Q. Can a landlord or manager enter a tenant’s rental unit?
A. In cases of emergency or tenant abandonment or surrender, a landlord or manager may enter a rental unit without notice. Otherwise, a landlord may enter a unit only after giving reasonable written notice for a valid reason.  A valid reason would be to make a needed or agreed upon repair or alteration; to show the unit to prospective buyers, tenants, contractors, lenders or repair workers; to provide agreed upon services; to conduct an inspection related to a tenant’s security deposit, prior to their move-out; or pursuant to a court order.  A landlord may NOT enter a rental unit simply to inspect, even if the rental agreement allows for it.
    Noticed entry should be during normal business hours, unless the tenant consents.  The right of entry shall not be abused by the landlord or used to harass a tenant.  Reasonable notice has been deemed by the courts to be 24-hour notice.  The notice should be personally delivered, left with someone at the premises of suitable age and discretion, or left at, near or under the usual entry door where it is likely to be discovered.  It can be mailed, but the landlord should allow 6 days between mailing and entry. There is an exception that allows oral notice of entry during the sale of a property provided certain procedures are followed.

Q. What should a tenant do if they cannot pay the rent?
A. If a tenant knows in advance that they will be unable to pay their rent, due to a temporary situation, they should talk to their landlord immediately to work out an arrangement with the landlord. If the tenant is unable to make arrangements with the landlord to delay the rent payment then the tenant should make arrangements to vacate the unit as soon as possible, giving the landlord written notice. A tenant can be held responsible for paying the rent for a full 30-day notice period whether or not they are in the unit. A landlord may be willing to waive the 30-day notice if they can avoid a possible eviction. A landlord is not required to provide housing for those who do not pay the rent. It is better for the landlord and tenant to avoid legal eviction proceeding if at all possible.

Q. What can a landlord do if a tenant fails to pay the rent on time?
A. A landlord should talk to the tenant if at all possible to see if suitable arrangements can be made for the payment of rent. If arrangements cannot be made then the landlord can give the tenant a 3-day notice to pay rent or quit. This notice gives the tenant 3 days to pay the rent. You count the days beginning the day after the tenant is served with the notice. The landlord should keep the original notice. If the tenant fails to pay within the 3 days, the landlord can file an Unlawful Detainer complaint (or eviction) against the tenant in Superior Court.

Q. Can a landlord lock a tenant out for not paying rent?
A. No. A landlord may never lock a tenant out of their apartment. Also, a landlord may not shut off utilities or other services for failure to pay rent or any other reason. Actions such as these by a landlord will give the tenant the right to sue the landlord. A tenant may be locked out by the Sheriff if the landlord wins the Unlawful Detainer Action in court.

Q. Is a landlord obligated to make repairs in a rental unit?
A. The law requires every residential landlord to maintain the rental unit and common areas in a “habitable” condition, unless the tenants caused the problem. A tenant cannot give up this protection even if it says so in a lease or rental agreement. Habitable means that the rental unit does not have problems that can affect the health and safety of the tenants or reduce the normal use of the premises. The problem must also be substantial. Staff at Fair Housing can help you, but they do not decide what a breach of habitability by the landlord is. Habitability problems include, but are not limited to, the conditions listed in California Civil Code Section 1941.1 and Health and Safety Code Section 17920.3. Other building codes, reasonable security measures, and one wired phone jack. You can look up the code sections listed on www.leginfo.ca.gov/calaw.html or ask your local Code Enforcement Department in the city where you live to inspect. You should also take pictures and document the conditions.

A landlord can only maintain the unit in habitable conditions if the tenant informs him/her about any problems. Most tenants start by talking with the landlord about the problems while they are paying the rent. But a letter listing the problems and reciting the enclosed month’s rent for e.g. December, is harder for a landlord to deny receiving if s/he got the rent. Tenants should also cooperate reasonably with repairs during business hours or during any emergency. Tenants may waive their rights to a 24-hour notice of entry for repairs in order to get the listed problems fixed faster. A breach of habitability be the landlord begins when s/he first gets notice of the problem, even if the landlord has not had time to repair.

Q. What is a livable (tenantable) condition?
A. A rental unity is NOT livable if it substantially lacks any of the following:
- Roof, walls and windows that do not leak
- Working plumbing or gas facilities
- Water supply of hot and cold running water connected to a sewage disposal system
- Heating system that works
- Electrical lighting and wiring in working order
- Building and grounds kept clean, sanitary, and free from garbage, rodents, and vermin
- Adequate number of garbage cans or dumpsters in good repair
- Floors, stairways and railing in good repair

Other standards may be established by state and/or local city codes. Just because one of these conditions exists does not mean a unit is not livable.  The court will look to see if it substantially lacks these conditions. This is not a decision that can be made by San Joaquin Fair Housing.

Failure To Deliver A Habitable Rental Unit

Q. What can a tenant do if their unit is uninhabitable?
A. There are five general options for the tenant, but all require giving notice of the problems to the landlord first. It is better to do this in writing.

Move Out. Wait a reasonable time after giving notice for the landlord to do the repairs and move out. 30 days is presumed to be reasonable but it is not cast in stone. Warn the landlord in your letter requesting repairs that if s/he doesn’t do the repairs that you will be moving out because of the conditions.

Help Calling Attention to the Problem. A tenant is under no duty to move out of a rental unit in order to claim it is uninhabitable. Just because a tenant remained in a rental unit does not mean that the unit was therefore habitable. Many tenants do not have the resources to move quickly, and there is a severe shortage of decent affordable housing. Other remedies can help spur the landlord to repair. The tenant may call the local city code enforcement inspectors and health department for an inspection of the rental unit. Tenants can ask their neighbors in other units if they want to be inspected at the same time.

Repair and Deduct. Wait a reasonable time after giving notice for the landlord to do the repairs and move out. 30 days is presumed to be reasonable but it is not cast in stone. Pay to have plumbers, electricians or others to make the needed repairs that are listed in Civil Code Section 1941.1. Then deduct the repair cost from the rent by submitting a copy of the bill together with the remaining rent due. The costs deducted cannot be more than one month’s rent and no more than two times per year.

Withhold Rents. A tenant’s obligation to pay rent goes hand in hand with the landlord’s duty to maintain the rental unit in a habitable condition. But it is not like a light switch; it is not all-or-nothing. If the landlord is in breach of habitability, the tenant remains obligated to pay only the amount of rent that would be reasonable taking into account the defective conditions shown in court. Fair Housing staff can assist, but do not make this decision. The tenant should save all unpaid rents so that they can pay the rent that may be found owing by the court. The tenant and landlord may also negotiate the rent due while repairs are completed. Taking this option involves a risk of a tenant being evicted if the problem isn’t seen as serious enough or was tenant caused.

Sue for Damages. Tenants can sue their landlords for damages including a retroactive reduction in rent and the annoyance and inconvenience of living in bad conditions. Each tenant can sue for up to $7500 in small claims court. All of the cases from the same building can be set for hearing at the same time.

Caution to Tenants: You should contact San Joaquin Fair Housing, legal aide,  or a private attorney BEFORE using any of the above methods to insure you protect yourself and your tenancy.

Q. Must a landlord refund a deposit, which was left to hold a rental unit, if one of the parties changes their mind?

A. It depends on who changes their mind. If the landlord decides not to rent to the prospective tenant, then the deposit should be refunded in full.  If the prospective tenant changes their mind, then usually the landlord may keep the some or all of the deposit, up to the extent they are damaged by the tenant’s breach of the agreement.  The landlord should make a good faith attempt to minimize their damages by locating another tenant as quickly as possible.
Note: If the landlord can immediately re-rent the unit and loses no rent as a result of the tenant backing out of the deal, then the tenant should get their money back. The landlord can retain an amount equal to the rent they lose, plus the cost of advertising the unit again, if any.

Security Deposits
Civil Code Section 1950.5

Q. How large a security deposit can a landlord require?
A. In an unfurnished rental unit the landlord can require up to two times the monthly rent as security, although most landlords require less.  In a furnished rental unit, the landlord can require up to three times the monthly rent as security.  Everything paid to a landlord at move-in, other than rent, is considered security and is potentially 100% refundable.

Q. What charges can a landlord deduct from the security deposit?

A. A landlord can charge a tenant for cleaning, unpaid rent, and damage to the rental unit beyond normal wear and tear. Tenants are required to leave the unit as clean as when they moved in. This includes carpets, drapes, miniblinds, ovens, etc.  If the unit was dirty when the tenant moved in they are under no obligation to leave it clean.  Tenants are required to pay for damage, but not normal wear and tear, to the unit occurring during their tenancy. Pre-existing damage cannot be charged to present tenants.  Normal wear and tear is the degradation of a unit that occurs through its regular use.  Examples of normal wear and tear could be: the natural discoloration of walls over time or as a result of poor air quality; the “matting” down or wear of pile of carpeting in high traffic areas (not dirt); warping doors or windows; minor chipping of paint or scratches on counters; and any other aging from normal use that results in depreciation of the property.

Q. How long does a landlord have to refund a security deposit?
A. A landlord must send the tenant an itemized accounting of the amount retained from the security deposit and/or refund the deposit not retained within 3 weeks of the date a tenant vacates the unit. That is generally true, but the law now allows the landlord to send an interim accounting within that time if he has more work to be done and more deposit to account for. Then he needs to send a final accounting within 14 days of completion.
Q. What can a tenant do if the landlord keeps all or a portion of the deposit and the tenant disagrees with the charges?
A. If a landlord fails to return a security deposit or keeps a portion of the security deposit and the tenant disagrees with the charges the tenant can write the landlord a letter of demand. The demand letter should be sent certified mail, return receipt requested. The tenant should retain a copy for their records. If the landlord does not respond to the letter of demand within 10 days, the tenant can file an action in small claims court. If the tenant can prove that the landlord’s retention of the security deposit was willful the tenant could be awarded up to twice the amount of the security deposit.

Q. How can disputes over security deposits be avoided?
A. Keep copies of all rental records in one place. Showing that a tenant has the right to a return of security deposit requires preparation in advance. Start during a walk-thru just before you actually move in, even if the tenant was required to sign a lease or rental agreement that recited that the unit was in perfect condition. Make a list of the conditions in each room/area and have you and your landlord sign it. If the landlord won’t sign it, make sure you date it and give the landlord a copy. You can take pictures of the conditions before you move in so that the landlord cannot claim you damaged the items when you move out. By law, the landlord must conduct a walk-thru of the unit before you return the keys. The landlord is supposed to give a resident notice that he has the right to a “pre-move out” inspection within the last two weeks of tenancy. During the walk-thru, make a note of any complaint made by the landlord and fix/clean the problem before you turn the keys in. Take pictures of the things complained of after you fix them. Finally, after you have completely moved out, take pictures of each room/area showing the move out condition. Give the landlord a dated letter explaining what you did to fix any complaints and an address where to send your security deposit. Keep a copy of the notes and letters.

Q. Can a tenant use the security deposit for the last month’s rent?
A. A tenant may NOT use the security deposit as the last month’s rent without the landlord’s approval. Even if the lease or rental agreement separates the deposit and clearly indicates last month’s rent paid in advance. The law considers it all as security and cannot be used as last month’s rent without the landlord’s approval.

Q. What if the landlord sells the unit?
A. A landlord must transfer all security deposits to the new owner of the rental unit or refund to the tenant the security deposit less any legal deductions. If the landlord does not return the deposit to the tenant, the tenant may, upon vacating the unit, demand either the old or new landlord refund the deposit. If the old landlord returns the deposit to the tenant, the new landlord may require the tenant to post another deposit. If the old landlord does not return the deposit to the tenant, the new landlord may not require the tenant to post more than the maximum allowable deposit. The total deposit would include any amount given to the old landlord, whether or not transferred to the new owner.