In California, a residential tenant can be evicted for paying partial rent. This is true even if a landlord made a verbal agreement with a tenant to accept partial rent and not serve the tenant an eviction notice in accordance with California Code of Civil Procedure Section 1161. California state law requires a tenant to pay rent in full and on time.
When Rent Is Due
Rent is due on the date stated in the rental agreement. Most leases provide the due date for rent. Yet according to California law, specifically California Civil Code Section 1947, a residential lease can have "no usage" stating when rent is payable. When there is no due date stated in the lease, the rent is payable at the termination of the holding. This is true when the tenancy does not exceed one year. If the tenancy is by the month, rent is due at the end of the month.
Some rental agreements have a grace period written into the contract, but it is not a requirement. When a tenant does not pay full rent, the landlord can serve the tenant with a 3-Day Notice to Pay Rent or Quit. The landlord can serve this notice upon the tenant the day after rent is due. The exception is when the rental due date falls on a weekend or holiday. The tenant can comply with the lease by paying the rent within three days of when the notice was served. As an example, if a 3-day notice was served on a Friday, the tenant would have to pay rent on the following Wednesday. If the rule did not grant an exception for weekends, the tenant would have had to pay the rent on Monday.
Agreements Change the Situation
When a landlord agrees to accept a partial rent payment, gives the tenant more time to pay the remainder of the balance, and puts the agreement in writing, the landlord is bound by the agreement. A written agreement should contain the amount of rent the tenant will or has paid on time, the date by which the remainder must be paid, the amount of a late fee the tenant has to pay, and the landlord’s agreement not to evict if the tenant pays the amount by that date. Both the landlord and tenant should sign and date the agreement and have a copy of it.
Requirements for Eviction
A landlord who wants to evict a tenant for nonpayment or partial payment of rent must obtain a court order to get the unit back. The landlord is required to give the tenant notice of the eviction in the form of a 3-day, 30-day, 60-day or 90-day notice. The landlord must then file an Unlawful Detainer case in civil court.
Keeping Information Private
In 2016, California courts began masking the names of renters sued in eviction actions who have not been served with an eviction notice or seen the eviction actually proceed. California Assembly Bill 2819, signed into law that year, places such a case out of public view unless the landlord won the case within 60 days or won the case at trial. Before this law was instituted, landlords were using court records regarding sued renters to blacklist these tenants from rental housing.
Rules on Late Fees
If a landlord chooses to charge a late fee, he must show that the facts justified liquidated damages as compensation for a loss due to late rent. The landlord should show that he did an analysis to estimate the amount of the loss before charging the fee. The fee cannot be a penalty that is simply intended to punish the tenant for making only a partial payment. Usually California courts have upheld a late fee of between 5 and 10 percent of the monthly rent.
The Warranty of Habitability
State law requires all residential units in California to be habitable. A dwelling is deemed “untenantable” if it lacks effective waterproofing, plumbing and gas, a water supply under the control of the tenant or landlord that produces hot and cold running water, heating facilities, electrical lighting, and a number of other features, including a building and grounds kept free from accumulations of debris and vermin. A tenant has a duty and obligation not to damage the property. The tenant also has an obligation to maintain ordinary care of the unit.
When a landlord does not maintain a unit or building in good condition, he breaches the warranty of habitability. Breach of this warranty is a defense to an eviction case based on nonpayment of rent. Here nonpayment of rent includes partial payment of rent. The reason is that a tenant’s requirement to pay rent and a landlord’s warranty of habitability are mutual obligations. A landlord who wants to file an eviction case based on nonpayment of rent must first repair the property so it is habitable.
No Retaliation Allowed
A landlord cannot retaliate against a tenant for partial payment of rent by serving an eviction notice. Retaliation can be difficult to prove. The tenant bears the burden of proof by a preponderance of the evidence to show the landlord’s motive. Proof of retaliation can range from an illegal rent increase to a refusal to renew a lease.
Illegal Rent Increases
A landlord can abuse a tenant by illegally raising the rent without proper notice and in violation of state and local ordinances. When a landlord illegally increases the rent, she may claim a tenant made a partial payment of rent because the tenant did not pay the illegal increase. A tenant who is presented with such a concern can make a complaint to the California Department of Fair Employment and Housing, file a lawsuit in civil court and file a complaint or begin an investigation with her county or city. The latter is true if the county or city allows for such a process. Certain cities, such as San Francisco and Los Angeles, have city offices where residents can call attention to concerns about illegal rent increases.
City and county ordinances regarding rent control vary considerably. A tenant should read current local ordinances that pertain to his area to understand how the rules apply to his unit. As to state rent control, on January 1, 2020, state law AB 1482, the California Tenant Protection Act, took effect. AB 1482 caps rent increases for qualifying units at the lesser of these two options: 5 percent, plus the increase in the regional consumer price index, or 10 percent of the lowest rent charged at any time during the 12 months prior to the increase. Subject to the rent cap, the landlord may raise the rent only twice over any 12-month period.
City and county ordinances may offer higher protections, particularly for certain units, than AB 1482. AB 1482 does not supersede local ordinances. It adds to them, often covering units that local rules do not.
Read More: California Rent Control Law: An Overview for 2020
- California Code of Civil Procedure Section 1161 Summary Proceedings for Obtaining Possession of Real Property in Certain Cases
- California Civil Jury Instructions
- The Superior Court of California, County of Santa Clara: Self-Help Landlord/Tenant (UD)
- The Superior Court of California, County of San Francisco: Evictions (Residential)
- California Legislative Information: AB 2819
- California Civil Code, TITLE 4.5. LIQUIDATED DAMAGES [1671-1681], CHAPTER 1. General Provisions [1671- 1671]: Section 1671
- California Civil Code, TITLE 5. HIRING [1925 - 1997.270], CHAPTER 2. Hiring of Real Property [1940 - 1954.05]: Section 1942.3.
- California Civil Code, TITLE 5. HIRING [1925 - 1997.270], CHAPTER 2. Hiring of Real Property [1940 - 1954.05]: Section 1942.5.
- California Legislative Information: AB 1482
- California Department of Fair Employment and Housing: File a Complaint
- California Globe: Rent Control Proposition Officially Makes the 2020 November Ballot
- California Civil Code, TITLE 5. HIRING [1925 - 1997.270], CHAPTER 2. Hiring of Real Property [1940 - 1954.05]:1947
- Legal Beagle: California Rent Control Law: An Overview for 2020
- Legal Beagle: Landlord Retaliation in California: Rent Increases & Evictions
- Legal Beagle: Tenant Responsibilities in California: Things to Know
- Legal Beagle: Rental Agreements in California: Key Terms to Look For
- Legal Beagle: Termination of Tenancy in California: Types of Eviction Notices
- Legal Beagle: California Housing Code Standards: Is Your Residential Rental Safe?
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.