Asian Law Alliance - Housing Booklet



Your Rights and Responsibilities as a Tenant in California This booklet gives you basic information about your rights as a tenant in California. If you have any questions or problems, you should contact a legal organization, an attorney, or the Asian Law Alliance. A list of resources is located at the end of this booklet. To help you find information about a specific question, the booklet is divided up into seven sections: I. Information You Need to Know Before You Move In Inventory Holding Deposit Discrimination II. Differences Between Housing Agreements Oral Agreements Written Agreements Written Leases III. After You Move In Security Deposits Rent Increases in Security Deposits or Rent Landlord Entering the Unit Sublease IV. Repairs and Responsibilities Tenant Responsibility Landlord Responsibility Repairs Fixing Repair Problems Retaliatory Actions V. Moving Out Thirty-Day Notice VI. Eviction Reasons for Eviction Three Day Notice Illegal Landlord Actions Proper Service VII. Unlawful Detainer Responding to an Unlawful Detainer Preparing for Court Court Outcomes Writ of Possession Sample Demand Letter for Your Security Deposit Resources You can Contact for Help I. INFORMATION YOU NEED TO KNOW BEFORE YOU MOVE IN: Inventory Holding Deposit Discrimination 1. What are some of the things I need to look for when I look at a rental unit? Before you decide to sign a rental agreement it is very important to inspect the apartment, duplex, or house with the landlord. Use the inventory checklist at the end of this booklet as a guide. When you inspect the unit, look for the following problems: Cracks or holes in the floor, walls, or ceiling Signs of leaking water or water damage in the floor, walls, or ceiling Leaks in the bathroom or kitchen No hot water Not enough lighting or electrical outlets Inadequate heating or air conditioning Defects in electrical wiring and fixtures Damaged floors Signs of insects or rodents Chipping paint 2. What is a holding deposit? A holding deposit is money paid to the landlord to hold the rental unit for a period of time until you pay the first month’s rent and any security deposit. By accepting a holding deposit, the landlord promises not to rent the unit to anyone else. If you change your mind about moving in, the landlord may not have to return your holding deposit. Questions you should ask before you pay your holding deposit: Will the deposit be applied to the first month’s rent? If so, ask for a receipt stating this. Will any part of the holding deposit be returned to you if you change your mind about renting the unit? 3. What happens if I have paid a holding deposit, but the landlord rents the unit to a different party? The landlord should return your entire holding deposit to you. You can sue in Small Claims Court for your holding deposit and additional damages if the landlord does not return the full amount. You may want to speak to an attorney, legal aid organization, or housing clinic for legal advice. 4. What is unlawful discrimination? It is illegal for a landlord to discriminate against a person because of a person’s race, religion, sex, marital status, national origin, ancestry, familial status, or disability. It is also against the law to discriminate because of a person’s mental or physical disability, or because of personal characteristics, such as a person’s physical appearance or sexual orientation. To discriminate is to treat a person differently because of the reasons listed above. A landlord may try to discriminate against you in different ways, such as: Charging you more rent or extra fees for the same size apartment Telling you that there is no apartment available when there really is one available 5. What can I do if I think my landlord is discriminating against me? First, write down information such as: Name, address, and telephone number of the landlord The date you talked with the landlord What the landlord said to you What you said to your landlord Names, addresses, and telephone numbers of witnesses Second, you can complain to: Local fair housing organizations Local government agencies California Department of Fair Employment and Housing. This organization investigates housing discrimination complaints. The DFEH’s phone number is 1-800-233-3212. US Department of Housing and Urban Development. HUD enforces the federal fair housing law, which prohibits discrimination. Back to Top. II. DIFFERENCES BETWEEN HOUSING AGREEMENTS: Oral Agreements Written Agreements Written Leases 1. What is an oral agreement? In an oral agreement, you and the landlord agree verbally that you will rent the apartment, duplex or house. You also agree to pay a specified rent for a specified period of time. This kind of rental agreement is legal, but it is better if you have the agreement in writing because you have more legal protection. If you have a disagreement with your landlord, you have no written proof of the terms you both have agreed upon. It is especially important to have a written agreement if your tenancy involves special circumstances such as: Allowing you to keep at pet or water-filled furniture Agreeing to pay any expenses such as utilities or garbage 2. What is a written agreement? A written agreement is a rental agreement that has been put in writing. This agreement specifies all the terms between you and your landlord such as: Amount of rent Length of time between rent payments Landlord’s and your obligations A written rental agreement does not state the total number of months or weeks that the agreement will be in effect. The month-to-month rental agreement is the most common kind of written rental agreement. Talk with a housing clinic or legal assistance organization. They will help you understand the legal issues in your case. 3. What is a written lease A written lease states the time period in which the lease will be in effect. You will know how long you will be living in the unit. If you sign an agreement that you will be renting for a certain period of time, such as for one year or six months, you have a lease. If you have signed a lease, the landlord cannot raise your rent or evict you while the lease is effect, unless you violate the specified terms in the lease. 4. What should be included in a rental or written lease agreement? The written rental or lease agreement should contain important terms such as the following: The names of your landlord and you The address of the rental unit When the rent is due, who you pay, and where you pay The amount and purpose of the security deposit The amount of any late charge or returned check fee Whether pets are allowed The number of people allowed to live in the rental unit Who is responsible for paying for utilities (gas, electric, water and trash collection) If the rental is a house or a duplex with a yard, who is responsible for taking care of the yard Any promises by the landlord to make repairs Back to Top. III. AFTER YOU MOVE IN: Security Deposits Rent Increases in Security Deposits and Rent Landlord Entering the Unit Sublease 1. What is a security deposit? A security deposit is a deposit or fee that the landlord requires you to pay at the beginning of the tenancy. A security deposit may be called "last month’s rent," "pet deposit," "key deposit," or "cleaning deposit." The landlord cannot charge you more than the amount of two months’ rent for an unfurnished rental unit, or three months’ rent for a furnished unit as a security deposit. Remember to always put all agreements about deposits in writing. Always ask for a RECEIPT for a deposit. 2. How is the last month’s rent different from a security deposit? Sometimes at the start of your tenancy, a landlord may ask for the first month’s rent, a security deposit, and the last month’s rent. If this is so, you will NOT have to pay rent for the last month that you live there. The last month’s rent is just the last month’s rent. A security deposit is described above. 3. What happens to my security deposit when I move out? Within 21 days (three weeks) after you move, your landlord must either: Send you a full refund of your security deposit, or Mail or personally deliver an itemized statement that lists the amounts of and reasons for any deductions from your security deposit, along with a refund of any amounts not deducted 4. What can I do if it has been over 21 days, and I still have not received my security deposit? The landlord then loses the right to retain any of the security deposit, and must return the entire deposit to you. Write a letter to your landlord asking for the deposit. Date the letter, make a copy, and send it by certified mail. A sample of a demand letter can be found at the end of this booklet. Include a copy of the "Inventory" if you have one. 5. What can the landlord deduct from my security deposit? A landlord may use your security deposit for: Unpaid rent Cleaning the rental unit when you move out if the unit is not as clean as it was when you first rented Repair of damages other than normal wear and tear The cost of replacing furniture, furnishings, or other items of personal property (only if the lease or rental agreement allows it) 6. What CAN’T the landlord use my security deposit for? Your landlord cannot use your security deposit for: repairing defects that existed in the unit before you moved in conditions caused by normal wear and tear cleaning the unit that is as clean as it was when you moved in 7. What can I do if 21 days have passed, I have written the letter but the landlord does not respond or I believe that the landlord deducted things that should not have been deducted? Negotiate with your landlord. See if your landlord will agree on the amount of security deposit he/she will return to you. You can sue your landlord in Small Claims Court or speak to a legal assistance organization. Lawyers are not allowed in Small Claims Court, so you will have to represent yourself. If the landlord owes you more than $5,000, you may want to sue your landlord in municipal or superior court. In that case, you will need the help of a lawyer. 8. When do I pay my rent? Most rental agreements and leases require that the rent be paid at the beginning of each rental period. If you are on a month-to-month tenancy, rent usually must be paid on the first day of each month. If you are confused about when to pay your rent, look over your lease or rental agreement. It is very important that you pay your rent on time. 9. What happens if I pay my rent late? A landlord can charge you a late fee if you do not pay the rent on time. The landlord can only do so if your rental agreement or lease has a late fee provision. Some landlords will waive the late fee if there is a good reason for the rent being late, and if you have been responsible in other ways. What happens if I cannot pay the entire amount of the rent on time? You will violate your lease or rental agreement if you do not pay the full amount of your rent on time. If you cannot pay the full amount, you may want to offer to pay part of the rent. Be careful with this. The law still allows your landlord to take your partial payment and still give you an eviction notice. If your landlord is willing to accept a partial rent payment and give you extra time to pay the rest, it is important that you and the landlord agree on the details in writing. 11. Can my landlord raise the amount of my security deposit once I have already moved in? If you have a lease, the security deposit cannot be increased unless it is written in the lease that an increase in the security deposit is allowed. If you have a rental agreement, the landlord can increase the security deposit unless the agreement does NOT allow an increase of the security deposit. The landlord must give you proper notice before increasing the security deposit. For example, if you are paying rent month-to-month, a 30 days’ advance written notice is required if there is an increase in the security deposit. Your landlord cannot raise the amount of the security deposit, no matter what the rental agreement says, if your security deposit ALREADY equals two times the current rent for unfurnished units or three times the monthly rent for a furnished unit. 12. Can my landlord increase my rent amount after I have already moved in? If you have a lease, your rent cannot be increased during the term of the lease, unless the lease allows rent increases. If you have a rental agreement, your landlord can increase your rent, but the landlord must give you proper advance notice in writing. The written notice tells you how much the increased rent is and when the increase goes into effect. If you have a month to month rental agreement, your landlord must give you 30 days prior written notice of your increase in rent. If you live in an apartment unit in San Jose, you are protected under rent control laws. These laws state: Your landlord may raise your rent only ONCE in a 12-month period Rent increases usually cannot be more than 8% per year or up to 21% a year if the landlord did not raise the rent the previous year You must file a complaint with the City of San Jose BEFORE the date the rent increase becomes effective These laws do not apply to units constructed after September 7, 1979, single-family residences, duplexes, and condominium units. 13. When can the landlord enter my rental unit? California law states that a landlord can enter a rental unit only for the following reasons: In an emergency When the tenant has moved out or has abandoned the rental unit To make necessary or agreed-upon repairs, decorations, alterations, or other improvements To show the rental unit to prospective tenants, buyers, or lenders, or to provide entry to contractors or workers who are to perform work on the unit If a court order allows the landlord to enter Except for emergencies or when a tenant has abandoned the unit, the landlord must give you reasonable advance notice before entering the rental unit. Generally a landlord may only enter during normal business hours, usually 8:00 AM to 5:00 PM on weekdays. The law considers 24 hours advance notice to be reasonable in most situations. If your landlord violates these rules, talk to the landlord about your concerns. If that does not work, send the landlord a formal letter asking him/her to follow the rules. Lastly, you may want to talk to an attorney or legal assistance organization. 14. What can I do if I have signed a lease but I cannot stay the entire length of the agreement? If you want to move out temporarily before your lease is finished, you can try subletting or assigning your rental unit. You cannot sublease or assign unless the terms of the lease allow you to do so. For example, if you want to leave the rental unit for the summer months, you can sublease the apartment, house, or duplex to another person. This way you do not have to pay the full amount of rent while you are away. When you sublease your rental unit, you are creating a separate rental agreement between the new tenant and yourself. You are still responsible for paying the rent to the landlord, but your new tenant must pay rent to you. If you want to move out permanently before your lease is over, you may want to assign a new tenant to the rental unit. An assignment is an agreement between the new tenant and you. However, the new tenant is directly responsible to the landlord, not you. For example, if you must move out of the rental unit for whatever reason, you can assign a new tenant to the rental unit so that you do not have to pay rent in a rental unit that you are not living in anymore. BUT if the new tenant fails to pay rent or damages the property, YOU are still legally responsible to the landlord. In order for you to avoid this responsibility, the landlord, the new tenant, and you must agree that the new tenant will be solely responsible to the landlord. This agreement should be in writing. All parties must sign the written agreement. Before you decide to sublet or assign, you should discuss your plans with your landlord in advance. Back to Top. IV. REPAIRS AND RESPONSIBILITIES: Tenant Responsibility Landlord Responsibility Repairs Fixing Repair Problems Retaliatory Actions 1. Am I responsible for repairs in the unit? You are responsible for repairs of all damage if you do not fulfill your responsibilities as a tenant, if you abuse the rental unit, and if the damage is caused by anyone for whom you are responsible, such as family, guests, or pets. You are responsible for the following list: Keep the unit clean and sanitary Use and operate gas, electrical, and plumbing fixtures properly Get rid of trash in a clean and sanitary way Not destroy, damage, or deface the unit, or allow anyone else to do so Not remove any part of the structure, or allow anyone else to do so Use the unit as a place to live, and use the rooms for their intended purposes 2. Is the landlord responsible for repairs in the unit? The landlord must repair problems that make the rental unit unfit to live in. A unit may be unfit to live in if it is missing any of the following: Effective waterproofing and weather protection on the roof and outside walls Plumbing facilities in good working order, including hot and cold running water Gas facilities in good working order Heating facilities in good working order An electric system, including lighting, wiring and equipment in good working order Clean and sanitary buildings Enough trash receptacles Floors, stairways, and railings in good condition 3. What can I do when I find a problem that my landlord needs to fix? It is best for you to first telephone your landlord and tell him/her what is wrong. Write a letter describing the damage or defects. Remember to date and sign the letter. Make a copy of the letter for yourself and send the original copy to the letter either by personally delivering it to him/her or by certified mail. You must give the landlord a reasonable amount of time to fix the problem. "Reasonable time" depends on the problem. For example, if you have no heat in the summer, then it would be reasonable for the landlord to fix the heater in 30 days. But if you have no heat in the winter, the landlord should fix the heater within a few days. 4. What can I do if I do not hear from the landlord, or if he/she does not want to fix the problem even though I did not cause the damage? If you live in San Jose, you can call the San Jose Rental Dispute Program at 408-277-5431. You can also sue your landlord in Small Claims Court and call a legal assistance organization or an attorney for help. In order for you to win in court, you must meet the following conditions: The rental unit must have serious habitability defects (these are the landlord responsibilities) A housing inspector must inspect the unit, and must notify the landlord, in writing, of the landlord’s obligation to repair The defects must continue to exist for more than 60 days after the housing inspector issued the letter to your landlord Your family, guests, pets, or you did not cause the damage that needs to be fixed 5. Can I take any of the repairs into my own hands? There are several ways in which you can make the repairs yourself. Keep in mind, each of the following actions has its own risks and requirements. Be very careful when you use one of the following methods. It may be helpful if you contact a legal aid organization before you try to use any of the methods below: Repair and Deduct This method allows you to deduct (take off) money from the rent to pay for repair of defects in the rental unit. Examples of problems you could use the repair and deduct method include: leaky roofs or outer walls, plumbing or gas facilities that do not work, no hot or cold water, no heat or electricity, fire hazards, insects or rats, or unsafe floors, stairs or railings. Let your landlord know about the problems BEFORE you repair and deduct. Inform the landlord by both telephone and letter about the problems. Give your landlord "reasonable" time to fix the damage. If the landlord still has not fixed the problem, you can pay someone who is qualified to fix the problem. Remember to keep the receipt. When it is time to pay the next month’s rent, write a letter to the landlord saying that you spent some of your own money to fix the problem, and that you will be subtracting what it cost from the rent. Send this letter with your rent and repair bill to the landlord by certified mail. Remember to keep a copy of everything for yourself. Things to keep in mind about the repair and deduct method: The defects must be serious and directly related to your health and safety The repairs cannot cost more than the amount of one month’s rent You can only use this method at most, twice, in any 12-month period Your family, guests, pets, or you must NOT have caused the defects that need repair Withholding Rent You are allowed to stop paying your rent or some of the rent if the landlord does not fix serious defects that violate the warranty of habitability. This too is very risky, your landlord may try to make you move (evict you). You may want to contact a legal assistance organization before you try this method. In order for you to use this remedy, the defects or repairs that are needed must be more serious than the problems in the repair and deduct method. An example of these problems include: collapse of the bathroom ceiling, continued presence of rats, mice and cockroaches, no heat, plumbing blockages, exposed or faulty wire, or an illegally installed and dangerous stove. There are other defects not listed here that you may use in withholding your rent. It is important that you take photographs and make videos showing the defects, have witnesses and copies of letters that you have written to your landlord about the problem. The basic steps and requirements for using the rent withholding method are: The defects must threaten your health or safety, remember these problems must be more severe than those in the repair and deduct method Your family, guests, pets, or you must not have caused the problems that need to be fixed You must inform the landlord both by telephone and letter You must give the landlord reasonable time to respond If the landlord does not respond to you, you can withhold some or all of the rent You should save the withheld rent money and do not spend it. Expect to pay the landlord some of all the withheld rent once the repairs have been made. You may want to put the withheld rent in a separate bank account. This is not required by law, but it is good for the landlord to know that you are not simply withholding rent just to avoid paying rent. Abandonment (Moving out without the landlord’s consent) If the problems are very serious so that they violate the implied warranty of habitability, you can move out even in the middle of your rental agreement or lease. Similar to the other methods listed above, this remedy is very risky. Abandonment might be used when the defects would cost more than one month’s rent to repair. The basic steps and requirements to the abandonment method are: The defects must be serious and directly related to your health and safety Your family, guests, pets, or you must not have caused the defects that need to be fixed You must inform you landlord by telephone and letter You must give your landlord a reasonable amount of time to respond to you If the landlord does not make the needed repairs within a reasonable period of time, you should write another letter listing your reasons for moving. Keep copies for yourself, and send the letter by certified mail. Move out 6. What if my landlord threatens to and tries to evict me or raises my rent because I have complained about problems in the unit or used the repair and deduct method? If the landlord tries to evict you because you have exercised a legal right, such as the repair and deduct method or you have complained of problems in the rental unit, his/her action is considered retaliatory. Contact a legal assistance organization if you feel that your landlord is using retaliatory actions against you. If your landlord raises your rent or tries to evict you within six months of you exercising the following actions, his/her actions may be considered retaliatory: Using the repair and deduct remedy Complaining about the condition of the rental unit Filing a lawsuit based on the condition of the rental unit Causing an appropriate public agency to inspect the rental unit Back to Top. V. MOVING OUT: Thirty-Day Notice 1. If I have signed a rental agreement, what do I need to do before I move out? To end a periodic (for example, a month-to-month) rental agreement, you must give your landlord proper written notice before you move. If you pay rent monthly, you must give written notice at least 30 days before you move. You must follow these timelines unless your rental agreement allows a shorter notice period. California law requires a minimum of seven days’ advance notice to end any rental agreement. 2. What kind of notice must a landlord give me before I must move out? A landlord can end a periodic tenancy with proper advance written notice in the same way that you would, if you planned on moving. If you pay rent monthly, your landlord must give you 30 days advance written notice. When you receive a 30-day notice, you must leave the rental unit within 30 days after the date that the landlord served the notice. If the end of the 30-day period falls on a legal holiday, the notice period is extended. 3. What if I have received a 30-day notice, but I want to continue to live in the unit or I believe that I haven’t done anything to cause the landlord to give me a 30-day notice? You can try to convince the landlord to withdraw the notice. Try to find out why the landlord gave you the 30-day notice. If it is something within your control (such as consistently paying rent late, or playing the stereo too loud), you can try to assure the landlord that in the future, you will pay your rent on time or keep the volume turned down. If your landlord agrees that you can continue to live in the unit, it is important that your agreement with the landlord be in writing. If the landlord does not withdraw the notice, you will have to move out at the end of 30 days. 4. What if I have received a 30-day notice, but I do not leave at the end of 30 days? The landlord can file an unlawful detainer lawsuit to evict you. An unlawful detainer is the beginning of the eviction process. Back to Top. VI. EVICTION: Reasons for Eviction Three Day Notice Illegal Landlord Actions Proper Service 1. What are some reasons a landlord might use to evict me? A landlord may evict you for any of the following reasons listed below and more: Because you did not pay rent when it is due Because you broke some part of the rental agreement You did not move after the landlord gave you proper notice to vacate and the time period listed in the notice has passed 2. While I am being evicted, what are some of the things the landlord CANNOT do? The landlord must follow court procedures. The landlord may NOT use any of the following methods during the eviction process: Lock you out of your apartment Shut off your utilities (water or electricity) Remove outside windows or doors Take your belongings in order to carry out the eviction Call the police on you for trespassing. If the police are called, you should tell them that you are a tenant. If the police do not let you in, do not resist or break into the unit. 3. What is a three-day notice? A landlord can use a written three-day notice for you to fix the problem or move out if you have done any of the following: Failed to pay rent Broke some part of the rental agreement Damaged the rental property Substantially interfered with the other tenants Used the rental unit for an unlawful purpose The three-day notice must state the reasons why you are being given the notice. The notice must also give you the option to correct the problems or state the amount of rent that is still due. If you pay the rent or correct the problems within the three-day notice period, you may continue to live in the unit. If you try to pay the rent amount after the three days, the landlord can either file a lawsuit to evict you or accept the rent payment. If the landlord accepts the rent payment, the landlord gives up the right to evict you based on late payment of rent. If the problem cannot be fixed, you must move out within the three-day notice period. 4. What happens if I stay beyond the three-day notice and I do not fix any problems? The landlord will file an unlawful detainer suit against you. The details of the unlawful detainer will be described in the next section. 5. What is proper service? A landlord can serve you by three ways: Personal service – To serve you personally, the person serving the notice must be over the age of 18. This person must hand you the service papers. If you receive a notice in the mail, it is not proper personal service. The notice period begins the day after you receive the notice. Substituted service on another person – If the landlord cannot personally serve you, he/she can leave the service papers with another person of suitable age (usually over the age of 18) at your home or workplace. The person left with the service papers must have some kind of contact with you, such as the receptionist of your workplace, your spouse, or other family members. If there is substitution of service, the landlord must also mail you a copy of the notice. Posting and mailing - If the landlord cannot personally serve you, or find another person who has contact with you to serve, the notice can be served by taping or tacking a copy to the apartment, house, or duplex in a noticeable place (such as the front door) and mailing you a second copy. The notice period begins the day after the notice is posted and mailed. Back to Top. VII. UNLAWFUL DETAINER: Responding to an Unlawful Detainer Preparing for Court Court Outcomes Writ of Possession 1. How do I respond to an unlawful detainer lawsuit? If you are served with an unlawful detainer complaint, you should get legal advice as soon as possible. You usually only have five days to respond in writing to the landlord’s complaint. You must file the correct legal document with the clerk of the court in which the lawsuit was filed. Usually, you respond by filing a written "answer." Both your landlord and you will be sent a date, time, and place of the trial. If the fifth day falls on a weekend or holiday, you can file your written response on the following Monday or nonholiday. 2. What if I do not respond to the landlord’s complaint within the five days? If you do not respond to the complaint within the five days, the court will enter a default judgment. The default judgment is a ruling by the court in favor or the landlord. The court has issued a judgment that requires you to follow through with the landlord’s demands. Usually this means you must move out. The judgment also allows the landlord to get a writ of possession. A writ of possession is described later in this section. The court may also award the landlord unpaid rent, damages, and court costs. 3. What should I do before I go to court? Before you appear in court, you must carefully prepare your case. Among other things, you should: Decide how you present the facts that support your side of the case, whether by witnesses, letters, photographs, video, or other evidence. Have at least four copies of all documents that you intend to use as evidence. These copies go to the judge, the landlord, yourself, and your witnesses. Ask witnesses to testify at the trial, if they will help your case. You can subpeona a witness who will not testify voluntarily. A subpeona is an order from the court for a witness to appear in court. 4. What happens if the court decides in my favor? If the court decides in your favor, you will not have to move. The landlord may be ordered to pay your court costs and your attorney’s fees. However, you will have to pay any rent that the court orders. 5. What happens if the court sides with the landlord? If the landlord wins, you may be ordered to pay the landlord’s court costs and attorney’s fees. You must also pay for any proven damages, such as overdue rent, or the cost of repairs if damage was done to the unit. The court will also issue a writ of possession to the landlord. The landlord can deliver this legal document to the sheriff. The sheriff will serve you with a copy of the writ of possession. This document gives you five days to move out after you have been served. 6. What happens if I do not move out after I have been served the writ of possession? The sheriff will return and physically remove you from the unit. If your belongings are still in the unit, the sheriff may either remove them or have them stored by the landlord, who can charge you reasonable storage fees. If you do not reclaim your things within 18 days, the landlord can mail a notice to pick them up, sell your things, or keep them (if their value is less than $300.) Back to Top. Sample Demand Letter for Your Security Deposit (Date Mailed) Dear (Landlord’s Name): As you know, until (Move-out date), we lived at (former address) and regularly paid rent to you. When we moved out, we left the unit clean. As of today, we have received only $(amount refunded if any or 0) of our $(full amount of deposit). You have not paid us the balance nor given us a written accounting explaining how you spent it. Please be aware that we know our rights. If we do not receive our security deposit of $(_______________) by (date 10 days from when you mail this letter), we will regard your retention of these deposits as a showing of bad faith and will be forced to sue you not only for $(amount of deposit still owing) in deposit, but also for $600.00 in punitive damages as allowed under the law. Very truly yours, (Your Name)_____________ (Your Mailing Address)____ (City, State, Zip Code)_____ Back to Top. Resources You Can Contact For Help: STATE DEPARTMENTS: Department of Consumer Affairs 400 R Street 916-445-1254 Sacramento, CA 94814 800-952-5210 Department of Fair Employment & Housing 2000 O Street, No. 120 Sacramento, CA 95814 800-233-3212 Department of Real Estate 2201 Broadway Sacramento, CA 95818 916-227-0864 916-227-0931 SANTA CLARA COUNTY: Asian Law Alliance 184 E. Jackson Street San Jose, CA 95113 408-287-9710 California Department of Fair Employment & Housing (DFEH) 111 N. Market Street San Jose, CA 95113 800-884-1684 408-277-1264 Bay Area Legal Aid 2 W. Santa Clara Street, 8th Floor San Jose, CA 95109 408-283-3700 Legal Aid Housing Project 480 N. First Street San Jose, CA 95113 408-283-1540 Midpeninsula Citizens for Fair Housing 457 Kinglsey Avenue Palo Alto, CA 94301 650-327-1718 Project Sentinel 7365 Monterey Road, Suite D Gilroy, CA 95020 408-842-7740 Project Sentinel 430 Sherman Avenue Palo Alto, CA 94306 650-321-6291 San Jose Fair Housing Law Project 111 W. St. John Street #315 San Jose, CA 95113 408-287-4663 TDD: 408-294-5667 San Jose Rental Dispute Program 4 N. Second Street, Suite 600 San Jose, CA 95113 408-277-5431 Small Claims Advisor 408-792-2881 Back to Top. Download this booklet in PDF format.

Your Rights and Responsibilities as a Tenant in California

House

This booklet gives you basic information about your rights as a tenant in California. If you have any questions or problems, you should contact a legal organization, an attorney, or the Asian Law Alliance. A list of resources is located at the end of this booklet.

To help you find information about a specific question, the booklet is divided up into seven sections:

I. Information You Need to Know Before You Move In

Inventory
Holding Deposit
Discrimination

II. Differences Between Housing Agreements

Oral Agreements
Written Agreements
Written Leases

III. After You Move In

Security Deposits
Rent
Increases in Security Deposits or Rent
Landlord Entering the Unit
Sublease

IV. Repairs and Responsibilities

Tenant Responsibility
Landlord Responsibility
Repairs
Fixing Repair Problems
Retaliatory Actions

V. Moving Out

Thirty-Day Notice

VI. Eviction

Reasons for Eviction
Three Day Notice
Illegal Landlord Actions
Proper Service

VII. Unlawful Detainer

Responding to an Unlawful Detainer
Preparing for Court
Court Outcomes
Writ of Possession

Sample Demand Letter for Your Security Deposit

Resources You can Contact for Help

I. INFORMATION YOU NEED TO KNOW BEFORE YOU MOVE IN:

Inventory
Holding Deposit
Discrimination

1. What are some of the things I need to look for when I look at a rental unit?

Before you decide to sign a rental agreement it is very important to inspect the apartment, duplex, or house with the landlord. Use the inventory checklist at the end of this booklet as a guide. When you inspect the unit, look for the following problems:

Cracks or holes in the floor, walls, or ceiling
Signs of leaking water or water damage in the floor, walls, or ceiling
Leaks in the bathroom or kitchen
No hot water
Not enough lighting or electrical outlets
Inadequate heating or air conditioning
Defects in electrical wiring and fixtures
Damaged floors
Signs of insects or rodents
Chipping paint

2. What is a holding deposit?

A holding deposit is money paid to the landlord to hold the rental unit for a period of time until you pay the first month’s rent and any security deposit. By accepting a holding deposit, the landlord promises not to rent the unit to anyone else. If you change your mind about moving in, the landlord may not have to return your holding deposit.

Questions you should ask before you pay your holding deposit:

Will the deposit be applied to the first month’s rent? If so, ask for a receipt stating this.
Will any part of the holding deposit be returned to you if you change your mind about renting the unit?

3. What happens if I have paid a holding deposit, but the landlord rents the unit to a different party?

The landlord should return your entire holding deposit to you. You can sue in Small Claims Court for your holding deposit and additional damages if the landlord does not return the full amount. You may want to speak to an attorney, legal aid organization, or housing clinic for legal advice.

4. What is unlawful discrimination?

It is illegal for a landlord to discriminate against a person because of a person’s race, religion, sex, marital status, national origin, ancestry, familial status, or disability.

It is also against the law to discriminate because of a person’s mental or physical disability, or because of personal characteristics, such as a person’s physical appearance or sexual orientation.

To discriminate is to treat a person differently because of the reasons listed above.

A landlord may try to discriminate against you in different ways, such as:

Charging you more rent or extra fees for the same size apartment
Telling you that there is no apartment available when there really is one available

5. What can I do if I think my landlord is discriminating against me?

First, write down information such as:

Name, address, and telephone number of the landlord
The date you talked with the landlord
What the landlord said to you
What you said to your landlord
Names, addresses, and telephone numbers of witnesses

Second, you can complain to:

Local fair housing organizations
Local government agencies
California Department of Fair Employment and Housing. This organization investigates housing discrimination complaints. The DFEH’s phone number is 1-800-233-3212.
US Department of Housing and Urban Development. HUD enforces the federal fair housing law, which prohibits discrimination.

II. DIFFERENCES BETWEEN HOUSING AGREEMENTS:

Oral Agreements
Written Agreements
Written Leases

1. What is an oral agreement?

In an oral agreement, you and the landlord agree verbally that you will rent the apartment, duplex or house. You also agree to pay a specified rent for a specified period of time. This kind of rental agreement is legal, but it is better if you have the agreement in writing because you have more legal protection. If you have a disagreement with your landlord, you have no written proof of the terms you both have agreed upon. It is especially important to have a written agreement if your tenancy involves special circumstances such as:

Allowing you to keep at pet or water-filled furniture
Agreeing to pay any expenses such as utilities or garbage

2. What is a written agreement?

A written agreement is a rental agreement that has been put in writing. This agreement specifies all the terms between you and your landlord such as:

Amount of rent
Length of time between rent payments
Landlord’s and your obligations
A written rental agreement does not state the total number of months or weeks that the agreement will be in effect. The month-to-month rental agreement is the most common kind of written rental agreement. Talk with a housing clinic or legal assistance organization. They will help you understand the legal issues in your case.

3. What is a written lease

A written lease states the time period in which the lease will be in effect. You will know how long you will be living in the unit. If you sign an agreement that you will be renting for a certain period of time, such as for one year or six months, you have a lease.

If you have signed a lease, the landlord cannot raise your rent or evict you while the lease is effect, unless you violate the specified terms in the lease.

4. What should be included in a rental or written lease agreement?

The written rental or lease agreement should contain important terms such as the following:

The names of your landlord and you
The address of the rental unit
When the rent is due, who you pay, and where you pay
The amount and purpose of the security deposit
The amount of any late charge or returned check fee
Whether pets are allowed
The number of people allowed to live in the rental unit
Who is responsible for paying for utilities (gas, electric, water and trash collection)
If the rental is a house or a duplex with a yard, who is responsible for taking care of the yard
Any promises by the landlord to make repairs

III. AFTER YOU MOVE IN:

Security Deposits
Rent
Increases in Security Deposits and Rent
Landlord Entering the Unit
Sublease

1. What is a security deposit?

A security deposit is a deposit or fee that the landlord requires you to pay at the beginning of the tenancy. A security deposit may be called "last month’s rent," "pet deposit," "key deposit," or "cleaning deposit."

The landlord cannot charge you more than the amount of two months’ rent for an unfurnished rental unit, or three months’ rent for a furnished unit as a security deposit.

Remember to always put all agreements about deposits in writing. Always ask for a RECEIPT for a deposit.

2. How is the last month’s rent different from a security deposit?

Sometimes at the start of your tenancy, a landlord may ask for the first month’s rent, a security deposit, and the last month’s rent. If this is so, you will NOT have to pay rent for the last month that you live there. The last month’s rent is just the last month’s rent. A security deposit is described above.

3. What happens to my security deposit when I move out?

Within 21 days (three weeks) after you move, your landlord must either:

Send you a full refund of your security deposit, or
Mail or personally deliver an itemized statement that lists the amounts of and reasons for any deductions from your security deposit, along with a refund of any amounts not deducted

4. What can I do if it has been over 21 days, and I still have not received my security deposit?

The landlord then loses the right to retain any of the security deposit, and must return the entire deposit to you. Write a letter to your landlord asking for the deposit. Date the letter, make a copy, and send it by certified mail. A sample of a demand letter can be found at the end of this booklet. Include a copy of the "Inventory" if you have one.

5. What can the landlord deduct from my security deposit?

A landlord may use your security deposit for:

Unpaid rent
Cleaning the rental unit when you move out if the unit is not as clean as it was when you first rented
Repair of damages other than normal wear and tear
The cost of replacing furniture, furnishings, or other items of personal property (only if the lease or rental agreement allows it)

6. What CAN’T the landlord use my security deposit for?

Your landlord cannot use your security deposit for:

repairing defects that existed in the unit before you moved in

conditions caused by normal wear and tear

cleaning the unit that is as clean as it was when you moved in

7. What can I do if 21 days have passed, I have written the letter but the landlord does not respond or I believe that the landlord deducted things that should not have been deducted?

Negotiate with your landlord. See if your landlord will agree on the amount of security deposit he/she will return to you.

You can sue your landlord in Small Claims Court or speak to a legal assistance organization. Lawyers are not allowed in Small Claims Court, so you will have to represent yourself. If the landlord owes you more than $5,000, you may want to sue your landlord in municipal or superior court. In that case, you will need the help of a lawyer.

8. When do I pay my rent?

Most rental agreements and leases require that the rent be paid at the beginning of each rental period. If you are on a month-to-month tenancy, rent usually must be paid on the first day of each month. If you are confused about when to pay your rent, look over your lease or rental agreement. It is very important that you pay your rent on time.

9. What happens if I pay my rent late?

A landlord can charge you a late fee if you do not pay the rent on time. The landlord can only do so if your rental agreement or lease has a late fee provision. Some landlords will waive the late fee if there is a good reason for the rent being late, and if you have been responsible in other ways.

What happens if I cannot pay the entire amount of the rent on time?

You will violate your lease or rental agreement if you do not pay the full amount of your rent on time. If you cannot pay the full amount, you may want to offer to pay part of the rent. Be careful with this. The law still allows your landlord to take your partial payment and still give you an eviction notice.

If your landlord is willing to accept a partial rent payment and give you extra time to pay the rest, it is important that you and the landlord agree on the details in writing.

11. Can my landlord raise the amount of my security deposit once I have already moved in?

If you have a lease, the security deposit cannot be increased unless it is written in the lease that an increase in the security deposit is allowed.

If you have a rental agreement, the landlord can increase the security deposit unless the agreement does NOT allow an increase of the security deposit. The landlord must give you proper notice before increasing the security deposit. For example, if you are paying rent month-to-month, a 30 days’ advance written notice is required if there is an increase in the security deposit.

Your landlord cannot raise the amount of the security deposit, no matter what the rental agreement says, if your security deposit ALREADY equals two times the current rent for unfurnished units or three times the monthly rent for a furnished unit.

12. Can my landlord increase my rent amount after I have already moved in?

If you have a lease, your rent cannot be increased during the term of the lease, unless the lease allows rent increases.

If you have a rental agreement, your landlord can increase your rent, but the landlord must give you proper advance notice in writing. The written notice tells you how much the increased rent is and when the increase goes into effect.

If you have a month to month rental agreement, your landlord must give you 30 days prior written notice of your increase in rent.

If you live in an apartment unit in San Jose, you are protected under rent control laws. These laws state:

Your landlord may raise your rent only ONCE in a 12-month period
Rent increases usually cannot be more than 8% per year or up to 21% a year if the landlord did not raise the rent the previous year
You must file a complaint with the City of San Jose BEFORE the date the rent increase becomes effective

These laws do not apply to units constructed after September 7, 1979, single-family residences, duplexes, and condominium units.

13. When can the landlord enter my rental unit?

California law states that a landlord can enter a rental unit only for the following reasons:

In an emergency
When the tenant has moved out or has abandoned the rental unit
To make necessary or agreed-upon repairs, decorations, alterations, or other improvements
To show the rental unit to prospective tenants, buyers, or lenders, or to provide entry to contractors or workers who are to perform work on the unit
If a court order allows the landlord to enter

Except for emergencies or when a tenant has abandoned the unit, the landlord must give you reasonable advance notice before entering the rental unit. Generally a landlord may only enter during normal business hours, usually 8:00 AM to 5:00 PM on weekdays.

The law considers 24 hours advance notice to be reasonable in most situations. If your landlord violates these rules, talk to the landlord about your concerns. If that does not work, send the landlord a formal letter asking him/her to follow the rules. Lastly, you may want to talk to an attorney or legal assistance organization.

14. What can I do if I have signed a lease but I cannot stay the entire length of the agreement?

If you want to move out temporarily before your lease is finished, you can try subletting or assigning your rental unit. You cannot sublease or assign unless the terms of the lease allow you to do so. For example, if you want to leave the rental unit for the summer months, you can sublease the apartment, house, or duplex to another person. This way you do not have to pay the full amount of rent while you are away.

When you sublease your rental unit, you are creating a separate rental agreement between the new tenant and yourself. You are still responsible for paying the rent to the landlord, but your new tenant must pay rent to you.

If you want to move out permanently before your lease is over, you may want to assign a new tenant to the rental unit. An assignment is an agreement between the new tenant and you. However, the new tenant is directly responsible to the landlord, not you. For example, if you must move out of the rental unit for whatever reason, you can assign a new tenant to the rental unit so that you do not have to pay rent in a rental unit that you are not living in anymore.

BUT if the new tenant fails to pay rent or damages the property, YOU are still legally responsible to the landlord. In order for you to avoid this responsibility, the landlord, the new tenant, and you must agree that the new tenant will be solely responsible to the landlord. This agreement should be in writing. All parties must sign the written agreement.

Before you decide to sublet or assign, you should discuss your plans with your landlord in advance.

IV. REPAIRS AND RESPONSIBILITIES:

Tenant Responsibility
Landlord Responsibility
Repairs
Fixing Repair Problems
Retaliatory Actions

1. Am I responsible for repairs in the unit?

You are responsible for repairs of all damage if you do not fulfill your responsibilities as a tenant, if you abuse the rental unit, and if the damage is caused by anyone for whom you are responsible, such as family, guests, or pets.

You are responsible for the following list:

Keep the unit clean and sanitary
Use and operate gas, electrical, and plumbing fixtures properly
Get rid of trash in a clean and sanitary way
Not destroy, damage, or deface the unit, or allow anyone else to do so
Not remove any part of the structure, or allow anyone else to do so
Use the unit as a place to live, and use the rooms for their intended purposes

2. Is the landlord responsible for repairs in the unit?

The landlord must repair problems that make the rental unit unfit to live in. A unit may be unfit to live in if it is missing any of the following:

Effective waterproofing and weather protection on the roof and outside walls
Plumbing facilities in good working order, including hot and cold running water
Gas facilities in good working order
Heating facilities in good working order
An electric system, including lighting, wiring and equipment in good working order
Clean and sanitary buildings
Enough trash receptacles
Floors, stairways, and railings in good condition

3. What can I do when I find a problem that my landlord needs to fix?

It is best for you to first telephone your landlord and tell him/her what is wrong. Write a letter describing the damage or defects. Remember to date and sign the letter. Make a copy of the letter for yourself and send the original copy to the letter either by personally delivering it to him/her or by certified mail. You must give the landlord a reasonable amount of time to fix the problem.

"Reasonable time" depends on the problem. For example, if you have no heat in the summer, then it would be reasonable for the landlord to fix the heater in 30 days. But if you have no heat in the winter, the landlord should fix the heater within a few days.

4. What can I do if I do not hear from the landlord, or if he/she does not want to fix the problem even though I did not cause the damage?

If you live in San Jose, you can call the San Jose Rental Dispute Program at 408-277-5431. You can also sue your landlord in Small Claims Court and call a legal assistance organization or an attorney for help.

In order for you to win in court, you must meet the following conditions:

The rental unit must have serious habitability defects (these are the landlord responsibilities)
A housing inspector must inspect the unit, and must notify the landlord, in writing, of the landlord’s obligation to repair
The defects must continue to exist for more than 60 days after the housing inspector issued the letter to your landlord
Your family, guests, pets, or you did not cause the damage that needs to be fixed

5. Can I take any of the repairs into my own hands?

There are several ways in which you can make the repairs yourself. Keep in mind, each of the following actions has its own risks and requirements. Be very careful when you use one of the following methods. It may be helpful if you contact a legal aid organization before you try to use any of the methods below:

Repair and Deduct

This method allows you to deduct (take off) money from the rent to pay for repair of defects in the rental unit.

Examples of problems you could use the repair and deduct method include: leaky roofs or outer walls, plumbing or gas facilities that do not work, no hot or cold water, no heat or electricity, fire hazards, insects or rats, or unsafe floors, stairs or railings.

Let your landlord know about the problems BEFORE you repair and deduct. Inform the landlord by both telephone and letter about the problems. Give your landlord "reasonable" time to fix the damage.

If the landlord still has not fixed the problem, you can pay someone who is qualified to fix the problem. Remember to keep the receipt. When it is time to pay the next month’s rent, write a letter to the landlord saying that you spent some of your own money to fix the problem, and that you will be subtracting what it cost from the rent. Send this letter with your rent and repair bill to the landlord by certified mail. Remember to keep a copy of everything for yourself.

Things to keep in mind about the repair and deduct method:

The defects must be serious and directly related to your health and safety
The repairs cannot cost more than the amount of one month’s rent
You can only use this method at most, twice, in any 12-month period
Your family, guests, pets, or you must NOT have caused the defects that need repair

Withholding Rent

You are allowed to stop paying your rent or some of the rent if the landlord does not fix serious defects that violate the warranty of habitability. This too is very risky, your landlord may try to make you move (evict you). You may want to contact a legal assistance organization before you try this method.

In order for you to use this remedy, the defects or repairs that are needed must be more serious than the problems in the repair and deduct method. An example of these problems include: collapse of the bathroom ceiling, continued presence of rats, mice and cockroaches, no heat, plumbing blockages, exposed or faulty wire, or an illegally installed and dangerous stove. There are other defects not listed here that you may use in withholding your rent.

It is important that you take photographs and make videos showing the defects, have witnesses and copies of letters that you have written to your landlord about the problem.

The basic steps and requirements for using the rent withholding method are:

The defects must threaten your health or safety, remember these problems must be more severe than those in the repair and deduct method
Your family, guests, pets, or you must not have caused the problems that need to be fixed
You must inform the landlord both by telephone and letter
You must give the landlord reasonable time to respond
If the landlord does not respond to you, you can withhold some or all of the rent
You should save the withheld rent money and do not spend it. Expect to pay the landlord some of all the withheld rent once the repairs have been made.
You may want to put the withheld rent in a separate bank account. This is not required by law, but it is good for the landlord to know that you are not simply withholding rent just to avoid paying rent.

Abandonment (Moving out without the landlord’s consent)

If the problems are very serious so that they violate the implied warranty of habitability, you can move out even in the middle of your rental agreement or lease. Similar to the other methods listed above, this remedy is very risky. Abandonment might be used when the defects would cost more than one month’s rent to repair.

The basic steps and requirements to the abandonment method are:

The defects must be serious and directly related to your health and safety
Your family, guests, pets, or you must not have caused the defects that need to be fixed
You must inform you landlord by telephone and letter
You must give your landlord a reasonable amount of time to respond to you
If the landlord does not make the needed repairs within a reasonable period of time, you should write another letter listing your reasons for moving. Keep copies for yourself, and send the letter by certified mail.
Move out

6. What if my landlord threatens to and tries to evict me or raises my rent because I have complained about problems in the unit or used the repair and deduct method?

If the landlord tries to evict you because you have exercised a legal right, such as the repair and deduct method or you have complained of problems in the rental unit, his/her action is considered retaliatory. Contact a legal assistance organization if you feel that your landlord is using retaliatory actions against you. If your landlord raises your rent or tries to evict you within six months of you exercising the following actions, his/her actions may be considered retaliatory:

Using the repair and deduct remedy
Complaining about the condition of the rental unit
Filing a lawsuit based on the condition of the rental unit
Causing an appropriate public agency to inspect the rental unit

V. MOVING OUT:

Thirty-Day Notice

1. If I have signed a rental agreement, what do I need to do before I move out?

To end a periodic (for example, a month-to-month) rental agreement, you must give your landlord proper written notice before you move. If you pay rent monthly, you must give written notice at least 30 days before you move. You must follow these timelines unless your rental agreement allows a shorter notice period. California law requires a minimum of seven days’ advance notice to end any rental agreement.

2. What kind of notice must a landlord give me before I must move out?

A landlord can end a periodic tenancy with proper advance written notice in the same way that you would, if you planned on moving. If you pay rent monthly, your landlord must give you 30 days advance written notice.

When you receive a 30-day notice, you must leave the rental unit within 30 days after the date that the landlord served the notice. If the end of the 30-day period falls on a legal holiday, the notice period is extended.

3. What if I have received a 30-day notice, but I want to continue to live in the unit or I believe that I haven’t done anything to cause the landlord to give me a 30-day notice?

You can try to convince the landlord to withdraw the notice. Try to find out why the landlord gave you the 30-day notice. If it is something within your control (such as consistently paying rent late, or playing the stereo too loud), you can try to assure the landlord that in the future, you will pay your rent on time or keep the volume turned down.

If your landlord agrees that you can continue to live in the unit, it is important that your agreement with the landlord be in writing. If the landlord does not withdraw the notice, you will have to move out at the end of 30 days.

4. What if I have received a 30-day notice, but I do not leave at the end of 30 days?

The landlord can file an unlawful detainer lawsuit to evict you. An unlawful detainer is the beginning of the eviction process.

VI. EVICTION:

Reasons for Eviction
Three Day Notice
Illegal Landlord Actions
Proper Service

1. What are some reasons a landlord might use to evict me?

A landlord may evict you for any of the following reasons listed below and more:

Because you did not pay rent when it is due
Because you broke some part of the rental agreement
You did not move after the landlord gave you proper notice to vacate and the time period listed in the notice has passed

2. While I am being evicted, what are some of the things the landlord CANNOT do?

The landlord must follow court procedures. The landlord may NOT use any of the following methods during the eviction process:

Lock you out of your apartment
Shut off your utilities (water or electricity)
Remove outside windows or doors
Take your belongings in order to carry out the eviction
Call the police on you for trespassing. If the police are called, you should tell them that you are a tenant. If the police do not let you in, do not resist or break into the unit.

3. What is a three-day notice?

A landlord can use a written three-day notice for you to fix the problem or move out if you have done any of the following:

Failed to pay rent
Broke some part of the rental agreement
Damaged the rental property
Substantially interfered with the other tenants
Used the rental unit for an unlawful purpose

The three-day notice must state the reasons why you are being given the notice. The notice must also give you the option to correct the problems or state the amount of rent that is still due.

If you pay the rent or correct the problems within the three-day notice period, you may continue to live in the unit.

If you try to pay the rent amount after the three days, the landlord can either file a lawsuit to evict you or accept the rent payment. If the landlord accepts the rent payment, the landlord gives up the right to evict you based on late payment of rent.

If the problem cannot be fixed, you must move out within the three-day notice period.

4. What happens if I stay beyond the three-day notice and I do not fix any problems?

The landlord will file an unlawful detainer suit against you. The details of the unlawful detainer will be described in the next section.

5. What is proper service?

A landlord can serve you by three ways:

Personal service – To serve you personally, the person serving the notice must be over the age of 18. This person must hand you the service papers. If you receive a notice in the mail, it is not proper personal service. The notice period begins the day after you receive the notice.
Substituted service on another person – If the landlord cannot personally serve you, he/she can leave the service papers with another person of suitable age (usually over the age of 18) at your home or workplace. The person left with the service papers must have some kind of contact with you, such as the receptionist of your workplace, your spouse, or other family members. If there is substitution of service, the landlord must also mail you a copy of the notice.
Posting and mailing - If the landlord cannot personally serve you, or find another person who has contact with you to serve, the notice can be served by taping or tacking a copy to the apartment, house, or duplex in a noticeable place (such as the front door) and mailing you a second copy. The notice period begins the day after the notice is posted and mailed.

VII. UNLAWFUL DETAINER:

Responding to an Unlawful Detainer
Preparing for Court
Court Outcomes
Writ of Possession

1. How do I respond to an unlawful detainer lawsuit?

If you are served with an unlawful detainer complaint, you should get legal advice as soon as possible. You usually only have five days to respond in writing to the landlord’s complaint. You must file the correct legal document with the clerk of the court in which the lawsuit was filed. Usually, you respond by filing a written "answer."

Both your landlord and you will be sent a date, time, and place of the trial. If the fifth day falls on a weekend or holiday, you can file your written response on the following Monday or nonholiday.

2. What if I do not respond to the landlord’s complaint within the five days?

If you do not respond to the complaint within the five days, the court will enter a default judgment. The default judgment is a ruling by the court in favor or the landlord. The court has issued a judgment that requires you to follow through with the landlord’s demands. Usually this means you must move out.

The judgment also allows the landlord to get a writ of possession. A writ of possession is described later in this section. The court may also award the landlord unpaid rent, damages, and court costs.

3. What should I do before I go to court?

Before you appear in court, you must carefully prepare your case. Among other things, you should:

Decide how you present the facts that support your side of the case, whether by witnesses, letters, photographs, video, or other evidence.
Have at least four copies of all documents that you intend to use as evidence. These copies go to the judge, the landlord, yourself, and your witnesses.
Ask witnesses to testify at the trial, if they will help your case. You can subpeona a witness who will not testify voluntarily. A subpeona is an order from the court for a witness to appear in court.

4. What happens if the court decides in my favor?

If the court decides in your favor, you will not have to move. The landlord may be ordered to pay your court costs and your attorney’s fees. However, you will have to pay any rent that the court orders.

5. What happens if the court sides with the landlord?

If the landlord wins, you may be ordered to pay the landlord’s court costs and attorney’s fees. You must also pay for any proven damages, such as overdue rent, or the cost of repairs if damage was done to the unit. The court will also issue a writ of possession to the landlord. The landlord can deliver this legal document to the sheriff. The sheriff will serve you with a copy of the writ of possession. This document gives you five days to move out after you have been served.

6. What happens if I do not move out after I have been served the writ of possession?

The sheriff will return and physically remove you from the unit. If your belongings are still in the unit, the sheriff may either remove them or have them stored by the landlord, who can charge you reasonable storage fees. If you do not reclaim your things within 18 days, the landlord can mail a notice to pick them up, sell your things, or keep them (if their value is less than $300.)

Sample Demand Letter for Your Security Deposit

(Date Mailed)

Dear (Landlord’s Name):

As you know, until (Move-out date), we lived at (former address) and regularly paid rent to you. When we moved out, we left the unit clean.

As of today, we have received only $(amount refunded if any or 0) of our $(full amount of deposit). You have not paid us the balance nor given us a written accounting explaining how you spent it.

Please be aware that we know our rights. If we do not receive our security deposit of $(_______________) by (date 10 days from when you mail this letter), we will regard your retention of these deposits as a showing of bad faith and will be forced to sue you not only for $(amount of deposit still owing) in deposit, but also for $600.00 in punitive damages as allowed under the law.

Very truly yours,

(Your Name)_____________

(Your Mailing Address)____

(City, State, Zip Code)_____

Resources You Can Contact For Help:

STATE DEPARTMENTS:

Department of Consumer Affairs
400 R Street 916-445-1254
Sacramento, CA 94814
800-952-5210

Department of Fair Employment & Housing
2000 O Street, No. 120
Sacramento, CA 95814
800-233-3212

Department of Real Estate
2201 Broadway
Sacramento, CA 95818
916-227-0864
916-227-0931

SANTA CLARA COUNTY:

Asian Law Alliance
184 E. Jackson Street
San Jose, CA 95113
408-287-9710

California Department of Fair Employment & Housing (DFEH)
111 N. Market Street
San Jose, CA 95113
800-884-1684
408-277-1264

Bay Area Legal Aid
2 W. Santa Clara Street, 8th Floor
San Jose, CA 95109
408-283-3700

Legal Aid Housing Project
480 N. First Street
San Jose, CA 95113
408-283-1540

Midpeninsula Citizens for Fair Housing
457 Kinglsey Avenue
Palo Alto, CA 94301
650-327-1718

Project Sentinel
7365 Monterey Road, Suite D
Gilroy, CA 95020
408-842-7740

Project Sentinel
430 Sherman Avenue
Palo Alto, CA 94306
650-321-6291

San Jose Fair Housing Law Project
111 W. St. John Street #315
San Jose, CA 95113
408-287-4663
TDD: 408-294-5667

San Jose Rental Dispute Program
4 N. Second Street, Suite 600
San Jose, CA 95113
408-277-5431

Small Claims Advisor
408-792-2881

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