tenant.
(b) As used in this section, "security" means any payment, fee, deposit
or charge, including, but not limited to, any payment, fee, deposit,
or charge, except as provided in Section 1950.6, that is imposed at the
beginning of the tenancy to be used to reimburse the landlord for costs
associated with processing a new tenant or that is imposed as an advance
payment of rent, used or to be used for any purpose, including, 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 termination of the tenancy
necessary to return the unit to the same level of cleanliness it was in
at the inception of the tenancy. The amendments to this paragraph enacted
by the act adding this sentence shall apply only to tenancies for which
the tenant's right to occupy begins after January 1, 2003.
(4) To remedy future defaults by the tenant in any obligation under the
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.
(c) A landlord may not demand or receive security, however
denominated, in an amount or value in excess of an amount equal to two
months' rent, in the case of unfurnished residential property, and an
amount equal to three months' rent, in the case of furnished residential
property, in addition to any rent for the first month paid on or before
initial occupancy.
This subdivision does not prohibit an advance payment of not less than
six months' rent if the term of the lease is six months or longer.
This subdivision does not preclude a landlord and a tenant from
entering into a mutual agreement for the landlord, at the request of the
tenant and for a specified fee or charge, to make structural,
decorative, furnishing, or other similar alterations, if the alterations
are other than cleaning or repairing for which the landlord may charge
the previous tenant as provided by subdivision (e).
(d) Any security shall be held by the landlord for the tenant who is
party to the lease or agreement. The claim of a tenant to the security
shall be prior to the claim of any creditor of the landlord.
(e) The landlord may claim of the security only those amounts as are
reasonably necessary for the purposes specified in subdivision (b). The
landlord may not assert a claim against the tenant or the security for
damages to the premises or any defective conditions that preexisted the
tenancy, for ordinary wear and tear or the effects thereof, whether the
wear and tear preexisted the tenancy or occurred during the tenancy,
or for the cumulative effects of ordinary wear and tear occurring during any
one or more tenancies.
(f)
(1) Within a reasonable time after notification of either party's
intention to terminate the tenancy, or before the end of the lease term,
the landlord shall notify the tenant in writing of his or her option to
request an initial inspection and of his or her right to be present at
the inspection. The requirements of this subdivision do not apply when
the tenancy is terminated pursuant to subdivision (2), (3), or (4)
of Section 1161 of the Code of Civil Procedure. At a reasonable time, but no
earlier than two weeks before the termination or the end of lease date,
the landlord, or an agent of the landlord, shall, upon the request of the
tenant, make an initial inspection of the premises prior to any final
inspection the landlord makes after the tenant has vacated the premises.
The purpose of the initial inspection shall be to allow the tenant an
opportunity to remedy identified deficiencies, in a manner consistent with
the rights and obligations of the parties under the rental agreement, in
order to avoid deductions from the security. If a tenant chooses not to
request an initial inspection, the duties of the landlord under this
subdivision are discharged. If an inspection is requested, the parties
shall attempt to schedule the inspection at a mutually acceptable date
and time. The landlord shall give at least 48 hours' prior written notice
of the date and time of the inspection if either a mutual time is agreed
upon, or if a mutually agreed time cannot be scheduled but the tenant
still wishes an inspection. The tenant and landlord may agree to forgo
the 48-hour prior written notice by both signing a written waiver. The
landlord shall proceed with the inspection whether the tenant is present
or not, unless the tenant previously withdrew his or her request for the
inspection.
(2) Based on the inspection, the landlord shall give the tenant an
itemized statement specifying repairs or cleaning that are proposed to be
the basis of any deductions from the security the landlord intends to
make pursuant to paragraphs (1) to (4), inclusive of subdivision (b).
This statement shall also include the texts of paragraphs (1) to (4),
inclusive, of subdivision (b). The statement shall be given to the
tenant, if the tenant is present for the inspection, or shall be left
inside the premises.
(3) The tenant shall have the opportunity during the period following
the initial inspection until termination of the tenancy to remedy
identified deficiencies, in a manner consistent with the rights and
obligations of the parties under the rental agreement, in order to avoid
deductions from the security.
(4) Nothing in this subdivision shall prevent a landlord from using the
security for deductions itemized in the statement provided for in
paragraph (2) that were not cured by the tenant so long as the deductions
are for damages authorized by this section.
(5) Nothing in this subdivision shall prevent a landlord from using the
security for any purpose specified in paragraphs (1) to (4), inclusive,
of subdivision (b) that occurs between completion of the initial
inspection and termination of the tenancy or was not identified during
the initial inspection due to the presence of a tenant's possessions.
(g)
(1) No later than 21 calendar days after the tenant has vacated the
premises, but not earlier than the time that either the landlord or the
tenant provides a notice to terminate the tenancy under Section 1946 or
1946.1, Section 1161 of the Code of Civil Procedure, or not earlier than
60 calendar days prior to the expiration of a fixed-term lease, the
landlord shall furnish the tenant, by personal delivery or by first-class
mail, postage prepaid, a copy of an itemized statement indicating the
basis for, and the amount of, any security received and the disposition
of the security and shall return any remaining portion of the security to
the tenant.
(2) Along with the itemized statement, the landlord shall also include
copies of documents showing charges incurred and deducted by the landlord
to repair or clean the premises, as follows:
(A) If the landlord or landlord's employee did the work, the itemized
statement shall reasonably describe the work performed. The itemized
statement shall include the time spent and the reasonable hourly rate
charged.
(B) If the landlord or landlord's employee did not do the work, the
landlord shall provide the tenant a copy of the bill, invoice, or receipt
supplied by the person or entity performing the work. The itemized
statement shall provide the tenant with the name, address, and telephone
number of the person or entity, if the bill, invoice, or receipt does not
include that information.
(C) If a deduction is made for materials or supplies, the landlord
shall provide a copy of the bill, invoice, or receipt. If a particular
material or supply item is purchased by the landlord on an ongoing
basis, the landlord may document the cost of the item by providing a copy
of a bill, invoice, receipt, vendor price list, or other vendor document
that reasonably documents the cost of the item used in the repair
or cleaning of the unit.
(3) If a repair to be done by the landlord or the landlord's employee
cannot reasonably be completed within 21 calendar days after the tenant
has vacated the premises, or if the documents from a person or entity
providing services, materials, or supplies are not in the landlord's
possession within 21 calendar days after the tenant has vacated the
premises, the landlord may deduct the amount of a good faith estimate
of the charges that will be incurred and provide that estimate with the
itemized statement. If the reason for the estimate is because the
documents from a person or entity providing services, materials,
or supplies are not in the landlord's possession, the itemized statement
shall include the name, address, and telephone number of the person
or entity. Within 14 calendar days of completing the repair or receiving the
documentation, the landlord shall complete the requirements in
paragraphs (1) and (2) in the manner specified.
(4) The landlord need not comply with paragraph (2) or (3) if either
of the following apply:
(A) The deductions for repairs and cleaning together do not exceed one
hundred twenty-five dollars ($125).
(B) The tenant waived the rights specified in paragraphs (2) and (3).
The waiver shall only be effective if it is signed by the tenant at the
same time or after a notice to terminate a tenancy under Section 1946 or
1946.1 has been given, a notice under Section 1161 of the Code of Civil
Procedure has been given, or no earlier than 60 calendar days prior to
the expiration of a fixed-term lease. The waiver shall substantially
include the text of paragraph (2).
(5) Notwithstanding paragraph (4), the landlord shall comply with
paragraphs (2) and (3) when a tenant makes a request for documentation
within 14 calendar days after receiving the itemized statement specified
in paragraph (1). The landlord shall comply within 14 calendar days after
receiving the request from the tenant.
(6) Any mailings to the tenant pursuant to this subdivision shall be
sent to the address provided by the tenant. If the tenant does not
provide an address, mailings pursuant to this subdivision shall be sent to
the unit that has been vacated.
(h) Upon termination of the landlord's interest in the premises,
whether by sale, assignment, death, appointment of receiver
or otherwise, the landlord or the landlord's agent shall, within a
reasonable time, do one of the following acts, either of which shall
relieve the landlord of further liability with respect to the security
held:
(1) Transfer the portion of the security remaining after any lawful
deductions made under subdivision (e) to the landlord's successor in
interest. The landlord shall thereafter notify the tenant by personal
delivery or by first-class mail, postage prepaid, of the transfer, of any
claims made against the security, of the amount of the security
deposited, and of the names of the successors in interest, their
address, and their telephone number. If the notice to the tenant is made
by personal delivery, the tenant shall acknowledge receipt of the notice
and sign his or her name on the landlord's copy of the notice.
(2) Return the portion of the security remaining after any lawful
deductions made under subdivision (e) to the tenant, together with an
accounting as provided in subdivision (g).
(i) Prior to the voluntary transfer of a landlord's interest in the
premises, the landlord shall deliver to the landlord's successor in
interest a written statement indicating the following:
(1) The security remaining after any lawful deductions are made.
(2) An itemization of any lawful deductions from any security
received.
(3) His or her election under paragraph (1) or (2) of subdivision (h).
This subdivision does not affect the validity of title to the real
property transferred in violation of this subdivision.
(j) In the event of noncompliance with subdivision (h), the landlord's
successors in interest shall be jointly and severally liable with the
landlord for repayment of the security, or that portion thereof to which
the tenant is entitled, when and as provided in subdivisions (e) and
(g). A successor in interest of a landlord may not require the tenant to
post any security to replace that amount not transferred to the tenant
or successors in interest as provided in subdivision (h), unless and until
the successor in interest first makes restitution of the initial security
as provided in paragraph (2) of subdivision (h) or provides the tenant
with an accounting as provided in subdivision (g).
This subdivision does not preclude a successor in interest from
recovering from the tenant compensatory damages that are in excess of the
security received from the landlord previously paid by the tenant to the
landlord.
Notwithstanding this subdivision, if, upon inquiry and reasonable
investigation, a landlord's successor in interest has a good faith belief
that the lawfully remaining security deposit is transferred to him or her
or returned to the tenant pursuant to subdivision (h), he or she is not
liable for damages as provided in subdivision (l), or any security not
transferred pursuant to subdivision (h).
(k) Upon receipt of any portion of the security under paragraph (1)
of subdivision (h), the landlord's successors in interest shall have all
of the rights and obligations of a landlord holding the security with
respect to the security.
(l) The bad faith claim or retention by a landlord or the landlord's
successors in interest of the security or any portion thereof in
violation of this section, or the bad faith demand of replacement
security in violation of subdivision (j), may subject the landlord or the
landlord's successors in interest to statutory damages of up to twice the
amount of the security, in addition to actual damages. The court may
award damages for bad faith whenever the facts warrant that award,
regardless of whether the injured party has specifically requested
relief. In any action under this section, the landlord or the landlord's
successors in interest shall have the burden of proof as to the
reasonableness of the amounts claimed or the authority pursuant to this
section to demand additional security deposits.
(m) No lease or rental agreement may contain any provision
characterizing any security as "nonrefundable."
(n) Any action under this section may be maintained in small claims
court if the damages claimed, whether actual or statutory or both, are
within the jurisdictional amount allowed by Section 116.220 or 116.221
of the Code of Civil Procedure.
(o) Proof of the existence of and the amount of a security deposit may
be established by any credible evidence, including, but not limited to, a
canceled check, a receipt, a lease indicating the requirement of a
deposit as well as the amount, prior consistent statements or actions
of the landlord or tenant, or a statement under penalty of perjury that
satisfies the credibility requirements set forth in Section 780 of the
Evidence Code.
(p) The amendments to this section made during the 1985 portion of the
1985-86 Regular Session of the Legislature that are set forth in
subdivision (e) are declaratory of existing law.
(q) The amendments to this section made during the 2003 portion of the
2003-04 Regular Session of the Legislature that are set forth in
paragraph (1) of subdivision (f) are declaratory of existing law.
§ 1950.6 Civ.
(a) Notwithstanding Section 1950.5, 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 costs of obtaining information
about the applicant. The information requested and obtained by the
landlord or his or her agent may include, but is not limited to, personal
reference checks and consumer credit reports produced by consumer credit
reporting agencies as defined in Section 1785.3 A landlord or his
or her agent may, but is not required to, accept and rely upon a consumer
credit report presented by an applicant.
(b) The amount of the application screening fee shall not be greater
than the actual out-of-pocket costs of gathering information concerning
the applicant, including, but not limited to, the cost of using a tenant
screening service or a 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) per applicant. The thirty dollar
($30) application screening fee may be adjusted annually by the landlord
or his or her agent commensurate with an increase in the Consumer Price
Index, beginning on January 1, 1998.
(c) Unless the applicant agrees in writing, a landlord or his or her
agent may not charge an applicant an application screening fee when he
or she knows or should have known that no rental unit is available at that
time or will be available within a reasonable period of time.
(d) 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 receipt 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.
(e) If the landlord or his or her agent does not perform a personal
reference check or does not obtain a consumer credit report, the landlord
or his or her agent shall return any amount of the screening fee that is
not used for the purposes authorized by this section to the applicant.
(f) If an application screening fee has been paid by the applicant and
if requested by the applicant, the landlord or his or her agent shall
provide a copy of the consumer credit report to the applicant who is the
subject of that report.
(g) As used in this section, "landlord" means an owner of residential
rental property.
(h) As used in this section, "application screening fee" means any
nonrefundable payment of money charged by a landlord or his or her agent
to an applicant, the purpose of which is to purchase a consumer credit
report and to validate, review, or otherwise process an application for
the rent or lease of residential rental property.
(i) As used in this section, "applicant" means any entity or individual
who makes a request to a landlord or his or her agent to rent a
residential housing unit, or an entity or individual who agrees to act as
a guarantor or cosigner on a rental agreement.
(j) The application screening fee shall not be considered an "advance
fee" as that term is used in Section 10026 of the
Business and Professions Code, and shall not be considered "security" as
that term is used in Section 1950.5
(k) This section is not intended to preempt any provisions
or regulations that govern the collection of deposits and fees under federal
or state housing assistance programs.
§ 1951.2 Civ.
(a) Except as otherwise provided in Section 1951.4, if a lessee
of real property breaches the lease and abandons the property before the end
of the term or if his right to possession is terminated by the lessor
because of a breach of the lease, the lease terminates. Upon such
termination, the lessor may recover from the lessee:
(1) The worth at the time of award of the unpaid rent which had
been earned at the time of termination;
(2) The worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time
of award exceeds the amount of such rental loss that the lessee proves could
have been reasonably avoided;
(3) Subject to subdivision (c), the worth at the time of award of the
amount by which the unpaid rent for the balance of the term after the
time of award exceeds the amount of such rental loss that the lessee
proves could be reasonably avoided; and (4) Any other amount necessary to
compensate the lessor for all the detriment proximately caused by the
lessee's failure to perform his obligations under the lease or which in
the ordinary course of things would be likely to result therefrom.
(b) The "worth at the time of award" of the amounts referred to in
paragraphs (1) and (2) of subdivision (a) is computed by allowing interest
at such lawful rate as may be specified in the lease or, if no such rate
is specified in the lease, at the legal rate. The worth at the time
of award of the amount referred to in paragraph (3) of subdivision (a) is
computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus 1 percent.
(c) The lessor may recover damages under paragraph (3)
of subdivision (a) only if:
(1) The lease provides that the damages he may recover include the
worth at the time of award of the amount by which the unpaid rent for the
balance of the term after the time of award, or for any shorter period
of time specified in the lease, exceeds the amount of such rental loss for
the same period that the lessee proves could be reasonably avoided; or
(2) The lessor relet the property prior to the time of award and proves
that in reletting the property he acted reasonably and in a good-faith
effort to mitigate the damages, but the recovery of damages under this
paragraph is subject to any limitations specified in the lease.
(d) Efforts by the lessor to mitigate the damages caused by the
lessee's breach of the lease do not waive the lessor's right to recover
damages under this section.
(e) Nothing in this section affects the right of the lessor under a
lease of real property to indemnification for liability arising prior to
the termination of the lease for personal injuries or property damage
where the lease provides for such indemnification.
§ 1951.3 Civ.
(a) Real property shall be deemed abandoned by the lessee, within the
meaning of Section 1951.2, and the lease shall terminate if the
lessor gives written notice of his belief of abandonment as provided in
this section and the lessee fails to give the lessor written notice,
prior to the date of termination specified in the lessor's notice, stating
that he does not intend to abandon the real property and stating an
address at which the lessee may be served by certified mail in any action
for unlawful detainer of the real property.
(b) The lessor may give a notice of belief of abandonment to the lessee
pursuant to this section only where the rent on the property has been due
and unpaid for at least 14 consecutive days and the lessor reasonably
believes that the lessee has abandoned the property. The date
of termination of the lease shall be specified in the lessor's notice and
shall be not less than 15 days after the notice is served personally or,
if mailed, not less than 18 days after the notice is deposited in the
mail.
(c) The lessor's notice of belief of abandonment shall be personally
delivered to the lessee or sent by first-class mail, postage prepaid, to
the lessee at his last known address and, if there is reason to believe
that the notice sent to that address will not be received by the lessee,
also to such other address, if any, known to the lessor where the lessee
may reasonably be expected to receive the notice.
(d) The notice of belief of abandonment shall be in substantially
the following form:
Notice of Belief of Abandonment To:
________________________________________________
____________ (Name of lessee/tenant)____________________________________________________________ (Address
of lessee/tenant) This notice is given pursuant to Section 1951.3
of the Civil Code concerning the real property leased by you at ________
(state location of the property by address or other sufficient
description). The rent on this property has been due and unpaid for 14
consecutive days and the lessor/landlord believes that you have abandoned
the property.The real property will be deemed abandoned within the meaning
of Section 1951.2 of the Civil Code and your lease will terminate on
________ (here insert a date not less than 15 days after this notice is
served personally or, if mailed, not less than 18 days after this notice
is deposited in the mail) unless before such date the under-signed
receives at the address indicated below a written notice from you stating
both of the following:(1) Your intent not to abandon the real property.
(2) An address at which you may be served by certified mail
in any action for unlawful detainer of the real property. You are
required to pay the rent due and unpaid on this real property as
required by the lease, and your failure to do so can lead to a court
proceeding against you.Dated: ________
__________________________________________________
(Signature of lessor/landlord)__________________________________________________
(Type or print name of lessor/landlord)__________________________________________________
(Address to which lessee/tenant is to send notice)
(e) The real property shall not be deemed to be abandoned pursuant
to this section if the lessee proves any of the following:
(1) At the time the notice of belief of abandonment was given, the
rent was not due and unpaid for 14 consecutive days.
(2) At the time the notice of belief of abandonment was given, it was
not reasonable for the lessor to believe that the lessee had abandoned
the real property. The fact that the lessor knew that the lessee left
personal property on the real property does not, of itself, justify a
finding that the lessor did not reasonably believe that the lessee had
abandoned the real property.
(3) Prior to the date specified in the lessor's notice, the lessee gave
written notice to the lessor stating his intent not to abandon the real
property and stating an address at which he may be served by certified
mail in any action for unlawful detainer of the real property.
(4) During the period commencing 14 days before the time the notice
of belief of abandonment was given and ending on the date the lease would
have terminated pursuant to the notice, the lessee paid to the lessor all
or a portion of the rent due and unpaid on the real property.
(f) Nothing in this section precludes the lessor or the lessee
from otherwise proving that the real property has been abandoned by
the lessee within the meaning of Section 1951.2
(g) Nothing in this section precludes the lessor from serving a notice
requiring the lessee to pay rent or quit as provided in
Sections 1161 and 1162 of the Code of Civil Procedure at any
time permitted by those sections, or affects the time and manner
of giving any other notice required or permitted by law. The giving of the
notice provided by this section does not satisfy the requirements
of Sections 1161 and 1162 of the Code of Civil
Procedure.
§ 1951.4 Civ.
(a) The remedy described in this section is available only if the lease
provides for this remedy. In addition to any other type of provision used
in a lease to provide for the remedy described in this section, a
provision in the lease in substantially the following form satisfies this
subdivision:
"The lessor has the remedy described in California Civil Code
Section 1951.4 (lessor may continue lease in effect after lessee's breach and
abandonment and recover rent as it becomes due, if lessee has right to
sublet or assign, subject only to reasonable limitations)."
(b) Even though a lessee of real property has breached the lease and
abandoned the property, the lease continues in effect for so long as the
lessor does not terminate the lessee's right to possession, and the
lessor may enforce all the lessor's rights and remedies under the lease,
including the right to recover the rent as it becomes due under the
lease, if any of the following conditions is satisfied:
(1) The lease permits the lessee, or does not prohibit or otherwise
restrict the right of the lessee, to sublet the property, assign the
lessee's interest in the lease, or both.
(2) The lease permits the lessee to sublet the property, assign the
lessee's interest in the lease, or both, subject to express standards
or conditions, provided the standards and conditions are reasonable at the
time the lease is executed and the lessor does not require compliance
with any standard or condition that has become unreasonable at the time
the lessee seeks to sublet or assign. For purposes of this paragraph, an
express standard or condition is presumed to be reasonable; this
presumption is a presumption affecting the burden of proof.
(3) The lease permits the lessee to sublet the property, assign the
lessee's interest in the lease, or both, with the consent of the lessor,
and the lease provides that the consent shall not be unreasonably
withheld or the lease includes a standard implied by law that consent
shall not be unreasonably withheld.
(c) For the purposes of subdivision (b), the following do not
constitute a termination of the lessee's right to possession:
(1) Acts of maintenance or preservation or efforts to relet the
property.
(2) The appointment of a receiver upon initiative of the lessor to
protect the lessor's interest under the lease.
(3) Withholding consent to a subletting or assignment, or terminating a
subletting or assignment, if the withholding or termination does not
violate the rights of the lessee specified in subdivision (b).
1951.7.
(a) As used in this section, "advance payment" means moneys
paid to the lessor of real property as prepayment of rent, or as a deposit
to secure faithful performance of the terms of the lease, or another
payment that is the substantial equivalent of either of these. A payment
that is not in excess of the amount of one month's rent is not an advance
payment for purposes of this section.
(b) The notice provided by subdivision (c) is required to be given only
if all of the following apply:
(1) The lessee has made an advance payment.
(2) The lease is terminated pursuant to Section 1951.2.
(3) The lessee has made a request, in writing, to the lessor that he
or she be given notice under subdivision (c).
(c) Upon the initial reletting of the property, the lessor shall send a
written notice to the lessee stating that the property has been relet,
the name and address of the new lessee, and the length of the new lease
and the amount of the rent. The notice shall be delivered to the lessee
personally, or be sent by regular mail to the lessee at the address shown
on the request, not later than 30 days after the new lessee takes
possession of the property. Notice is not required if the amount of the
rent due and unpaid at the time of termination exceeds the amount of the
advance payment.