Real Estate

Rent Watch

Does a renter have a three-day right to rescind a lease?

edited by Martin Eichner

Q My partner and I went to check out a vacant apartment in a very attractive local rental community. We met with the management's leasing staff in the community's leasing office. We were happy with the rent amount and the other basic terms they described verbally, including a one-year lease. However, when they asked us to sign the lease we saw that it had a lot of pages with many terms and conditions.

We asked if we could take a copy home to review before we signed it, but the leasing agent said no, because the lease was a proprietary document. Basically, we were told to sign immediately, right there on the spot, if we wanted the apartment. We were told a copy would be sent to us after we signed.

We decided to go ahead and sign because we believed there was a law that allowed us to rescind the lease within three days, so we would be safe if it turned out we didn't like the lease details. As three days were passing, we asked for our copy but did not receive it. Then when we tried to notify management that we were rescinding the lease under the three-day rule, they told us there was no such law.

We have moved into the community because we didn't want to lose our deposit, but we still don't have a copy of the lease even though a month has passed. Were our rights violated?

A Unfortunately for you and your partner, you were relying on a very common misconception when you assumed you had three days to cancel the lease you signed. Certain contracts such as consumer contracts are by law subject to a right to rescind within three days after execution, but there is no such right under the laws governing residential rental agreements. You were bound by the lease as soon as you signed it.

Also, there is no law that obligated the leasing staff to allow you to have a copy of the lease before you signed it. However, their failure to allow you sufficient time to review the document prior to signature should have been a red flag for you.

Civil Code Section 1962 does require your new landlord to provide a copy of the signed lease to you within 15 days after you signed it. Since it has now been more than 30 days since you signed your lease, your new landlord has violated this statute. Section 1962 does not, on its face, render the lease void for failure to comply with the duty to provide a copy. However, you should document the landlord's failure to comply with an email or letter demanding a copy.

The landlord's failure to comply, combined with the failure to allow you a sufficient opportunity to review the document, will give you a strong argument that the many detailed provisions in the lease form are not enforceable against you.

Q My company owns and manages several large rental communities. After very strong encouragement from our local police department, I agreed to establish a "zero tolerance" policy for criminal activity by any of our residents. If a police call to one of our properties results in a police report naming a resident or if it results in a resident being arrested, that action constitutes "one and final strike" against the resident. That resident and anyone else living in the same unit will be immediately evicted. We have incorporated this policy into our rental agreements.

Recently, I heard on television that this type of policy might be viewed as discriminatory under the fair-housing laws. I'm not trying to discriminate against anyone. I'm just promoting safety by prohibiting crime in my complex and keeping good relations with the police. Do I need to reconsider this zero tolerance policy?

A This type of policy does raise a fair-housing concern because it may result in discrimination based on the policy's disparate impact. The most obvious type of discrimination is "intentional discrimination," such as overtly refusing to rent to Hispanics. However, discrimination can also occur when an apparently neutral policy or practice still has the effect of discriminating against a particular group of people when it is actually applied.

In your case, although you might not have the intent to discriminate against anyone at your property, a very broad "zero tolerance" policy may have the effect of singling out persons or groups protected under the fair-housing laws. For example, there is some evidence that certain ethnic groups are more likely to be stopped or arrested, regardless of whether they have engaged in actual criminal activity.

A female resident may find herself the victim of domestic violence when she is attacked by her fiancÚ. According to your policy, if the police are called, and they arrest the fiancÚ, everyone in the household including the female victim would be evicted. Under the "discriminatory effect" theory of discrimination, women are far more likely to be the victims of domestic violence than men. Moreover in California, California Civil Code Section 1161.3 specifically prevents evictions of domestic-violence victims because of the behavior of an abuser.

In some cases where the disruptive behavior is linked to a tenant's mental health disability, a tenant may request as a reasonable accommodation, a second chance to comply with the lease. Courts have found when the behavior is linked to a mental health disability, and the tenant can show that she is taking steps to modify her behavior to comply with the lease, a landlord may be required to accommodate the tenant by not evicting her and allowing her a second chance to comply with the lease.

We recommend that you modify your zero tolerance policy to narrow its focus to prevent these fair-housing concerns, for example by requiring a conviction or limiting it to recent criminal behavior on the premises, not just a mention in a police report or an arrest. The policy should also allow exceptions where victims of domestic violence or other innocent victims live in the same household, or where a reasonable accommodation is appropriate.

Q We have been experiencing an outbreak of bed bugs in one of our rental communities. Our exterminator inspected the entire property and then told us he would need to use a specially trained dog to sniff out the bed bugs in the individual units. We gave each resident a 24-hour notice that we would be entering each unit with a trained dog to inspect for bugs.

One of the residents came to our office after we issued these notices. She said that it would violate her religious beliefs to allow a dog to sniff around her unit and belongings. Our exterminator told us that the only alternative methods would be much more expensive. Can we require this resident to pay the extra cost for an alternative inspection, or are we limited because her religious beliefs are involved?

A The answer to this question requires a balancing act. Your legal duty to respect your tenant's religious beliefs must be balanced against your duty as a landlord to take timely and reasonable steps to maintain the habitability of the rental premises. Under Civil Code Section 1941, that duty requires you to provide premises free from vermin infestation to all your tenants.

If you give proper written notice under Civil Code Section1954, you have a right to enter the rental unit to address the vermin issue. A tenant would ordinarily have no right to object or refuse entry. Assuming you have correctly concluded that using a dog for the bed-bug inspection is an appropriate and effective means of inspecting for bed bugs, and that there is no effective alternative at the same cost, your plan does not constitute religious discrimination.

Our answer also assumes that all the tenants are being subjected to the same inspection procedure, regardless of their individual religious beliefs, and any tenant who objected to the use of a dog would have to pay the extra cost of an alternative procedure. Under these circumstances, your plan would be a reasonable effort to comply with your duty of habitability. Unlike tenants with disabilities, you have no duty to give special consideration to accommodate a tenant's religious beliefs; you are only required to avoid treating a tenant differently because of her religious beliefs. As a practical matter, we suggest that you allow this tenant to choose an alternative inspection method that you are willing to employ if she is willing to pay the cost, since denying her any choice at all would give the impression of unfair treatment.

Martin Eichner edits RentWatch for Project Sentinel, an organization that provides landlord-tenant dispute resolution and fair-housing services in Northern California, including rental-housing mediation programs in Palo Alto, Los Altos and Mountain View. Call 650-856-4062 for dispute resolution or 650-321-6291 for fair housing or email


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