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Legal • September 1, 2005

Landlord / Tenant Law 101 - Lease Basics

Landlord/Tenant Law 101:  Lease Basics

By David M. Wilson

This article is provided for your education and is not intended as legal advice.  Consult an attorney for legal advice about your specific needs.

This is the first of a series of articles designed to provide a quick and dirty summary of the laws of California and Berkeley that govern landlord/tenant relations.  These laws can be excruciatingly detailed:  California, for example, tells you when you may or may not prevent a tenant from installing a waterbed on your property.  But the penalties even for innocent violations can be severe indeed.

To begin with, almost anyone can be a tenant.  This includes your mother-in-law in the unit downstairs and the nice European family with which you do a house trade.  Your rights and theirs are determined by (a) the laws of Berkeley,  (b) the laws of California, and by (c) your lease agreement.  This article focuses on the lease, which is the only one of these three things over which you have personal control.

Some say---correctly---that leases more often protect tenants than landlords. That doesn’t mean you as a landlord shouldn’t require one:  there are too many things which, absent a lease, will be decided against you if, God forbid, you get into a dispute with the tenant.

How important is your lease?  Here’s an example of an only-in-Berkeley legal landmine—one that would shock single-family homeowners.  Imagine you are a professor, going to teach at Yale for a year.  You rent your own home for the year you plan to be gone.  But you break your hip on an icy New Haven sidewalk and decide to return to Berkeley to recuperate.  Can you evict the tenant to move back into your own home?  No, not unless your lease expressly reserves “the right to recover possession of the unit for … occupancy as a principal residence.”  (See BMC 13.76.130(A)(10).)

Leases must always be presented to and signed by the tenant, and any deposit paid, prior to allowing the tenant to move in (otherwise the court may say that the agreement was imposed by duress and therefore unenforceable).  The lease must identify the premises, and should be specific about areas that the tenant has a right to occupy and the uses to which the tenant may put those areas.  May the tenant grow vegetables in your garden?  Leave his dog in the common patio?  Store his bike in the garage?  Do a friend’s laundry in the laundry room? 

The lease should specify the rent and deposit amounts, and the manner of payment, and should be specific about metered and/or unmetered utilities. The term of the lease should be stated (even though evictions for no other reason than expiration of the lease term are difficult in California and virtually impossible in Berkeley).  Pets, roommates, overnight guests, all-night parties, noise restrictions, lack (or availability) of  site parking –anything that is a potential concern to you—should be covered.  Potential hazards on the property should be revealed.

A Berkeley-specific hint:  where you are providing any extras at all, like furniture, laundry facilities, parking, and storage, the terms might better be put in a separate agreement.  Your separate agreement might even provide for a separate fee, or at least reserve the right to charge a fee in the future.  These arrangements may thus be insulated from the jurisdiction of the Rent Board and the constrictions of rent control.  The same thing is true of deals that allow the tenant to perform gardening or maintenance services on the property, perhaps in exchange for a reduced rent:  while you may intend that the amounts earned should be an offset against rent, it is far better it keep your obligation to pay for personal services separate from the tenant’s obligation to pay rent.

There are certain things a lease cannot do for you.  You cannot require a tenant to waive his/her rights under the rent control laws.  You cannot ask a tenant to waive his/her right to a habitable unit, or to basic utilities (all residential units must have phone jacks, for example).  Nor may you make a tenant promise not to sue you if he/she slips on a crack in the sidewalk or gets bitten by a fellow tenant’s dog (you should carry insurance for such things). 

The amount and treatment of deposits is controlled by California and Berkeley law, and you may not impose further requirements by lease.  Forcing a tenant to agree to arbitration (in lieu of going to the Rent Board or to court) is also a no-no in most situations.

But if you want to be sure that the tenant keeps the place clean, or takes responsibility for minor repairs, or doesn’t sublet to a stranger, or assign his lease to someone else (thus creating a perpetual tenancy), a well-drawn lease is your best tool. 

A lease is also the place to decide whether you want to make it possible for you or the tenant to recover attorney fees in the event you get into a legal conflict.  Most local practitioners strongly advise not allowing the recovery of attorney fees.  Attorney fees clauses can create an incentive for tenants’ attorneys to accept even weak cases, solely for their harassment-and-settlement value.

Where to find out more on this?  The Rent Board regs are at  California law is at California Civil Code Sections 1940 et seq., which may be found at

Note on form leases:  there are a lot of these at Nolo and elsewhere.  Your real estate agent may have given you one.  But such mass-produced forms are rarely a good idea in Berkeley.  BPOA provides a variety of more sophisticated leases.  If you haven’t already received your access to the members-only forms page at, send us an email request at  Remember that even our forms are a starting point only:  each form must be adapted to your particular situation, so read carefully!


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September 29
Landlord 101: Managing Additional Tenants, Guests & Subletters

October 06
Landlord 101: What to Do When a Tenancy Ends

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Landlord 101: Options to Reclaim Possession of Your Unit

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