Giving and Receiving Proper Notice

Tenant's notice to end a periodic tenancy

To end a periodic rental agreement (for example, a month-to-month agreement), you must give your landlord proper written notice before you move.

You must give the landlord the same amount of notice as there are days between rent payments.¹⁷⁶ This means that if you pay rent monthly, you must give the landlord written notice at least 30 days before you move. If you pay rent every week, you must give the landlord written notice at least seven days before you move.¹⁷⁷ This is true even if the landlord has given you a 60-day notice to end the rental agreement and you want to leave sooner (see Landlord's notice to end a periodic tenancy.)^177a

To avoid later disagreements, date the notice, state the date that you intend to move, and make a copy of the notice for yourself. It's best to deliver the notice to the landlord or property manager in person, or mail it by certified mail with return receipt requested. (You can also serve the notice by one of the methods described under "Proper Service of Notices".)¹⁷⁸

You can give the landlord notice any time during the rental period, but you must pay full rent during the period covered by the notice. For example, say you have a month-to-month rental agreement, and pay rent on the first day of each month. You could give notice any time during the month (for example, on the tenth). Then, you could leave 30 days later (on the tenth of the following month, or earlier if you chose to). But you would have to pay rent for the first 10 days of the next month whether you stay for those 10 days or move earlier. (Exception: You would not have to pay rent for the entire 10 days if you left earlier, and the landlord rented the unit to another tenant during the 10 days, and the new tenant paid rent for all or part of the 10 days.)¹⁷⁹

The rental agreement or lease must state the name and address of the person or entity to whom you must make rent payments (see When You Rent section). If this address does not accept personal deliveries, you can mail your notice to the owner at the name and address stated in the lease or rental agreement. If you can show proof that you mailed the notice to the stated name and address (for example, a receipt for certified mail), the law assumes that the notice is receivable by the owner on the date of postmark.¹⁸⁰

Landlord's notice to end a periodic tenancy

A landlord can end a periodic tenancy (for example, a month-to-month tenancy) by giving the tenant proper advance written notice. Your landlord must give you 60 days' advance written notice that the tenancy will end if you and every other tenant or resident have lived in the rental unit for a year or more.¹⁸¹ However, the landlord can give you 30 days' advance written notice in either of the following situations:

• Any tenant or resident has lived in the rental unit less than one year;¹⁸² or
• The landlord has contracted to sell the rental unit to another person who intends to occupy it for at least a year after the tenancy ends. In addition, all of the following must be true in order for the selling landlord to give you a 30-day notice:

1. The landlord must have opened escrow with a licensed escrow agent or real estate broker, and
2. The landlord must have given you the 30-day notice no later than 120 days after opening the escrow, and
3. The landlord must not previously have given you a 30-day or 60-day notice, and
4. The rental unit must be one that can be sold separately from any other dwelling unit.^182a

The landlord usually isn't required to state a reason for ending the tenancy in the 30-day or 60-day notice (see "Thirty-Day or Sixty-Day Notice"). The landlord can serve the 30-day or 60-day notice by certified mail or by one of the methods described under "Proper Service of Notices".^182b

Note: In the circumstances described in the Three Day Notice section, the landlord can give the tenant just three days' advance written notice.

If you receive a 30-day or 60-day notice, you must leave the rental unit by the end of the thirtieth or sixtieth day after the date on which the landlord served the notice (see How to respond to a thirty-day or sixty-day notice)

For example, if the landlord served a 60-day notice on July 16, you would begin counting the 60 days on July 17, and the 60-day period would end on September 14. If September 14 falls on a weekday, you would have to leave on or before that date. However, if the end of the 60-day period falls on a Saturday, you would not have to leave until the following Monday, because Saturdays and Sundays are legal holidays. Other legal holidays also extend the notice period.^182c

If you don't move by the end of the notice period, the landlord can file an unlawful detainer lawsuit to evict you (see The Eviction Process).

What if the landlord has given you a 60-day notice, but you want to leave sooner? You can give the landlord the same amount of notice as there are days between rent payments (for example, 30 days' notice if you pay rent monthly) provided that -

• The amount of your notice is at least as long as the number of days between rent payments, and
• Your proposed termination date is before the landlord's termination date.^182d

What if the landlord has given you a 30-day or 60-day notice, but you want to continue to rent the property, or you believe that you haven't done anything to cause the landlord to give you a notice of termination? In this kind of situation, you can try to convince the landlord to withdraw the notice. Try to find out why the landlord gave you the notice. If it's something within your control (for example, consistently late rent, or playing music too loud), assure the landlord that in the future, you will pay on time or keep the volume turned down. Then, keep your promise. If the landlord won't withdraw the notice, you will have to move out at the end of the 30-day or 60-day period, to be prepared for the landlord to file an unlawful detainer lawsuit to evict you.

Special rules may apply in cities with rent control. For example, in some communities with rent control ordinances, a periodic tenancy cannot be ended by the landlord without a good faith "just cause" or "good cause" reason to evict. In these communities, the landlord must state the reason for the termination, and the reason may be reviewed by local housing authorities.

Suppose that you are a tenant who participates in the Section 8 housing voucher program. While the lease is in effect, the landlord must have good cause to terminate (end) the tenancy. Examples of good cause include serious or repeated violations of the lease, or criminal activity that threatens the health or safety of other residents.¹⁸⁴ The landlord must give the tenant a 3-day or 30-day or 60-day notice of termination under California law (see "Written Notices of Terminations"), and both the landlord and the tenant must give the public housing agency a copy of the notice.¹⁸⁵ What if the landlord simply decides not to renew the lease, or decides to terminate the HAP (housing assistance payment) contract? In this case, the landlord must give the tenant 90 days' advance written notice of the termination date.¹⁸⁶ If the tenant doesn't move out by the end of the 90 days, the landlord must follow California law to evict the tenant.¹⁸⁷

If you live in government-assisted housing or in an area with rent control, check with your local housing officials to see if any special rules apply in your situation.

ADVANCE PAYMENT OF LAST MONTH'S RENT

Many landlords require tenants to pay "last month's rent" at the beginning of the tenancy as part of the security deposit or at the time the security deposit is paid. Whether the tenant can use this amount at the end of the tenancy to pay the last month's rent depends on the language used in the rental agreement or lease.¹⁸⁸

Suppose that at the beginning of the tenancy, you gave the landlord a payment for the last month's rent and for the security deposit, and that the lease or rental agreement labels part of this up front payment "last month's rent." In this situation, you have paid the rent for your last month in the rental unit. However, sometimes landlords raise the rent before the last month's rent becomes due. In this situation, can the landlord require you to pay the amount of the increase for the last month?

The law does not provide a clear answer to this question. If your lease or rental agreement labels part of your up front payment "last month's rent," then you have a strong argument that you paid the last month's rent when you moved in. In this situation, the landlord should not be able to require you to pay the amount of the increase for the last month.¹⁸⁹ However, if your lease or rental agreement labels part of your up front payment "security for last month's rent," then the landlord has a good argument that you have not actually paid the last month's rent, but have only provided security for it. In this situation, the landlord could require you to pay the amount of the increase for the last month.

For example, say that your rental agreement labeled part of the total deposit that you paid when you moved in "security for last month's rent," or that "last month's rent" is one of the items listed in your rental agreement under the heading "Security." Suppose that your rent was $500 when you moved in and that you paid your landlord $500 as "security for the last month's rent." Suppose that you also paid your landlord an additional $500 as a security deposit. If the landlord properly raised your rent to $550 while you were living in the rental unit, you can expect to owe the landlord $50 for rent during the last month of your tenancy (that is, the current rent [$550] minus the prepaid amount [$500] equals $50 owed).

If your rental agreement calls your entire upfront payment a "security deposit" and does not label any part of it "last month's rent," or "security for last month's rent," then you will have to pay the last month's rent when it comes due. In this situation, you cannot use part of your security deposit to pay the last month's rent. However, you will be entitled to a refund of your security deposit, as explained in the next section.

¹⁷⁶ Civil Code Section 1946.1(b), effective January 1, 2007. (Stats. 2006, ch. 842 (AB 1169, Torrico).)
¹⁷⁷ Civil Code Section 1946.1(a),(b), effective January 1, 2007.
^177a Civil Code Section 1946.1(e), effective January 1, 2007.
¹⁷⁸ Civil Code Section 1946.1(f), effective January 1, 2007.
¹⁷⁹ See Brown, Warner and Port man, The California Landlord's Law Book, Vol. I: Rights & Responsibilities, page19/4 (NOLO Press 2005).
¹⁸⁰ Civil Code Section 1962(f).
¹⁸¹ Civil Code Section 1946.1(b), effective January 1, 2007. (Stats. 2006, ch. 842 (AB 1169, Torrico).)
¹⁸² Civil Code Section 1946.1(c), effective January 1, 2007.
^182a Civil Code Section 1946.1(d), effective January 1, 2007. For example, a house or a condominium can be sold separately from any other dwelling unit, but the units in a halfplex cannot be sold separately from each other.
^182b Civil Code Section 1946.1(f), effective January 1, 2007.
^182c Code of Civil Procedure Section 12a.
^182d Civil Code Section 1946.1(e), effective January 1, 2007.
¹⁸⁴ California Practice Guide, Landlord-Tenant, Paragraphs 12:270 and following (Rutter Group 2005). See this chapter for an in-depth discussion of the Section 8 housing program.
¹⁸⁵ Moskovitz, California Eviction Defense Manual, Section 18.22 (Cal. Cont. Ed. Bar 2005), citing Gallman v. Pierce (ND Cal. 1986) 639 F. Supp. 472, 485(landlord must follow California law when terminating a tenant's Section lease).
¹⁸⁶ Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111 [29 Cal.Rptr.3d 262].
¹⁸⁷ California Practice Guide, Landlord-Tenant, Paragraph 12:301(Rutter Group 2005)
¹⁸⁸ Brown, Warner and Portman, The California Landlord's Law Book, Vol. I: Rights & Responsibilities, pages 5/4-5/5 (NOLO Press 2005).
¹⁸⁹ Portman and Brown, California Tenants' Rights, page 14/10 (NOLO Press 2005); see Brown, Warner and Portman, The California Landlord's Law Book, Vol. I: Rights & Responsibilities, pages 5/4-5/5 (NOLO Press 2005).

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Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, Orange County, California. He can be reached at (714) 954-0700, or by email.  The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.