Tenant Law Terminology/Definitions
- Attorney’s Fee
- Case Costs
- Constructive Eviction
- Illegal Eviction
- Implied Covenant of Quiet Enjoyment
- Implied Warranty of Habitability
- Just Cause for Eviction
- Loss of Use Damages
- Master Tenant
- Prevailing Party Attorney’s Fee Provision
- Prevailing Tenant Attorney’s Fee Provision
- Refund of Rent Paid Damages
- Rental Agreement
- Rent Board
- Rent Control
- Rent-Controlled Unit
- Rent Differential Damages
- Rental Unit
- Security Deposit
- Treble Damages
- Unlawful Detainer
- Wrongful Eviction
In a plaintiff’s lawsuit, the Attorney’s Fee is usually a set percentage of the total amount recovered by way of settlement that goes to the law firm to compensate it for the services it provided the client. This amount can also be actual Attorney’s Fees awarded to the law firm by way of judgment. If a law or a Rental Agreement awards Attorney’s Fees to the prevailing party and the lawsuit results in a judgment (usually after a trial), the prevailing party can then ask the court to order the losing party to pay the winning party’s Attorney’s Fees.
For example, if Plaintiff sues Defendant, the case settles for $100,000.00, Attorney’s contingency fee is 40%, and Attorney had advanced $5,000.00 in Case Costs (see Case Costs) on behalf of Plaintiff, then $40,000.00 ($100,000.00 × 0.4) would go to Attorney for Attorney’s fee, $5,000.00 would go to Attorney to reimburse Attorney for Case Costs, and $55,000.00 ($100,000.00 – $40,000.00 – $5,000.00) would go to Plaintiff. If, however, Plaintiff sues Defendant, obtains a jury verdict of $60,000.00 and incurs $100,000.00 in Attorney’s Fees and $25,000.00 in Case Costs advanced by Attorney, Plaintiff can recover the $60,000.00 judgment and, if approved by the Court, $100,000.00 for Attorney’s fees and $25,000.00 for Case Costs, for a total of $225,000.00. Thereafter, $60,000.00 would go to the Plaintiff, $100,000.00 would go to Attorney for Attorney’s Fees, and $25,000.00 would go to Attorney to reimburse Attorney for Case Costs. (See also Prevailing Party Attorney’s Fee Provision.)
Case costs (sometimes referred to case expenses) are the costs associated with bringing a legal case against one or more persons or businesses. If Case Costs are advanced (i.e., paid for) by the party’s attorney, these costs may also be referred to as advanced client costs.
Case costs, as distinguished from Attorney’s Fees, are all the legal expenses other than Attorney’s Fees incurred to prosecute a case. They can include:
- Postage expenses
- Deadline calendaring
- Software expenses
- Messenger fees
- Service of process fees
- Subpoena and witness fees
- Filing fees
- Court fees
- Jury fees
- Court and deposition reporter fees
- Expert witness fees
- Mediator fees
- Interest and costs on any funds the attorney borrowed to pay the client’s Case Costs
If a law or a Rental Agreement awards costs to the prevailing party, the prevailing party can ask the court to order the losing party to pay the winning party’s Case Costs.
- Constructive Eviction: A Constructive Eviction is a legal claim a Tenant can make if the conditions of a Rental Unit are so unacceptable that it would be unreasonable to expect an ordinary person to stay and continue to pay rent. The rationale is that the Landlord has so completely failed to meet the Landlord’s responsibilities to provide a Rental Unit worth paying for that the Landlord has effectively evicted the Tenant. This can happen when a Landlord neglects to perform maintenance or repairs after receiving notice that work must be done or fails to protect the Tenant from harassment by the Landlord, by the Landlord’s employees or representatives, or by neighbors who also rent from the Landlord (see Covenant of Quiet Enjoyment).
- Illegal Eviction: An Illegal Eviction is an eviction that fails to follow the laws relating to evictions in California or that does follow the requirements of this statute but is based on fraudulent actions or intent. To evict a Tenant who occupies real property (e.g., a house, apartment, or store) and who refuses to leave, the Landlord must give written notice following all appropriate laws, and then take the Tenant to court if the Tenant does not comply with the notice. If the Landlord engages in “self-help,” by, for example, changing the locks, throwing the Tenant’s possessions out, or chasing the Tenant away from the property, the Landlord has engaged in an Illegal Eviction. Similarly, if the Landlord follows the proper legal channels for a Landlord-move-in (aka an Owner Move-In or OMI) eviction but rents the property out on AirBNB rather than moving in (i.e., the Landlord commits fraud), the Landlord has also engaged in an Illegal Eviction. An Illegal Eviction can be an eviction conducted illegally, an eviction conducted in retaliation for a Tenant’s exercise of rights under the law (such as reporting violations of the warranty of habitability), or an eviction conducted with discriminatory intent.
- Implied Covenant of Quiet Enjoyment: All California Rental Agreements—whether written or verbal—contain several promises implied by law. These promises are obligations that exist even if not specifically contained in the agreement itself. One such obligation is the Implied Covenant of Quiet Enjoyment, which is set forth at California Civil Code section 1927. The covenant guarantees that when a Landlord rents to a Tenant, the Landlord will protect the Tenant’s ability to use the Rental Unit for its intended purpose against anything that might be done by the Landlord or anyone for whom the Landlord is responsible, including both the Landlord’s employees or representatives, or anyone else who rents from the Landlord. “Quiet enjoyment” means the Tenant’s ability to use the rented property for its intended use, such as living quarters. If something the Landlord does or fails to do prevents the Tenant from using the rental property for its intended use, the Landlord has breached the Implied Covenant of Quiet Enjoyment.
- Implied Warranty of Habitability: All residential Rental Agreements in California include a promise that the property rented is suitable for humans to live in safely. This guarantee exists even if it is not contained in the agreement. The warranty of habitability is set forth at California Civil Code section 1941. Standard requirements for habitable Rental Units are listed in California Civil Code section 1941.1 as well as California Health and Safety Code sections 17920.3 and 17920.10. NOTE: Commercial Tenants cannot claim that their Landlord breached the Implied Warranty of Habitability, as this warranty is implied in residential Rental Agreements only. However, commercial Tenants may be able to claim that the Landlord breached the Covenant of Quiet Enjoyment or another term of the commercial lease, depending on the severity of the habitability issues.
- Just Cause for Eviction: A Just Cause for Eviction is a legitimate, recognized reason for removing a Tenant currently occupying a Rental Unit. Except for some exceptions discussed in our explanation of the 2019 Tenant Protection Act, a Landlord must have just cause to evict most residential Tenants in California. If Just Cause for Eviction requirements apply to your tenancy, then your Landlord may not evict you unless they can prove you fall under one of the just causes under the law. If you live in a city or county with its own rent ordinance (e.g., San Francisco, Oakland, San José, Los Angeles, or any other city/county listed here), you may have more protections than what state law provides.
- Landlord: A Landlord is a person or business that exchanges the right to possess and use real property that the Landlord owns or manages, such as land, a building, or part of a building like an apartment, to the exclusion of others, for something of value. This exchange is usually for money (rent), but could be for goods, services, or another kind of promise of value. When giving over possession of the rental property to the Tenant, the Landlord may set limits on what the property can be used for and other terms to which the Tenant in possession must agree so long as the limits are not prohibited by law. In exchange, the Landlord accepts responsibility for ensuring the property is fit for the intended use the Tenant is paying rent for.
- Loss of Use Damages: See “Rent Differential Damages.”
- Master Tenant: A Master Tenant is a Tenant who rents property from a Landlord and then subleases part or all the property to a Subtenant. As far as responsibilities are concerned, the Master Tenant is a de facto Landlord to the Subtenant while simultaneously a Tenant to the Landlord. Rent ordinances (city rent-related laws) often contain special rules regarding people in this situation, so it is important to make sure all legal requirements are followed when choosing to sublease a Rental Unit.
- Prevailing Party Attorney’s Fee Provision: A Prevailing Party Attorney’s Fee Provision is a term or clause in a Rental Agreement stating that in the event of a lawsuit, the losing party must pay the winning party’s Attorney’s Fees. Once a party “prevails” (wins) and damages are calculated, the winning party may seek an order from the court requiring the losing party to pay the winning party’s fees if there is either a term in the Rental Agreement awarding fees to the prevailing party or language in a law that allows for such an award. Often, laws intended to prevent or punish harassment, discrimination, or other intentional wrongdoing include a Prevailing Party Attorney’s Fee Provision to encourage lawyers to represent victims of such conduct. Any contract term that requires a Tenant to pay a Landlord’s attorney fees is automatically understood by courts to be a Prevailing Party Attorney’s Fee Provision, therefore allowing a prevailing Tenant to also require the Landlord to pay Tenant’s attorney fees.
- Prevailing Tenant Attorney’s Fee Provision: A Prevailing Tenant Attorney’s Fee Provision is the portion of a law requiring a Landlord to pay a Tenant’s Attorney’s Fees if the Tenant wins a lawsuit but does not require a Tenant to pay the Landlord’s Attorney’s Fees if the Landlord wins the lawsuit.
- Refund of Rent Paid Damages: Refund of Rent Paid Damages is a Remedy a Tenant may claim against a Landlord who has violated the terms of a Rental Agreement. When a Landlord fails to provide utilities that are required by the Implied Warranty of Habitability or enforce the Covenant of Quiet Enjoyment, then the Tenant has, according to the law, paid for something the Tenant has not received and for which the Tenant therefore overpaid. This can be a partial refund when the Rental Unit continues to provide some benefit, or a total refund when the unit is entirely uninhabitable, such as when a Tenant must claim Constructive Eviction.
- Remedies: A Remedy is a method of making right the harm done to an injured party. This is most often accomplished in the legal system through an agreement or order by a third party with power over the wrongdoer, such as a judge, to pay money to the injured party. In certain cases, a court may order what is known as equitable relief, sometimes referred to as an injunction, which orders a party to do something or not do something. The latter is referred to as a Restraining Order.
- Rental Agreement: A Rental Agreement (also known as a lease) is a contract between a Landlord and Tenant, or a Master Tenant and Subtenant, to exchange the exclusive right to occupy and possess some portion of real property controlled by one party, for something of value from the other party. This thing of value may be money, goods, services, or something else the Landlord considers to be of value. The Rental Agreement may be oral with very basic terms, or it may be written with hundreds of promises by both parties to do or not do certain things, or anything in between. The important part when proving that an agreement was made is showing that both sides understood and accepted the promises being exchanged. One way to show that this understanding existed between two parties is to provide proof that one party used a property for some period of time, while the other party accepted something of value in exchange.
- Rent Board: Many local rent ordinances that establish Rent Control also have a local governmental agency given the power to make administrative rulings and set the amounts of annual rent control. San Francisco is one city with a Rent Board. The name, size, powers, and procedures of these agencies vary depending on the laws that set them up. Visit your local Rent Board website for more information.
- Rent Control: As the cost of housing often rises faster than the ability of Tenants to pay, many governments have instituted Rent Control, a law that caps the amount a Landlord may increase the rent in a given year. Typically, rent ordinances establish a formula or designate a governmental body to set how much a Landlord may raise the rent in occupied Rental Units each year. Most rent ordinances define a date before which all covered units are subject to Rent Control limits. Any newer buildings, built after that date, are not covered by Rent Control, and the Landlord is free to set rates as high as people are willing to pay. Other kinds of Rental Units not covered include many single-family homes, communal or dormitory housing, and short-term housing like hotels. The requirements for units to qualify for Rent Control vary widely, so researching your local Rent Control Ordinance is extremely important. Once a Tenant moves out of a Rent-Controlled Unit, the Landlord is free to raise the rent to the current market rate, so places that enact Rent Control also always require Just Cause for Eviction to prevent Landlords from removing Tenants simply to raise the rent on whoever replaces them.
- Rent-Controlled Unit: A residential Rental Unit that is subject to Rent Control, under a state rent law (statute) or a local rent law (ordinance).
- Rent Differential Damages: Rent Differential Damages are a measure of the harm a Tenant experiences after an Illegal Eviction from a Rent-Controlled Unit. Because the fair market rental value of Rental Units not subject to Rent Control generally increases far faster than the maximum rent for Rent-Controlled Units, being forced to move often seriously reduces a Tenant’s ability to find similar housing or could even leave Tenants homeless. When Tenants claim they have been Illegally Evicted, one type of money damages they ask for in a lawsuit is Rent Differential Damages. Rent Differential Damages are the difference between the current fair market monthly rent of a Rental Unit at the time of an illegal eviction, minus the monthly rent the Tenant was paying at the time of the Illegal Eviction, multiplied by the number of months the Tenant was planning to continue residing in the Rent-Controlled Unit had the Illegal Eviction not occurred. For example, a Tenant who was Illegally Evicted from a Rent-Controlled Unit with a monthly fair market rental value of $4,000.00, who was paying $1,000.00/month, and who was planning on living in the Rent-Controlled Unit for another twenty-four months (two years) would have Rent Differential Damages of $72,000.00 [i.e., ($4,000.00 – $1,000.00) × 24].
- Rental Unit: The rental property the Tenant takes possession of from a Landlord in exchange for rent. During the period of the tenancy, the Tenant has the exclusive right to possess the Rental Unit.
- Roommate: A Roommate is a person with whom you have some common tenancy interest. Typically, Roommates enter into a Rental Agreement with a Landlord, with all of them being treated together and separately as Tenants. This means that each co-Tenant is liable for paying the entire rent for the Rental Unit even if one of the Roommates is unable to pay. This is why Landlords typically require you to earn enough to cover significantly more than your share of the rent when applying to rent a unit with other people. Other Roommate arrangements can exist besides a co-Tenant relationship, such as when one Roommate acts as a Master Tenant and is responsible for all rent owed to the Landlord. In this case, the other Roommates are simply Subtenants responsible for only their smaller share of the rent.
- Security Deposit: A Security Deposit is a sum of money paid by a Tenant to a Landlord to secure against potential breaches of the Rental Agreement. The Landlord may use the Security Deposit to cover rent when a Tenant fails to pay on time or to pay for damage to the rental property caused by the Tenant. At the end of a Tenancy, the Landlord is required to return the balance of the Security Deposit to the Tenant within twenty-one days, minus any deductions for damages to the unit that go beyond ordinary wear and tear. Security Deposits can never be for more than the value of two months’ rent for unfurnished Rental Units or three months’ rent for furnished units. Security Deposits may not be used to repair conditions that result from ordinary wear and tear. A Landlord who wrongfully withholds from a Tenant any portion of Tenant’s Security Deposit is liable to the Tenant for a penalty of twice the amount wrongfully withheld.
- Subtenant: A Subtenant is a Tenant who, instead of renting from the Landlord, rents from another person or business that rents from the Landlord. In this situation, the Master Tenant is responsible to the Tenant for the Implied Warranty of Habitability and the Implied Covenant of Quiet Enjoyment. However, under certain circumstances, the Master Tenant’s landlord (the “Master Landlord”) may also be liable to Tenant for any breaches of the Implied Warranty of Habitability or the Implied Covenant of Quiet Enjoyment.
- Tenant: A Tenant is someone who provides something of value to a Landlord in exchange for the right to occupy, possess, and use real property to the exclusion of all others. Tenants are provided rights by the Rental Agreement they enter into with the Landlord, but also from state and local laws as well as customs and legal standards that date back to Medieval England.
- Treble Damages: Treble (triple) damages are available in certain types of lawsuits where lawmakers at the state or local level have decided that some conduct is sufficiently outrageous that it justifies an award of extra damages to punish the person responsible and deter others from doing something similar in the future. These kinds of damages are often available in cases involving intentional misconduct like severe harassment or where the harm involves discrimination against or harm to a marginalized or vulnerable victim such as a disabled person.
- Unlawful Detainer: Unlawful Detainer is the legal name for the formal legal process required to remove a Tenant in possession of a Rental Unit. It is a “Summary Proceeding,” which means it happens faster than most other civil or criminal cases. If a Tenant has been found guilty of Unlawful Detainer, a judge issues a Writ of Possession, which empowers the County Sheriff to come onto the property, remove the Tenant and the Tenant’s possessions, and change the locks.
- Wrongful Eviction: A Wrongful Eviction is an eviction that fails to follow the requirements of California’s unlawful detainer statute or that does follow the requirements of this statute but is based on fraudulent actions or intent. To evict a tenant who occupies real property (e.g., a house, apartment, or store) and who refuses to leave, the Landlord must give written notice and then take the tenant to court. If the Landlord engages in “self-help,” by, for example, changing the locks, throwing the tenant’s possessions out, or chasing the tenant away from the property, the Landlord has engaged in a Wrongful Eviction. Similarly, if the Landlord follows the proper legal channels for a Landlord-move-in eviction but rents the property out on AirBNB rather than move in (i.e., the Landlord commits fraud), the Landlord has also conducted a Wrongful Eviction. A Wrongful Eviction can be an eviction conducted illegally, an eviction conducted in retaliation for a Tenant’s exercise of rights under the law (such as reporting violations of the warranty of habitability), or an eviction conducted with discriminatory intent. (See also Illegal Eviction.)