After lease expires, rental agreement can get trickier 

This week’s question comes from Jared M. in San Rafael:

Q: “I had a two-year rental agreement with my landlord. I paid on time and all went well for the two years. When that expired about eight months ago, we just continued on in the same manner, paying the same amount each month, but without a new agreement. Now the landlord has stated that he wants to sell the home and wants me out as soon as possible and no later than the end of this month. What are my rights? Do I need to move out right away? I have kids in school that don’t get out until next month and I need time to find a new place.”

A: Jared, unlike San Francisco, you do not live in an area that is covered by a rent-control ordinance. Rent control provides tenants with a much greater set of rights and protections as it relates to their displacement. Under the law, when your lease expired and you continued living in the house, you became what is referred to as a holdover tenant. As such, your lease converted to one that is month-to-month, continuing with the same terms and conditions unless altered by the landlord in an appropriate manner, with proper notice.

This type of tenancy is referred to as an at-will tenancy, meaning your tenancy can be terminated with or without cause.

California Civil Code Section 1945, Renewal by Continued Possession and Acceptance of Rent, 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.” In situations where there has been no written agreement as to the term of a tenancy, pursuant to California Civil Code Section 1944, such a hiring of lodgings for an unspecified term is presumed to have been made for such length of time as the parties adopt for the estimation of the rent. Thus, a hiring at a monthly rate of rent is presumed to be for one month. In the absence of any agreement respecting the length of time or the rent, the hiring is presumed to be monthly.

Such a holdover tenancy is not automatic. Upon expiration of the lease, the landlord can expect return of the property as per the agreement. He or she just has to refuse your payment and give you a written notice to quit and then, if you hold over under those circumstances, the landlord can begin to institute eviction proceedings through what is often referred to as an unlawful detainer action.

The case Aviel v. Ng succinctly sets forth the application of the statute as follows: Should the landlord acquiesce in the holdover’s continued possession, the relationship (now being consensual) becomes an at-will tenancy. And once the landlord accepts the tenant’s payment of rent, the relationship presumptively becomes a periodic tenancy. The parties are presumed to have renewed on the same rental terms and for the same period of time as under the now-expired lease, not exceeding one month when the rent was payable monthly or, in any event, one year.

If rent is paid every quarter (every three months), and the landlord accepts a three-month payment, then the periodic tenancy would be three months. Therefore, if you have paid three months in advance, the landlord, without some legal cause other than seeking return of the premises to sell, must let you continue to enjoy the tenancy for the period already paid.

Pursuant to Civil Code Section 789, at-will tenants cannot be dispossessed instantaneously. The landlord’s termination must be preceded by at least 30 days’ written notice. California Code of Civil Procedure Section 1162 provides that notice can be provided in one of several ways including personal service upon you, service upon someone over age 18 who resides in your premises and, if you cannot be located or served through another as described above, then by conspicuous posting on the premises (usually nailed or taped to the front door).

So, Jared, it appears that your lease converted to an at-will periodic tenancy with a month-to-month duration. Therefore, your landlord needs to give you at least 30 days’ notice in writing before he has a right to repossession. Talk it over with your landlord. Many times, people renting their own home, not professionals, are unaware of these regulations and simply make a mistake. Perhaps showing your landlord this article will help your landlord better understand your rights and his obligations.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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