Residential landlords and tenants typically enter into either a fixed-term lease agreement or a periodic rental agreement. Residential periodic tenancies frequently take the form of month-to-month rental agreements.

Both residential rental and lease agreements grant the tenant the right to possession. Further, both impose the same rights and obligations regarding maintenance of the property on the landlord and tenant. However, the tenant’s expectation of continued occupancy and their obligation to pay future rent differs between a rental agreement and a lease agreement.

A month-to-month rental agreement runs for an indefinite period of time. It automatically renews monthly, and on the same terms, until modified or terminated by notice. [See RPI Form 551 §3]

Periodic tenancies can be terminated by either the landlord or the tenant on 30 days’ written notice. However, a landlord needs to give the tenant at least 60 days’ written notice if the tenant’s occupancy has exceeded one year. [Calif. Civil Code §1946]

On the other hand, a lease agreement creates a tenancy that continues for a fixed duration. At the end of the fixed-period, both the tenant’s right of possession and the lease agreement expires. The terms of the lease set the expiration date, and no further notice is required. [See RPI Form 550 §3]

Unlike a periodic tenancy, the lease agreement does not automatically renew, unless an option to renew or extend has been written into the lease agreement and exercised.

Lease negotiations on expiration

A landlord cannot alter the terms of a lease agreement during the life of the lease without consideration and the tenant’s consent.

To extend the tenant’s occupancy under a soon-to-expire lease, the landlord contacts the tenant and offers to enter into:

  • another lease agreement; or
  • a month-to-month rental agreement.

If the tenant desires to remain in possession when their lease expires, the amount of rent a landlord can demand is limited only by negotiations, economic forces in the rental market and the tenant’s cost of relocation (which can be substantial).

As an alternative, a landlord can proactively negotiate and grant options to renew or extend a lease at the same time they initially negotiate the terms of the lease agreement. [See RPI Form 565]

Pet addendum

Any provisions agreed to but not included in the boilerplate provisions of pre-printed lease or rental agreements can be included in an addendum. The addendum is then referenced in the body of the rental or lease agreement.

One such addendum is the pet addendum. If a landlord allows pets, they often:

  • impose restrictions on the type or size of the pet; and
  • require the landlord’s written consent to keep the pet on the premises. [See RPI Form 551 §6.9 and Form 550 §6.9]

The landlord and tenant can sign and attach a pet addendum stating:

  • the type of pet and its name;
  • the security deposit to be charged for the pet (but limited as part of the maximum security deposit allowed); and
  • the tenant’s agreement to hold the landlord harmless for any damage caused by the pet. [See RPI Form 563]

A landlord cannot prohibit a disabled person from keeping a specially trained guide dog on the premises. [CC §54.1(b)(5)]

Additionally, a landlord who allows pets may not:

  • favor declawed or devocalized animals in any advertisement;
  • refuse to rent to a tenant because their pet has not been declawed or devocalized; or
  • require tenants’ pets to be declawed or devocalized as a condition of renting the property. [CC §1942.7]

Editor’s note – Although landlords may not favor declawed or devocalized pets, they may still protect against property damage or noise by including a lease provisions barring specific pet behavior or prohibiting pets altogether.

Non-smoking addendum

Consider a non-smoking family who leases a unit in an apartment complex. Smoking is banned in all indoor units, but is allowed in common areas such as around the pool and playground areas.

A child in the family suffers from respiratory distress caused by asthma and allergies. These physical conditions are aggravated by secondhand smoke when using the facilities in the common areas. The family requests the landlord eliminate smoking in the common areas by tenants and guests, which the landlord rejects.

The family claims the secondhand smoke constitutes a private nuisance and the landlord has a responsibility to prevent the harmful smoke since a residential landlord’s duty of care requires them to maintain the premises in a reasonably safe condition.

Did the landlord breach their duty of care owed to the family?

Yes! The landlord’s failure to limit smoking to prevent it from adversely affecting users of the common areas, including the child of the family, was a breach of their duty of care. Landlords have a duty to maintain the entirety of a premises in a reasonably safe condition for the tenants’ intended use. [Birke v. Oakwood Worldwide (2009) 169 CA4th 1540]

Every landlord has a duty to ensure the housing they rent remains safe and sanitary.

Additionally, a landlord has a duty to protect their tenants from foreseeable dangers.

Since environmental tobacco smoke (ETS) poses a governmentally recognized danger to tenants, a wise landlord takes steps to avoid claims. [Stoiber v. Honeychuck (1980) 101 CA3d 903; Calif. Code of Civil Procedure §1174.2]

A landlord may do any of the following risk avoidance activities to alleviate the burden of future ETS disputes:

  • relocate non-smokers so they are not affected by the ETS of smoking tenants;
  • relocate smokers so they will not affect non-smokers; or
  • refuse to rent to persons who will not agree to the non-smoking provisions contained in or attached to the rental or lease agreement.

Alternatively, the landlord may:

  • designate all of the property as smoke-free, with the exception of any clearly defined areas from which smoking will not affect others by amending existing rental agreements or expired lease agreements [See first tuesdayForm 563-1]; and
  • enforce no smoking as part of the rules and policies of occupancy of the property through a “property policies”provision in the rental or lease agreement.

The above policies can be agreed upon by the landlord and tenant when entering into a rental or lease agreement by the use of use of a Non-Smoking Addendum. The Non-Smoking Addendum either prohibits smoking on the entire premises, or notes the specific location on the property where smoking is permitted. [See RPI Form 563-1 §3]

This article was originally published in July 2013 and has been updated.