Pushed to the Edge? Know Your Tenancy Rights Against Constructive Eviction
One of the first questions tenant rights attorneys often need to answer for a potential client is whether someone is in fact a tenant, and whether certain circumstances alter their rights. Previous newsletter and blog articles have discussed issues like citizenship status and membership in a protected class. Here though, discussion shifts to a more basic question: what is a tenant anyway?
According to Civil Code § 1940(a), laws governing rental of real property, “to all persons who hire dwelling units located within this state including tenants, lessees, boarders, lodgers, and others, however denominated.” Civil Code § 1940(c) goes on to define “dwelling unit,” a term which is used frequently in the Civil Code, ‘Dwelling unit’ means a structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household.” There is an important limitation to the definition of a tenant though, and that is permanent residence. Civil Code § 1940(b) specifically excludes “transient” residents who stay in temporary lodgings like hotels. However, Civil Code § 1940.1 prohibits forcing a person to move out, re-register or do anything else to interfere with their remaining in a dwelling unit to force them to continue being treated as a transient resident.
According to Civil Code § 1943, “A hiring of real property, other than lodgings and dwelling-houses, in places where there is no custom or usage on the subject, is presumed to be a month to month tenancy unless otherwise designated in writing.” This is fairly clear guidance and sets up some expectations the law sets up later. As for those exceptions for lodgings and dwelling houses, Civil Code § 1944 states that, “A hiring of lodgings or a dwelling house 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.” The legislature was kind enough to provide an example, “Thus a hiring at a monthly rate of rent is presumed to be for one month.” And they even provided a rule for when the agreement fails to mention rent at all, which is the default from § 1943, “In the absence of any agreement respecting the length of time or the rent, the hiring is presumed to be monthly.”
With all that in mind, the big question on people’s minds most of the time is what happens after a lease ends? According to Civil Code § 1945, “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, nor in any case one year.” This means that if a tenant has signed a one-year lease with a landlord for which they pay rent monthly, and they remain for one extra day and send a rent payment that the landlord excepts, the tenancy will continue month-to-month. The law goes one step further through Civil Code § 1946, “A hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of that party’s intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding 30 days; provided, however, that as to tenancies from month to month either of the parties may terminate the same by giving at least 30 days’ written notice thereof at any time and the rent shall be due and payable to and including the date of termination. That means the landlord and tenant can expect that the tenancy will continue unless written notice is given by either party before the lease term ends. The landlord and tenant can negotiate a shorter time to give a notice that the lease will not be renewed, but they must do so at the time the tenancy starts.
Generally speaking, if someone pays rent to the person who owns the place where they live, they are a tenant. Whether they have a written lease can define how long they can expect to stay and how much they have to pay, but does not change their status as a person deserving tenant protections. And for those who are not tenants because of the temporary nature of their living situation, a landlord cannot force them to leave or move to prevent them from becoming a tenant. If a landlord is attempting to make distinctions about who is and is not a tenant, it might be worthwhile to consult with an experienced tenant rights lawyer to get a clear answer.
