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tahoe mommy · Apr 27, 2009, 11:09 PM

Specifically, our tenants lease expired 3/31/09. He sent a letter stating he would move out 4/2/09. He did not move out until 4/3/09 and did not return both the keys. (the tenant demanded their securtiy deposit back that day and when we sid they'd have to wait, they threatened to sue us and report us to the fair housing association) We had the locks rekeyed the next day. We decucted from the securtiy deposit 4 days unpaid rent and rekeying of locks.
Now the tenant is saying he does not owe us for 4 days rent since the lease expired 3/31/09 and are taking us to small claims court for $100 and either we pay up or go to court. I don't like being bullied or threatened and am preparted to go to court.
My question is, if the tenants lease expires and they still retain possession of the apartment, are they still obligated to pay for the days they stay?

I've researched the Cal Tenant Landlord handbook extensively trying to find info about what is considered unpaid rent, but it only states the rules for periodic lease agreements (month to month or week to week), but nothing on lease agreements, and giving notice.

LisaB4657 · Apr 28, 2009, 06:21 AM

Yes, the tenant is responsible for the rent for the days that they have possession of the apartment. I'd love to see him try to explain to a judge why he shouldn't have to pay rent for those days.

tahoe mommy · Apr 28, 2009, 07:46 AM

Thanks Lisa,
I'm just unsure as to how California stands on this since they tend to be tenant friendly. Ive written him letters saying I am more than willing to refund the part of his security deposit he thinks is due if he can show me where we are being unfair but he never communicates with me and only wants to go to court.
I'm hoping to find in the Cal handbook support that states those 4 days are unpaid rent for when I go to court. The book is very vague on this and there seems to be no clear cut answer.
So if anyone can find that I'd be very appreciative!

ScottGem · Apr 28, 2009, 08:00 AM

First I agree with Lisa. I'd like to be there when he explains to the judge why he shouldn't have to pay for the 4 days.

But lets go back a bit here. Does your lease say anything about an automatic renewal clause or notice prior to expiration? Generally, a tenant needs to give at least 30 days notice that they will not be renewing a lease even if its expiring. CA law does say that if a lease expires and the tenant does not move, it automatically goes to a periodic tenancy. Therefore, you could probably have charged him for the whole month of April. So if he persists in prosecuting this suit, tell him you will counter sue for the balance of the April rent and court costs. I believe you can win.

LisaB4657 · Apr 28, 2009, 09:22 AM

The tenant is full of it. No matter how tenant-friendly California law is, there is nothing that allows a tenant to live there for free. Like I said, I'd love to see him tell a judge why he doesn't have to pay rent for those 4 days.

As Scott said, charge him rent for the full 30 day notice period.

tahoe mommy · Apr 28, 2009, 03:59 PM

Thanks so much Scott and Lisa for your feedback!
Here's what our lease says about lease termination: Tenant shall vacate the premises upon termination of the agreement unless (I) LL and Tenant have extended this agreement in writing or signed a new agreeent (ii) mandated by local rent control law, or (iii) LL accepts rent from tenant (other than past due rent) in which case a month-to-month tenancy shall be created...
So although CA law says that if a lease expires and the tenant does not move, it automatically goes to a periodic tenancy, because I didn't "accept rent from tenant" for April, does that mean a month-to-month tenancy/periodic tenancy was not created? And was I then supposed to begin an eviciton process (which wouldve been time wasted since the tenant was out on the 3rd day, and locks rekeyed on the 4th day).
Here's the link to the handbook http://www.dca.ca.gov/publications/l...k/catenant.pdf
And its on page 57 that discusses "periodic tenancy moving out" but nothing on "lease" moving out.
Thanks again for your input... it is really an encouragment to me!

tahoe mommy · Apr 28, 2009, 03:59 PM

Oops... I meant page 47 (also see page 50)

ScottGem · Apr 28, 2009, 04:28 PM

Did he give you any notice of his intention to move, if so, how much?

ScottGem · Apr 28, 2009, 04:34 PM

What you need to look at is page 62. The top of the 3rd paragrpah under Moving at the end of the lease states; "If you continue living in the rental after the lease expires, and if the landlord accepts rent from you, your tenancy will be a periodic tenancy from that point on."

So, my view is that by staying past the expiration he converted the lease to a month to month. And therefore you can require he pay the full month.

LisaB4657 · Apr 28, 2009, 04:39 PM

Hold on, Scott. The OP did NOT accept rent from the tenant after the expiration of the term so a month-to-month was not created. The tenant then became a holdover tenant.

To the OP: Does your lease say anything about holdover tenants?

tahoe mommy · Apr 28, 2009, 04:54 PM

I don't see any mention in the lease of holdover tenancy. I've only found that if the tenant continues to stay in the rental after the lease has ended that the LL may begin the eviciton process (3day notice to quit, etc).
I did receive a 30 day notice letter of intent to vacate on 3/3, and that the tenant would pay till 4/2, but he is now saying he didn't have to write a 30 day notice to vacate since the lease expired on 3/31, and not only doesn't owe us 4 days rent, but now not even the 2 days.
(btw: all this spitefulness started by the tenant when they wanted their entire deposit back an hour and a half after they moved out, when we rightfully have 21 days, and threatened to report us to the fair housing board if we didn't pay up within 24 hours).

LisaB4657 · Apr 28, 2009, 04:59 PM

I haven't been able to find anything yet on California residential holdovers specifically, but according to one source a landlord is entitled to the "reasonable rental value" for the time that the tenant holds over if the lease doesn't provide for a holdover rent. The prior rent amount is considered "reasonable rental value".

I would retain the 4 days of rent from the deposit and let him explain to the judge why he's entitled to live there rent-free.

tahoe mommy · Apr 28, 2009, 07:27 PM

That sounds pretty good. What source was that from (to use at court as a reference)?

LisaB4657 · Apr 28, 2009, 07:34 PM

I found it in an online book on Real Estate Property Management in CA. It's based on case law but it didn't cite the specific case.

ScottGem · Apr 29, 2009, 05:21 AM

Two things you need to remember. First, if he does sue you it will be in small claims court, which is less formal. So you really don't need to come in there with case law and citing statutues etc. Besdies which, as the plaintiff, he needs to prove his case. He needs to show why you should not have charged him for those 4 days.