[akushkovi]

I'm in San Diego, California and I was initially on a lease, which expired over year ago so I am now month to month. The lease stipulates that if the lease expires without renewal the terms of the lease still apply in the month to month situation. The lease also stipulates that the tenant shall provide the land lord with a 60 day notice of intent to vacate.

I think that this is unreasonable and I can't find a specific reference to the legality of this in California but have received the general opinion that California only requires a 30 notice by law and that the law supersedes the written agreement.

Can anyone confirm or deny this with a high degree of confidence?

[RickJ]

You are right, it is 30-days (assuming your rent payment period is monthly); and yes, the law applies despite his requirement of a 60 day notice. Here is a reference to share with him:
Moving Out - California Department Of Consumer Affairs

[LisaB4657]

I think you'd better speak to an attorney in California before you rely on giving just a 30-day notice. The general law is that if a written residential lease expires, the tenant continues as a month-to-month tenant but under the same terms and conditions as the previous written lease. In addition, that lease you signed provides that you agree to continue at the same terms and conditions. I know for a fact that this is the law that applies in NJ. I'm sure that you can find an attorney in your area who will give you a free consultation and answer this question for you. It might be worth a phone call to save yourself a month's rent.

[RickJ]

I'm glad Lisa added to this. California may be different than in my State, where the law supercedes the lease regardless of whether both parties agreed or not.

I suppose it may very well be the case that in California, your both agreeing to the terms binds it.

[ScottGem]

You might want to check this site for info about your rights:

Rights & Disputes - Resource Center

[akushkovi]

Thanks guys, I do know that here in California your 30 day notice does not have to match up with your month to month rental period. You can give notice on any day of the month, say the 10th, and are only responsible for the rent through the 10th of the following month, or 1/3.

[excon]

Hello akush:

The question is, can a lease supersede state law? In my view, the answer is no. If it could, why have a law in the first place?

It is a general concept in law, that one cannot sign away their rights under law. That means, for example, even if you did sign an agreement with your friend that requires you to pay him 500% interest on a personal loan, the courts won’t uphold it, because it violates your rights under state usury law. Therefore, if under California law, a tenant is only required to give 30 days notice, then In my opinion, a landlord cannot require a tenant to provide more than that.

Below is a digest of California law:

>>>You must give the landlord the same amount of notice as there are days between rent payments. This means that if you pay rent monthly, you must give the landlord written notice at least 30 days before you move. If you pay rent every week, you must give the landlord written notice at least seven days before you move.<<<

excon

PS> I'm highly confident in my response. However, I AM an exconvict who was equaly confident that I wouldn't get caught.

[LisaB4657]

Sorry, Excon. I have to disagree with you on this one. California Civil Code Sec. 1945 states: "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."

This means that the tenant becomes a month-to-month tenant, but at the same terms and conditions as the prior written lease.

http://www.leginfo.ca.gov/cgi-bin/di...le=1940-1954.1

Akushkovi, I think that if you do not give 60 days notice your landlord will be entitled to hold you responsible for an additional month's rent.

[ScottGem]

Let me interject something here. The Digest that excon posted says;

>>>You must give the landlord the same amount of notice as there are days between rent payments. This means that if you pay rent monthly, you must give the landlord written notice at least 30 days before you move. If you pay rent every week, you must give the landlord written notice at least seven days before you move.<<<

The key phrase here is "at least". This means you cannot give less notice than the rental period. However this doesn't mean that a lease cannot specify a longer period. If state law said the maximum notice was x, that might supercede. But if it only sets minimum limits, then a lease with longer limits would be valid.

[CaptainForest]

Let me interject something here. The Digest that excon posted says;

>>>You must give the landlord the same amount of notice as there are days between rent payments. This means that if you pay rent monthly, you must give the landlord written notice at least 30 days before you move. If you pay rent every week, you must give the landlord written notice at least seven days before you move.<<<

The key phrase here is "at least". This means you cannot give less notice than the rental period. However this doesn't mean that a lease cannot specify a longer period. If state law said the maximum notice was x, that might supercede. But if it only sets minimum limits, then a lease with longer limits would be valid.

Scott raises some valid points to consider.