Written by attorney Scott Robert Rights

Establishing the Landlord Tenant Relationship in San Diego, California

Tenant Application and the Rental Agreement in San Diego, California

Usually the first part of the process is begun with the rental application. Although there isn’t much that can be done by the time a landlord is seeking to evict a tenant, this subject is worth addressing because it will impact how eviction paperwork is completed. Following the letter of the law in each stage will increase the likelihood of success for any landlord.

During the application process, it is illegal to ask a potential renter about race, religion, sexual orientation, ancestry, national origin, marital status, familial status, any disability, or if anyone under 18 will be living in the apartment. The landlord can ask about the number of people who will be living in the unit to prevent overcrowding. The Uniform Housing Code provides restrictions on how many people can live in a certain amount of space.

The landlord can charge a screening fee, but it is regulated as stated in the California Civil Code. Important restrictions include a limit of the actual cost of screening, not to exceed $30 (adjusted for CPI inflation from 1998). An itemized receipt will be provided to the applicant stating the out of pocket costs and time spent in processing the application. If the applicant requests, a copy of any credit report will be provided to the applicant.

You generally don’t have to give a reason for not renting to someone, but if your decision is based partly or wholly on negative information in the credit report, then the landlord must provide written notice stating so, the name address and phone number of the credit agency, and a statement that the applicant has a right to request a copy of the report from the agency and dispute said report.

The landlord can charge a “holding" deposit to remove a unit from the rental market. If the tenant fails to execute a rental lease, the landlord can keep part, or potentially all, of a holding deposit.

The signing of a rental agreement finally creates the tenancy. It is important to note that agreements can be made orally, and it is worth having a clause stating that the contract is fully integrated and that the written contract is the only controlling instrument. The agreement may state a specific term, for example one year, or just be month to month. If an agreement is for a set term, say one year with rent due each month, then upon the expiration of the term, the lease becomes a month-to-month tenancy. This will be important in terminating the tenancy.

There is no such thing as a standard lease agreement. Although there are many forms printed by different groups, it can be very worthwhile to have your agreement reviewed by an attorney. It is difficult to keep track of all of the laws regulating lease agreements in California. For example, the Civil Code requires a Megan’s law disclosure, a lead disclosure included if the unit is built prior to 1978, and an asbestos disclosure for units built prior to 1981.

Another key point regards security deposits. Any agreement cannot refer to a security deposit as non-refundable. California law allows the landlord to deduct from a security deposit any unpaid rent, cleaning fee, or damages beyond normal wear and tear. Within 21 days of a tenant vacating, the deposit must be refunded or an itemized list of allowed deductions given along with any remaining deposit. If the tenant requests it, the landlord must do a walk-through with the tenant prior to the tenant vacating. The landlord is required to provide the tenant a written notice of this option after the tenant notifies the landlord of their intent to terminate the tenancy.

Late fees for a late payment are allowed if they are stated in the lease. They must be reasonably related to the costs. In order for a landlord to be able to recover the cost of a bounced check, the agreement must authorize this fee. It is acceptable for a lease to state that after a bounced check, the rent must be paid in cash for up to three months after a dishonored check. It is advisable to include a clause in the agreement that says that should the landlord accept a late rental payment it will not be considered a waiver of that term of the agreement. This is important for landlords who accept late rent or partial rent. Some tenants have argued that because the landlord routinely accepted late rent, the landlord waived that part of the agreement. They argue that the landlord should be estopped from terminating the tenancy for a breach of that part of the agreement since the landlord implied by their action that they weren’t enforcing that part of the agreement.

It would require many pages to cover every item that should be reviewed in a rental agreement. Many of the key items are covered above, but it is worth noting that the law restricts many terms, despite what is put into the agreement. The law regulates or restricts a landlord’s ability to enter a rental unit, increase rent, give notice to terminate the tenancy, make repairs, and maintain habitability, just to name a few.

Please see the next part of the "Guide" or for more information. The information on these pages is to help in understanding the legal process in some aspects of Landlord Tenant law. The information here is not the same as legal advice, which is unique to each set of facts. You must consult with a lawyer to determine the appropriate action in your specific case.

Scott R. Rights, Esq.

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