Tenant is Stuck With Month-to-Month Lease

Robert S. Griswold | Steven R. Kellman | Ted Smith
2-March-2003 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (9 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

QUESTION: A few months ago I had a nine-month lease that expired. It stated: "Unless written notice is given by Lessor to Lessee or by Lessee to Lessor at least (30) days prior to the expiration of this Lease, then this Lease shall automatically renew for (1) month periods (month-to-month) until written notice is given by one party to the other not less than 30 days prior to the end of any one month."

Approximately 45 days before my lease expired the management company sent me a letter with different lease terms and rents. The longer the term, the lower the monthly rent. I had to let them know by the end of that month what I was going to do.

I did nothing and I am on a month-to-month basis. Now I want to take advantage of their offer for a longer-term lease at the lower rental rate but they say I'm committed to a month-to-month lease. Can I make them offer the long-term lease? If not, I want to move but they tell me that I can only give my 30-day notice at the end of the month.

ANSWER: Property Manager Griswold: Unfortunately, you cannot force the landlord to offer the same lease terms at this time. So I would say you are stuck with a month-to-month rental agreement since you did not give them a notice or accept/reject their options in writing at least 30 days before the end of your lease.

But that may not be all that bad. In many areas, the rental rates have actually fallen in the past several months and you should be able to negotiate a better deal. There are even landlords offering rent concessions or waiving the rental application fees.

If you decide you want to move soon, then you should immediately give them a 30-day written notice of termination of your tenancy. There is no requirement that you can only give a notice to terminate your tenancy at any certain time period so you could give your notice tomorrow and legally have the right to vacate in 30 days.

If you do this, be sure to only pay the prorated rent at the beginning of the next month or they may claim that you invalidated your own notice.

Mom's friend

Question: My mother invited a "friend" who was down and out to stay with her while she got herself back on her feet. The friend turned out to be an extremely unethical, manipulative woman who is now refusing to move out of my mother's home after staying there for almost a year without paying any rent.

My mother has asked her to leave and she has blatantly said no. I want to know if she has any tenant rights. She has never signed a lease or paid rent money.

I would like to have the police department remove the woman. This is a very distressing situation so I would appreciate any help that you can give me.

Landlords' attorney Smith: This is a tough question. From a legal standpoint, it is difficult to characterize the type of tenancy the manipulative friend has in the house. She is neither a month-to-month tenant nor a leaseholder, having never paid rent or executed any written agreement. On the other hand, she is not a trespasser, having obtained consensual possession originally.

Landlord/tenant law would describe her occupancy of the house as a tenancy-at-will. This type of tenancy may be terminated by written 30-day notice followed by the eviction lawsuit. As an alternative, I would suggest that the reader's mother consider obtaining a restraining order removing the woman from the house as an alternative to an eviction. California's elder-abuse law and family codes provide for kick-out orders in situations similar to this.

Tenants' attorney Kellman: I agree with Ted that this woman is probably a tenant- at-will and, as such, her tenancy may be terminated with a 30-day notice followed by an eviction court case if she refuses to move. Take care, however, because if she claims to pay rent with services or other things of value, she may not be a tenant-at-will at all.

In that case, she would be a month-to-month tenant and be entitled to a 60-day notice once she is there a year. There is an exception to the court eviction rule. If your mother is the owner of the home, and this woman is the only boarder at the home, she may be evicted by the police without having to go to court. You would serve her a 30-day notice and if she does not leave, call the police. They could then remove her as a trespasser.

Restraining orders are not favored by the courts as an eviction tool. That procedure is reserved to prevent violence or other serious threatening or harassing conduct.

Where there's smoke

Question: We rent a three-bedroom, multilevel house in Pacific Beach. The neighbor "upwind" from the house has an older, one-story home with a fireplace and chimney that is below the level of the bedroom windows on our house.

On cool days and evenings, he burns magazines and newspapers in the fireplace, and the reeking, full smoke comes right into our house; it seeps in even when the windows are closed. After complaining to our landlord, he called San Diego County air pollution control. They told him there was nothing they could legally do to stop the neighbor from creating this awful smoke, but offered to mail the neighbor a pamphlet about how to use a fireplace.

The neighbor is a renter -- can we complain to his landlord or what should we do?

Landlords' attorney Smith: I sympathize with your situation. However, your landlord is not in control of the neighboring property, which is under separate ownership. This limits what your landlord can or should do for you regarding the noxious fumes from the adjacent chimney.

Both of you should take action against the neighboring landlord and the tenant. The smoke constitutes a nuisance and interference with your quiet enjoyment. Write a letter to both the tenant and landlord requesting that this be stopped. If they fail to comply then consider further legal proceedings.

Tenants' attorney Kellman: The landlord must supply you with a dwelling free of significant defects affecting habitability and, as Ted points out, free from interference with your use and quiet enjoyment of the rental. While it is true that the neighbor is the main cause of this smoke problem, you should not have to hold your breath waiting for a solution.

It is the landlord who must resolve this matter. You, as a tenant, are entitled to expect the rental to be in a safe and habitable condition. The fact that the landlord's building is facing difficulties with adjoining properties is his problem, not yours.

In residential rental situations, tenants do not need to worry about such things as who made those leaky pipes, where did those frayed wires come from or, in this case, why do the neighbors send their smoke your way.

If it is a problem not caused by the tenant, it is one which should be fixed by the landlord. He did make some effort to resolve the matter, but that has not been successful. If legal action is now needed to stop the smoke, it is up to your landlord to handle it at his or her expense, not yours.

You are probably entitled to a partial rent offset (i.e. refund) for having to live like that until the problem is resolved.

IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

Back to 2003 Rental Roundtable Index

Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws. As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply. Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

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Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
Email: rgriswold.ret@retodayradio.com