I need an interpretation of these two clauses on my rental agreement, or if anyone knows a lawyer in the Orange County area that can provide some help (preferable cheap help) in this type of matter. The lease is for a 1 year period.


Term: This Agreement shall commence on either Just 1st, August 1st, or September 1st 2007. (circle one) No date is circled on the signed lease.


Lease: This agreement shall continue as a lease for term. The termination date shall be one year from the commencement date at 11:59pm. Upon termination date, Tenant agrees to continue on a month-to-month tenancy. To avoid month-to-month tenancy Tenant must provide to Landlord written notice of intention to terminate sixty days prior to lease termination date. Tenant shall be required to vacate the Premises in 60 days from providing to Landlord written notice of intention to terminate.

&


Tenant's hold over: If Tenant remains in possession of the Premises with the consent of Landlord after the natural expiration of this Agreement, a new tenancy from month-to-month shall be created between Landlord and Tenant which shall be subject to all of the terms and conditions hereof except that rent shall then be due and owing at $XXXX.XX per month and except that such tenancy shall be terminable upon sixty (60) days written notice served by either party.

Basically my girlfriend and I are going to move and the landlord is saying that because we did not notify him 60 days before we intend to move that we are responsible for the rent for 60 days after lease termination date, Sept and Oct, or for 60 days from our notice to vacate.

Here are some questions pertaining to the two terms I quoted:

1. If I intend to move out at lease termination, Sept 1st, am I required to have notified him 60 days in advanced? Does the 1 year termination date not matter if I don't give notice?

2. If he nor I contacted each other regarding moving out, must we automatically go to month-to-month?

3. If the term goes month-to-month am I responsible for the 2nd month of rent if I only need to stay for 1 extra month?

4. The terms are contradicting the way I am reading it. Do I follow the terms in the 1st quote where I need to give written notice 60 days prior to leaving or do I vacate the premises at the lease expiration as stated in the 2nd quote to avoid a month-to-month?

5. By law, is the minimum amount of time allowable to give notice 30 days? Does this supersede the landlords requirement of 60 day notice? Is notice required if I was going to move out at lease termination anyway?

Thanks for any help, I've just been hit with a lot of stress recently this is adding to it.

edited to ask: Do the terms of the lease trump California Civil Codes?

1. Yes. You have to give 60 days notice that you are moving out, or else the lease automatically goes month-to-month, which also requires a 60-day notice that you are moving out.

2. Yes. That's what the lease says happens if you don't get told to leave by the landlord.

3. If you go month-to-month, you need to give 60 days notice. You will need to pay rent until the end of the notice time.

4. It's not contradictory at all. The lease ends in a year. If you do not want to go month-to-month, you tell the landlord 60 days before the end of the lease that you are moving out at the end of the lease term. If you do not give the 60 day notice, the assumption in the lease is that you want to go month-to-month.

5. No. You are stuck with the 60-day notice.

Simple terms: If you gave notice today, the earliest you can leave the apartment is the end of October. Generally, notices need to cover a rental period, which is why I say the end of October. You could try and see if he will accept it for Oct. 24th-ish, which would be a strict 60 days, but you may be stuck for all of October.

Okay. Let me introduce some of the California Civil Codes to see if I can change your mind. These are the actual codes quoted.


California Civil Code Section 1945

If a lessee of real property remains in possession thereof
After the expiration of the hiring, and the lessor accepts rent from
Him, the parties are presumed to have renewed the hiring on the same
Terms and for the same time, not exceeding one month when the rent is
Payable monthly, nor in any case one year.

Our rent has always been payable monthly. Does this say that if I remain in possession of the apt and if I give the landlord payment, the terms are only month to month and not to exceed one month? Does this law override his 60 day notice requirement which is trying to impose a two-month rental term?


California Civil Code Section 1945.5

Notwithstanding any other provision of law, any term of a
Lease executed after the effective date of this section for the
Hiring of residential real property which provides for the automatic
Renewal or extension of the lease for all or part of the full term of
The lease if the lessee remains in possession after the expiration
Of the lease or fails to give notice of his intent not to renew or
Extend before the expiration of the lease shall be voidable by the
Party who did not prepare the lease unless such renewal or extension
Provision appears in at least eight-point boldface type, if the
Contract is printed, in the body of the lease agreement and a recital
Of the fact that such provision is contained in the body of the
Agreement appears in at least eight-point boldface type, if the
Contract is printed, immediately prior to the place where the lessee
Executes the agreement. In such case, the presumption in Section
1945 of this code shall apply.
Any waiver of the provisions of this section is void as against
Public policy.

In my actual lease agreement there is no recital or mention regarding the provisions of the lease extension immediately prior to where I executed the lease.

My understanding of what this code is saying is that the lease extension provision my landlord typed up (60 days notice and forcing me into a month-to-month for at least 2 months) is voidable because there is no recital mentioning such lease extension provision immediately prior to where I executed the lease.

The 2nd to the last sentence "In such case, the presumption in Section 1945 of this code shall apply.", is saying that because the terms are voidable, we follow what section 1945 is saying which is that if I pay rent and the landlord accepts it, we are agreeing to move to a month-to-month tenancy not exceeding one month. So what if I don't pay rent and move out at the end of the termination date?

Is there a place near the section on automatic renewal that you initialed? If there is, and this goes to court, it will probably be upheld, and the landlord will be told to correct his lease in the future. The idea is that the information can't be hidden.

Look... the thing is that you signed a lease, which is a legally binding contract. It protects you, and it protects the landlord. The landlord can't just kick you out in the middle of the lease, but you also can't just up and leave. By not giving 60 days notice, you have broken the lease. You may be able to vacate the premises at the end of the lease, but the landlord is going to go to court and say that you broke the lease by not giving notice, and you are probably going to be ordered to pay something, whether you live there. Now, the thing that may help you is that the landlord is not allowed to double-dip, so if you can find someone who wants to rent the apartment when you leave, then you should be OK. But if it takes the landlord two months to find someone to rent the place, why should he suffer because of your actions?

is there a place near the section on automatic renewal that you initialed? If there is, and this goes to court, it will probably be upheld, and the landlord will be told to correct his lease in the future. The idea is that the information can't be hidden.

Look... the thing is that you signed a lease, which is a legally binding contract. It protects you, and it protects the landlord. The landlord can't just kick you out in the middle of the lease, but you also can't just up and leave. By not giving 60 days notice, you have broken the lease. You may be able to vacate the premises at the end of the lease, but the landlord is going to go to court and say that you broke the lease by not giving notice, and you are probably going to be ordered to pay something, whether or not you live there. Now, the thing that may help you is that the landlord is not allowed to double-dip, so if you can find someone who wants to rent the apartment when you leave, then you should be ok. But if it takes the landlord two months to find someone to rent the place, why should he suffer because of your actions?

Can you please cite California law or civil code that shows this? There is nowhere on the lease where I have initialed acknowledging the automatic renewal terms.

I understand that I signed a lease and it is a binding contract but it can only be bound by what state law allows so please prove to me that the civil codes I quoted have no bearing.

So. Cal Gunner:

I didn't have time to read through everything you've posted. From what you included in your first post, quoting your lease, it sounds like a legit lease. Most likely it would hold up in court if you or the landlord decided to go after one another. You would certainly be well within your rights to bring any and all evidence to the court to present your side of the story and make your case. In my experience (not in CA) in these types of cases the judge often puts heavy emphasis on INTENT. Why didn't you give notice? What were you INTENDING to do by not giving notice??

The holdover part you quoted doesn't apply at all in this situation. That's if you gave notice and then didn't move when you said you were going to. So don't even read that part. I think that's where you're getting a lot of your contradictory information.

About all you can do at this point is either pay up and then go back and sue the landlord on the basis that their lease is unlawful. Or bail out and hope they don't sue you.

Hope that helps.

I go along with Froggy and Mommy. You signed the lease. The lease clearly (even if not clear to you) states that 60 days notice is required to terminate the lease. You are therefore responsible for rental for 60 days from notice. The only thing that would change that is if the landlord re rented the unt before the 60 days.

You can nitpick the letter of the law, but Mommy is correct. Housing court is more informal and looks more at intent than the letter of the law.

So. Cal Gunner:
In my experience (not in CA) in these types of cases the judge often puts heavy emphasis on INTENT. Why didn't you give notice? What were you INTENDING to do by not giving notice????



To be honest, the relationship between the landlord and my girlfriend and I (the tenants) were supposed to be more informal than landlord and tenant. I found his place for rent because of a friend of mine who I've know for a long time. The landlord is my friend's girlfriend's brother-in-law. I actually know two of his sister-in-laws. In addition to that my girlfriend worked with his wife and we were also invited to their baby shower. So when the landlord and I spoke about moving in we had many verbal agreements where he said he would be lenient but wanted a lease to make it formal. He has verbally stated after the signing of the lease that 30 days notice would be okay but now that it is time to move he is going back on his word. So the intent was not to give notice but that 30 days was enough because my girlfriend and I were not completely sure about moving 60 days prior to termination date.

His stated that he would be lenient with us because we are college students and that he understood how "it is".

So when the landlord and I spoke about moving in we had many verbal agreements where he said he would be lenient but wanted a lease to make it formal. He has verbally stated after the signing of the lease that 30 days notice would be okay but now that it is time to move he is going back on his word. So the intent was not to give notice but that 30 days was enough because my girlfriend and I were not completely sure about moving 60 days prior to termination date.

His stated that he would be lenient with us because we are college students and that he understood how "it is".

I still stand by my statement that you have two choices. Pay up and sue him. Or bail out and hope that he doesn't sue you.

I completely understand your frustration. That's where people come up with "unwritten rules" like, "don't do business with family or friends". What seems like a good idea initially often winds up going down hill and people are mad and feel like they've been taken advantage of by someone who they thought was a "friend".

You can certainly bring to the court's attention (if it comes to that) any verbal agreements that the two (three?) of you had. If he admits that he agreed to that they judge may enforce it. If he says, "I never said that", then it's your word against his and the judge will JUDGE who he believes, along with what the contract says and the law says.

I guess my main point is that this isn't a clear-cut, slam-dunk case if it goes to court. For either side. It will come down to who and what the judge believes based on contracts, laws, intent and now, also, verbal agreements (although verbal agreements as "addendums" to a written contract are pretty shaky.)

Your lease may even state that no verbal agreements "count". That the lease is the complete and total agreement between you.?

Hello - I am in the same situation as you. I gave 60 days notice but moved out in 57 days. I had lived in the unit for over 2 years and after the first year I went to a month-to-month. They charged me 3 days unpaid rent as well as took out additional money for other bogus charges. I am in the process of taking them to small claims. What happened with your case if you do not mind sharing the information. Many thanks.

Hello - I am in the exact same situation as you. I gave 60 days notice but moved out in 57 days. I had lived in the unit for over 2 years and after the first year I went to a month-to-month. They charged me 3 days unpaid rent as well as took out additional money for other bogus charges. I am in the process of taking them to small claims. What happened with your case if you do not mind sharing the information. Many thanks.

I ended up going to an attorney who only represents tenants and got some legal advice. The attorney said that it was correct that landlord and tenant could opt for a longer tenant notice to vacate than the state required so the 60 day notice would likely hold up (can't agree to less than 30 days though). If I were to leave early the landlord was to minimize his loss or something by trying to find a tenant (would be hard to prove he wasn't trying though).

According to the attorney, I had to right to move out right away because of the ant infestation problem that I informed the landlord about that went unfixed. I also had the right to sue the landlord for damages for the months I had to live with the ant infestation.

The landlord ended up dropping the case and we stayed until the end of Sept which gave landlord 45 or so days notice. If he wanted to pursue than I would have brought up the ant problem.

If you live in California, I believe for month to month agreements you would only be required to give 30 days notice. The attorney mentioned that it doesn't make sense to require 60 days notice in a month to month tenancy. Try calling around for an over the phone consultation. Do you have a written or verbal lease agreement? If written what does it say about the month to month tenancy?

Edited to add: There were inconsistencies in the lease that the attorney pointed out as well but that doesn't really answer your question.

Yes, I'm in LA, CA.

My lease reads the same way your lease did. That after my lease expired I would go month-to-month but still had to give 60 days. I thought is was cheap of them to take 3 days. So basically I will lose this one?

My bigger concern (why I am taking them to small claims) is because I asked for a final walk through in my termination letter which was denied. I was told it was unnecessary and only a $75 cleaning fee would be taken. I specifically asked about the carpets and my PM told me they were old when I moved in so they would replace anyway at no cost to me.

After the fact, they deducted a chunk of my security deposit for carpet replacement because I had 2 dogs and they are claiming the carpet was new when I moved in and it is CA law to always replace carpet after a tenant lives there with pets.

I am suing my landlord but now she is counter suing me.

Yes, I'm in LA, CA.

My lease reads the same way your lease did. That after my lease expired I would go month-to-month but still had to give 60 days. I thought is was cheap of them to take 3 days. So basically I will lose this one?

My bigger concern (why I am taking them to small claims) is b/c I asked for a final walk through in my termination letter which was denied. I was told it was unnecessary and only a $75 cleaning fee would be taken. I specifically asked about the carpets and my PM told me they were old when I moved in so they would replace anyways at no cost to me.

After the fact, they deducted a chunk of my security deposit for carpet replacement b/c I had 2 dogs and they are claiming the carpet was new when I moved in and it is CA law to always replace carpet after a tenant lives there with pets.

I am suing my landlord but now she is counter suing me.

What can she counter sue you for? My attorney said that in small claims, if there is little written evidence by either party, the judge may go on who seems more reasonable or seems to be telling the truth. He also said judges tend to lean towards tenants but this may only be opinion.

Does your landlord have other property she is renting adjacent to your place? Might be helpful to get a written statement from her other tenants to help your case. I also don't believe your landlord can deny you a walk through if you request one. Might need to start reading up on some of the CA civil codes.

I don't know of a CA law requiring replacement of carpet if you have pets. My previous apartment was with a big company and we had pets in the lease agreement. They charged for carpet cleaning but I guess that also depends on how bad the carpet is at moveout.

Did you take any pictures prior to moving out? The landlord will likely have to prove either that a) the carpet was new at move in by showing receipts or b) that the carpet was too damaged to have cleaned.

Hello - I am in the exact same situation as you. I gave 60 days notice but moved out in 57 days. I had lived in the unit for over 2 years and after the first year I went to a month-to-month. They charged me 3 days unpaid rent as well as took out additional money for other bogus charges. I am in the process of taking them to small claims. What happened with your case if you do not mind sharing the information. Many thanks.

Um, you gave 60 days notice, but moved out 3 days early and you are questioning them charging you for those three days? I hope you have better grounds for disputing the allegedly "bogus" charges, because you are going to lose on the 3 days rent.