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Retaliation Is Against the Law, but Increase May Be Legal


Question: My husband and I, along with our three children, have been renting an apartment on a yearly lease basis for more than three years. About four months ago we began to have problems with a noisy and rude neighbor, who is a maintenance worker for the landlord. We complained repeatedly to the rental office to no avail. We then got word through our neighbors that the maintenance man bragged that he was going to get even with us for our complaints.

Two months ago, the manager served us with a rent increase for $50 citing a "small print" clause in our lease indicating that our lease is good for only four people and that an additional charge can be made for occupants beyond four in a rental unit.

My husband refuses to pay the extra rent, and we have been served with a three-day notice to pay rent or quit. This seems retaliatory, as we have always been a family of five.

Can they do this, and what are our legal options?

Attorney Steven R. Kellman replies:

There is a difference between "can they do this" and "do they have the legal right to do this." The problem is that a landlord has the power to serve such notices any time he or she wants, whether the notices are legal or not. Once served, the tenant must prove the illegality of the notice or suffer an eviction.

In this case, the actions of the landlord seem retaliatory for the complaints about the noisy employee and are a violation of your rights.

The landlord claims that the raise in rent is triggered by an excess occupancy. This is a weak position, because the excess occupancy has existed for more than three one-year leases. Thus, the so-called violation was probably waived and not a problem. Using it as an excuse will probably be a real problem for the landlord if the matter is properly presented to a judge.

Even though the rent raise seems unlawful, I would advise paying it "under protest" to avoid the eviction and then suing the landlord in Small Claims Court for the wrongful conduct. Retaliatory acts (raising the rent, attempting to evict, cutting services) carry a penalty, paid to the tenant, of up to $1,000 plus actual damages suffered for each wrongful retaliatory act proven by the tenant.

Attorney Ted Smith replies:

I side with the landlord. You need to pay the increased rent if you want to live there. Apparently the noisy neighbor is not bad enough to make you want to move.

The simple fact is that in a month-to-month tenancy, either party may terminate or change the terms of the tenancy for any reason, or even without a reason, so long as it is not an illegal reason.

Though it may be true that most landlords do not impose "per person rent," it is nevertheless legal as long as it is applied across the board without discrimination.

Under these facts, I believe you have not made an adequate case for retaliatory eviction, so your choices are to either pay the increased rent or vacate the premises.

In Renting to Family, Get It in Writing

Q: My mother wants to help our aunt rent her house to my cousin until he gets on his feet. I know that this is not a good idea, but I am hoping that I can at least get the agreement in writing and in a formal legal document. Where can I get a rental agreement form?

Property manager Robert Griswold replies:

I won't touch the family-renting-to-family issue, but I will strongly suggest that you get a rental agreement or lease form from either your local Board of Realtors or your local Apartment Assn. Though slightly different, forms from either group will offer your mother many benefits.

She should record their agreement in writing before your cousin takes possession of the home.

Pet Deposits Can't Exceed Legal Cap

Q: I am a renter who did not have a pet when I rented but later acquired one. I pay $895 monthly for rent and paid the owner a $1,000 deposit on our house. What is the maximum amount an owner can charge for a deposit? How much can we be charged for a pet deposit?

Griswold replies:

Under California Civil Code section 1950.5 (c), the total of all fees and deposits collected by owners for unfurnished rentals cannot exceed two times the monthly rental rate; they cannot exceed three times the rent for furnished rentals. In the event the tenant has a water bed, an additional security deposit of up to half a month's rent is allowed.

The California Civil Code goes to great lengths to very broadly describe the term "security deposit." Thus, though some owners use different terms, whether they call it a security deposit, a pet deposit, cleaning deposit and/or administrative fee, all such sums cannot exceed these maximum amounts.

Also, note that the owner cannot designate any or all of the security deposit as nonrefundable, per California Civil Code section 1950.5 (1). Prudent landlords do not quote separate security and pet deposits but merely collect a larger security deposit when allowing pets in their rental units.

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