Today, we will review eviction with respect to rented rooms. Occasionally, landlords will rent a room. To keep matters simple, I will propose a hypothetical situation, and based on that hypothetical situation, I will share what the law provides.
Disclaimer: I am not an attorney. I am a law student. On Thursdays, I work in an unlawful detainer (eviction) clinic under the supervision of a licensed attorney. On this page, I will share information about the code sections. If you are going to evict a tenant, I encourage you to talk to an attorney to get legal advice regarding your specific situation and facts. To support all statements of information, I will provide footnotes where you can find support in the codes.
Hypothetical Fact Situation
Let us assume the following are true:
You advertised a room for rent in your single family home. Several months ago (Feb 2020), someone responded to the advertisement, and you agreed to allow them to live in your house for $750 per month. You did not make a written agreement. This agreement is based on a handshake and continued rent.
In June 2020, the roommate stopped paying rent. June 2020 is after the State of California started “stay at home” policies for COVID. You have avoided trying to evict the tenant, because you heard that no one can be evicted at this time.
On September 15, 2020, you decided that you had enough, and you told the person: “You have 30 days, then I’m done. I want you to leave.”
You do not think they are going to leave and you want to be ready to file for an eviction. What are the things you must consider?
The law approaches a situation like this as a series of issues. There are several issues in the fact pattern above. We will address them one at a time.
What are the basic terms of an oral contract with a roommate?
If there is no written agreement, then the terms of the contract are implied by conduct. They key elements of a contract are usually the price, location, and length of rental. Usually, there is an express agreement in the terms of price and location. Length of the rental is often overlooked. When there is no fixed length for the rental agreement, the law presumes that the length of the contract is for the same length of time as the time between payments. 1Cal. Civ. Code, § 1944 Each time that the landlord accepts rent, the lease is extended for one more period. 2Cal. Civ. Code, § 1945. When the term is not expressly specified by agreement, then the term automatically renews at the end of each period. 3Cal. Civ. Code, § 1946.
In the fact pattern presented above, the landlord and the tenant agreed to rent on a monthly basis, but there was no agreement about for how long the tenant would stay. The law presumes that the landlord and tenant have a month-to-month agreement in this situation.
What notice is required to terminate an rental agreement with no length?
A landlord may not file an unlawful detainer action until the tenancy agreement has been terminated. 4Highland Plastics, Inc. v. Enders (1980) 109 Cal.App.3d Supp. 1, 7. The method for terminating an oral month-to-month agreement with no express term is specified in California Civil Code section 1946. The rules in section 1946 only apply if the tenant has occupied the property for less than 12 months. 5Cal. Civ. Code, § 1946.2
When the length of the agreement is implied by law, the agreement is presumed to renew unless either gives notice “at least as long before the expiration thereof as the term of the hiring itself, not exceeding 30 days.”6Cal. Civ. Code, § 1946. Because written notice may be given at anytime, the code implies that notice given at the time of rent collection may be oral.7Cal. Civ. Code, § 1946. This notice only acts to stop the automatic renewal of the contract.8Cal. Civ. Code, § 1946
For month-to-month agreements, a written notice may be given at any time, and the contract will end on the 30th day. 9Cal. Civ. Code, § 1946. When this happens, rent is due up to and including the last day, but not after. 10Cal. Civ. Code, § 1946.
Given the above, if our landlord wishes to end the tenancy agreement, the safest method is to:
- Put the notice in writing
- Give the tenant 30 days
- Include the above text in the notice
- Put the notice directly in the hands of your tenant
What is the content requirement of the notice?
Both the landlord and the tenant are able to give the other notice, but special language must appear in any notice provided by the landlord to the tenant. 11Cal. Civ. Code, § 1946. The State statute demands that words used must be “substantially similar” to the paragraph that follows; however, to be safe, just copy and paste the words that were provided by the statute, which I reproduce here: 12Cal. Civ. Code, § 1946.
State law permits former tenants to reclaim abandoned personal property left at the former address of the tenant, subject to certain conditions. You may or may not be able to reclaim property without incurring additional costs, depending on the cost of storing the property and the length of time before it is reclaimed. In general, these costs will be lower the sooner you contact your former landlord after being notified that property belonging to you was left behind after you moved out.Cal. Civ. Code, § 1946.
Landlord-to-tenant notices have been further modified by the COVID-19 Tenant Relief Act of 2020. When the notice makes a demand for payment, the COVID-19 Tenant Relief Act of 2020 adds special language.13Cal. Code Civ. Proc., § 1179.03, subd. (a)(1) The court must dismiss any unlawful detainer case that asks for rent and the notice provided to the tenant lacks the wording provided by the COVID-19 Tenant Relief Act of 2020. 14Cal. Code Civ. Proc., § 1179.03, subd. (b)(1)
The code provides language under two conditions. The first set of language applies when the tenant missed payments between March 1, 2020 and January 31, 2020. 15Cal. Code Civ. Proc., § 1179.03, subd. (b) Under this circumstance, the landlord must include the following clauses:
- the tenant has fifteen business days (days excluding Saturday, Sunday and holidays) to repay rent owed.16Cal. Code Civ. Proc., § 1179.03, subd. (b)(1)
- a list of each missed payment, the date it was due, and a total amount demanded.17Cal. Code Civ. Proc., § 1179.03, subd. (b)(2)
- notice that the “tenant cannot be evicted for failure to comply with the notice if the tenant delivers a signed declaration of COVID-19-related financial distress to the landlord on or before the date that the notice to pay rent or quit or notice to perform covenants or quit expires.”18Cal. Code Civ. Proc., § 1179.03, subd. (b)(3)
- the following text that must be duplicated exactly in at least 12-pt font size:
NOTICE FROM THE STATE OF CALIFORNIA: If you are unable to pay the amount demanded in this notice, and have decreased income or increased expenses due to COVID-19, your landlord will not be able to evict you for this missed payment if you sign and deliver the declaration form included with your notice to your landlord within 15 days, excluding Saturdays, Sundays, and other judicial holidays, but you will still owe this money to your landlord. If you do not sign and deliver the declaration within this time period, you may lose the eviction protections available to you. You must return this form to be protected. You should keep a copy or picture of the signed form for your records. You will still owe this money to your landlord and can be sued for the money, but you cannot be evicted from your home if you comply with these requirements. You should keep careful track of what you have paid and any amount you still owe to protect your rights and avoid future disputes. Failure to respond to this notice may result in an unlawful detainer action (eviction) being filed against you. For information about legal resources that may be available to you, visit lawhelpca.org.
The second set of language covers tenants who owe debt from the period between September 1, 2020 and January 31, 2021.19Cal. Code Civ. Proc., § 1179.03, subd. (c) The requirements for notices under this period are the same, but the state-mandated text changes to the following:
NOTICE FROM THE STATE OF CALIFORNIA: If you are unable to pay the amount demanded in this notice, and have decreased income or increased expenses due to COVID-19, you may sign and deliver the declaration form included with your notice to your landlord within 15 days, excluding Saturdays, Sundays, and other judicial holidays, and your landlord will not be able to evict you for this missed payment so long as you make the minimum payment (see below). You will still owe this money to your landlord. You should keep a copy or picture of the signed form for your records. If you provide the declaration form to your landlord as described above AND, on or before January 31, 2021, you pay an amount that equals at least 25 percent of each rental payment that came due or will come due during the period between September 1, 2020, and January 31, 2021, that you were unable to pay as a result of decreased income or increased expenses due to COVID-19, your landlord cannot evict you. Your landlord may require you to submit a new declaration form for each rental payment that you do not pay that comes due between September 1, 2020, and January 31, 2021. For example, if you provided a declaration form to your landlord regarding your decreased income or increased expenses due to COVID-19 that prevented you from making your rental payment in September and October of 2020, your landlord could not evict you if, on or before January 31, 2021, you made a payment equal to 25 percent of September’s and October’s rental payment (i.e., half a month’s rent). If you were unable to pay any of the rental payments that came due between September 1, 2020, and January 31, 2021, and you provided your landlord with the declarations in response to each 15-day notice your landlord sent to you during that time period, your landlord could not evict you if, on or before January 31, 2021, you paid your landlord an amount equal to 25 percent of all the rental payments due from September through January (i.e., one and a quarter month’s rent). You will still owe the full amount of the rent to your landlord, but you cannot be evicted from your home if you comply with these requirements. You should keep careful track of what you have paid and any amount you still owe to protect your rights and avoid future disputes. Failure to respond to this notice may result in an unlawful detainer action (eviction) being filed against you. For information about legal resources that may be available to you, visit lawhelpca.org.
Notice that the key difference between these texts is that the second text allows for eviction if the tenant fails to pay the minimum required payment. The minimum payment is 25% of all covered payments, and it must be paid in full on or before January 31, 2021. If the payment is not made by February 1, then the eviction action may be started.
Also note that the covered period for the first language overlaps the covered period for the second language. Given that both terms cover the period of September 1, 2020 through January 31, 2021, and given that they require very different behavior from the tenant, the landlord should avoid confusion by providing separate notices for any debts due from March 1, 2020 through August 31, 2020 and September 1, 2020 through January 31, 2021.
In the situation provided above, we have rent that became due in the period of March 1, 2020 through August 31, 2020. This triggers the first set of language requirements. We have one payment due in the second period. To be safe and to avoid confusion, the landlord should provide two notices that clearly apply only to the payments within each period.
Is there any special circumstance that arises because the landlord and the tenant occupy the same residence?
The rules for notice in section 1946 still apply. 20Cal. Civ. Code, § 1946.5, However, when the tenant rents a room in the house of the landlord, additional rules apply. 21Cal. Civ. Code, § 1946.5, & Cal. Pen. Code, § 602.3
In the special case where the tenant and the landlord occupy the same dwelling, the law states the following: “Upon expiration of the notice period provided in the notice of termination given pursuant to subdivision (a), any right of the lodger to remain in the dwelling unit or any part thereof is terminated by operation of law. The lodger’s removal from the premises may thereafter be effected pursuant to the provisions of Section 602.3 of the Penal Code or other applicable provisions of law.”22Cal. Civ. Code, § 1946.5, subd. (b) However, this special rule only applies when there is only one tenant renting a room. 23Cal. Civ. Code, § 1946.5, subd. (d) It does not apply if an owner rents out rooms to more than one tenant. 24Cal. Civ. Code, § 1946.5, subd. (d)
Under the special rules, a landlord may remove a tenant by unlawful detainer action, or the landlord may actually have the tenant arrested! 25Cal. Pen. Code, § 602.3 None of the special rules provided by the COVID-19 Tenant Relief Act of 2020 alter the ability to use California Penal Code section 602.3, which suggests that this is still a valid method of removing a tenant, even in the world of COVID.26Cal. Code Civ. Proc., § 1179.01.5, et seq.
In the fact pattern presented, the landlord only rents to one tenant. If the tenant stays beyond the 30-day notice period, he could call law enforcement and have him arrested under Penal Code section 602.3. The landlord should check with local law enforcement about any special procedures with this kind of arrest.
Can the court find the person guilty of “unlawful detainer”?
If the landlord proceeds with an unlawful detainer action, is it possible given that we are in the time of COVID?
Under the COVID-19 Tenant Relief Act of 2020, a court “shall not” issue a summons on an unlawful detainer complaint or enter a default judgment against the tenant, when the landlord complains that rent is due.27Cal. Code Civ. Proc., § 1179.01.5, subd. (b) Note that this only applies when the landlord seeks rent payments. And, this restriction only applies until October 05, 2020.28Cal. Code Civ. Proc., § 1179.01.5, subd. (b)
If the notice of eviction states that one of the reasons for eviction is that rent is past due, the landlord must also provide the tenant a copy of the “Declaration of COVID-19-related financial distress” so that the tenant has an opportunity to claim a COVID-related financial problem. 29Cal. Code Civ. Proc., § 1179.02
Whether a court can actually find a tenant guilty of unlawful detainer depends upon the facts. 30Cal. Code Civ. Proc., § 1179.03.05 Here is a list of situations in which the court may find the tenant guilty of unlawful detainer:
- The tenant would have been guilty of unlawful detainer before March 1, 2020. (For example, the tenant still owes rent for February 2020)31Cal. Code Civ. Proc., § 1179.03.05
- The landlord gave the tenant a Declaration of COVID-19-related financial distress, and the tenant failed to use it to claim a COVID-19 related problem.32Cal. Code Civ. Proc., § 1179.03.05
- Any of the at-fault causes listed in section 1946.2 of the Civil Code.33Cal. Code Civ. Proc., § 1179.03.05
- Any no-fault cause listed in section 1946.2 of the Civil Code except remodeling, unless the remodel is necessary to maintain the habitability of the rented space or would fix a health and safety issue defined in sections 1920.3 to 1920.10 of the Health and Safety Code. 34Cal. Code Civ. Proc., § 1179.03.05
- The landlord has sold the unit to another person.35Cal. Code Civ. Proc., § 1179.03.05
It’s interesting to note that the law regarding unlawful detainer actions appears to go against the increased protections provided to owners who share a residence with their tenant. Normally, just-cause is only needed when the tenant has been residing in the premises for over 12 months. However, under the COVID-19 Tenant Relief Act of 2020, no court may find a tenant guilty of unlawful detainer without one of the enumerated situations, and none of those situations allows for the natural end of an agreement or a termination without just cause.36Cal. Code Civ. Proc., § 1179.03.05
It is also interesting to note that subdivision (1) of Code of Civil Procedure section 1161 still identifies a tenant as being guilty of unlawful detainer “[w]hen the tenant continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to the tenant.” This is interesting, because section 1161 was updated by the COVID-19 Tenant Relief Act of 2020, but subdivision (1) of section 1161 does not appear as one of the accepted provisions in Code of Civil Procedure section 1179.03.05.
The tenant stopped paying rent during the covered period, so any attempt to evict should include the Declaration of COVID-19 related financial distress.
How do I file for an eviction at the end of the notice period?
All the forms you need are available on the website of your local court. If you need help filling out the forms, you can call the Monterey College of Law. Read more about their Evictions Workshop on their website.
Review / Conclusion
In the situation above, we have an oral agreement. Because no time is set for the agreement, we have a month-to-month contract, and the tenant must receive at least 30-days notice. The tenant has been living at the property for less than 12-months, therefore a 60-day notice is not necessary.
Normally, no cause is needed for tenants less than 12-months. However, under the COVID-19 Tenant Relief Act of 2020, a court may not find a tenant guilty of unlawful detainer except in a handful of situations. Our tenant did not stop paying rent until June 2020, so he or she was not guilty of unlawful detainer before March 1, 2020. The landlord has not yet given the tenant a Declaration of COVID-19 financial distress form, but the landlord can fix that when he issues his notice. The landlord can cite an “at-fault” cause of non-payment of rent, but the court may not issue a summons for this kind of case until October 5, 2020. The landlord has no valid “no-fault” cause. And, the landlord has not sold the property to another.
Therefore, to evict his roommate, a landlord in this situation will need to issue a 30-day notice. The 30-day notice must include the statutory language found in section 1946 of the California Civil Code. It must also include the statement of “just-cause” indicating that the tenant has not paid rent under the terms of the agreement. Because rent is cited as the cause, the landlord must also provide the tenant a Declaration of COVID-19-related financial distress. The notice must also be modified by the rules under modified by the language found in Code of Civil Procedure section 1179.03.
If the landlord provides 30-day notice, properly worded, with the Declaration of COVID-19 related financial distress, then on the 31st day, the landlord can file an unlawful eviction action or can call the police to have his roommate arrested. Because the tenant may return the Declaration and avoid eviction until February 1, the landlord’s best option is to exercise his rights under the Penal Code and threaten to have the tenant arrested and prosecute him or her criminally.
Stop renting out rooms
If you are tired of living with your tenant, then it is time to invest in another property. You can buy a new single family residence for yourself, or you can invest in a multi-family residence, which allows your tenants to live elsewhere. Either option is good, and I can help with both. For all your real estate needs, contact me.