Publication Date: Friday, October 22, 2004
Can tenants waive rights?
Can tenants waive rights?
(October 22, 2004) Sometimes new laws contradict leases
by Martin Eichner
I've owned rental property for more than 20 years and am mystified about why some parts of a rental agreement are overridden by new laws and some are not. My rental agreements say a tenant and I must give each other a written 30-day notice to end the tenancy but a new law says I must give a 60-day notice for those tenants who have resided in the property for more than a year. Why do I have to give a 60-day notice and the tenant is only responsible for a 30-day notice?
On the surface, this aspect of landlord/tenant law may sound confusing, but there is a simple explanation. In general, a tenant cannot waive a right given to him or her by state law and a landlord cannot state conditions that are contrary to landlord/tenant state law. For example, if you had a clause that stated you would settle a security deposit within 35 days after a tenant vacated, that clause would not be valid since landlord/tenant law states that 21 days is the maximum time period even if the tenant agrees with the 35-day time period clause.
Civil Code §1953 lists the tenant rights that cannot be waived in a rental agreement or lease. These include the right to proper statutory notice, as well as the right to habitable or tenantable premises, restrictions on a landlord's right to enter the premises, and a proper and timely accounting of the security deposit.
Excellent sources of information are the Nolo Press publications, "Landlord's Law Book: Rights & Responsibilities" and "California Tenants' Rights." They should be available at your local bookstore or library. Contact your local housing mediation program for more information.
My landlord handed me a 60-day notice to move. I plan to move as requested but the last day of the notice falls on a Saturday. It would be very helpful to me if I could move on Sunday, but my landlord said the law required him to enforce the Saturday move out. Is this true?
o, in fact just the opposite is true. The standard procedure for determining when a termination notice expires is to begin counting the total number of days (either 30 or 60) starting with the day after the notice was served. If the last day of a notice to terminate falls on a Saturday, Sunday or holiday, a tenant has until the end of the next business day to vacate.
The same applies to a 3-Day Pay Rent or Quit Notice. If the third day falls on a Saturday, Sunday or holiday, a tenant has until the next business day to pay the rent or move. So, in your case, you can wait until the first business day after the Saturday to move. Discuss this with your landlord. If you still want the extra weekend time, contact your local housing mediation program for assistance.
One of my tenants says the renewal clause of his lease agreement is not valid. My leases provide for an automatic renewal if the tenant does not vacate at the end of the lease term. This tenant did not move out. The tenant says since a new lease was not signed he became a month-to-month tenant and plans to move soon. Are automatic renewal clauses allowed?
An automatic renewal clause is only valid if the renewal or extension provision is printed in at least eight point boldface type, immediately above the place where the tenant signs the lease. This requirement, detailed in Civil Code 1945.5, is to ensure that a tenant is fully aware of the rental obligation they are about to undertake. If your lease agreement meets this requirement then the automatic renewal clause is valid.
Of course, if it doesn't, then the tenant can disregard it. In this case, if the tenant remains in the unit and the landlord continues to accept the rent monthly, a month-to-month tenancy is in effect. Contact your local housing mediation program for more information.
About six months ago I allowed a tenant to sublet to a roommate whom I approved. The original tenant was approved to have only one dog, but the new roommate has now brought in a dog. The property owner does not want two animals in the apartment. Since the roommate is not on the rental agreement, can I still give her a notice to remove the other dog?
You do not have a relationship with the roommate since she was not added as a co-tenant to the original agreement. The original or prime tenant is in violation of her agreement by allowing the additional animal, so you can serve her a 3-Day Perform Covenant or Quit Notice to remove the second dog. You will have to proceed with legal action if the second dog is not removed. Contact your local housing mediation program to help you resolve the matter to avoid the need for legal action.
Project Sentinel, founded in 1974, provides landlord tenant dispute resolution and fair housing services in Northern California and administers rental-housing mediation programs in Palo Alto and Mountain View. Call (650) 856-4062 for dispute resolution or (650) 321-6291 for fair housing. Copyright 2004 Project Sentinel. All rights reserved.
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