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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 100053
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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To whom it may concern, I have an applicant rental property,

Customer Question

To whom it may concern,
I have an applicant for my rental property, due to bankruptcy both husband and wife have bad credit, and have payments of additional debts due soon. Due to the high risk I have to take and to avoid the need to file 30/60 day notices, getting judgement to evict....etc., Is it legal to add the following, as an addendum to section 6 "Late Charge, Returned Checks" section of the yearly Lease agreement and have them sign it:
"If full payment of rent due from tenant is not received by landlord 15 days after the date due, or if check is returned, Tenant hereby waves their rights under California state and Federal law".
Does this statement protect Landlord and allow to evict them without the normal process?
Thank you for your advise.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  LawTalk replied 1 year ago.

Good afternoon,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.

1. What state are you in? CA?

Doug

Customer: replied 1 year ago.
I am in California
Expert:  LawTalk replied 1 year ago.

Good afternoon,

Thanks for the additional clarification.

Unfortunately, and as you might guess would be the case, CA law prohibits landlords from placing waivers in lease agreements that removes any rights granted to a tenant by CA law. The clause that you propose would be found to be illegally and unenforceable under the law.

As you may be aware, in the event that rent is not paid, you can issue a 3 Day Pay or Quit Notice and then immediately file for Unlawful Detainer. I will even give you the forms you need below. Also, you are allowed to demand a security deposit equal to up to 2 months' rent (three months' if the place is furnished) and that might be a good idea to protect yourself when you rent to tenants with terrible credit.

If necessary you can process the eviction yourself. Let me explain.

Below are links to the forms you will use in the CA court to evict the tenant. If there are any other persons there who are not tenants under your agreement, you must serve him with a separate document if you do not identify and name them in the Unlawful Detainer Complaint.

Under the law, if the reason for eviction is the failure to pay rent, or a violation of the rules, you may file the eviction after the Three Day Cure or Quit Notice is served on them.

If they are month to month tenants and you just want them out, and they have been there less than 1 year, you must first serve/hand or post at their door a written 30 day Notice of Termination of Tenancy. If they have resided there more than a year, the notice must be a60 day notice. The process, after you file the Unlawful Detainer Complaint in the court, from start to finish takes onaverage3 to 4 weeks and I’m sorry, but there is no way to expedite it beyond that time frame.

If rent is paid on the first, you can serve the notice at any time, but it won't be effective (the end of the 30days) until the end of month following the day you first serve them with the Notice of Termination. Here is a link to the 30 day notice of termination form that you must first serve on them. http://www.hrfh.org/forms/30_Day_Notice_of_Termination_of_Tenancy.pdf

Here are the forms you will need---the Summons and Complaint for Unlawful Detainer, the Default form if they don't file an Answer to the Complaint, and a Judgment form:

Unlawful Detainer Form

http://www.courts.ca.gov/documents/ud100.pdf

Request for Entry of Default

http://www.courts.ca.gov/documents/civ100.pdf

Judgment Form

http://www.courts.ca.gov/documents/ud110.pdf

Default Declaration

http://www.courts.ca.gov/documents/ud116.pdf

Do it Yourself Guide for Evictions

http://www.courts.ca.gov/selfhelp-eviction.htm

Document to serve on other non-tenant persons staying in the home, if you don’t identify and name them in the Unlawful Detainer Complaint

http://www.courts.ca.gov/documents/cp105.pdf

Three Day Pay or Quit Notice

http://formdownload.org/legal/real-estate/rental-lease-agreement/california-3-day-notice-to-pay-rent-or-quit-form/

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you so that I can be compensated for helping you. Thank you in advance.

I wish you and yours the best in 2015,

Doug

Customer: replied 1 year ago.
Hello Doug,
Thanks for your response. Per LawTalk recommendation
I have consulted a California lawyer and have been informed that as long as both Landlord & Tenant, agree to the terms & sign such agreement, it is legal.
This is contradictory to what you have stated above.
Also attached to your response, I find that the response provided is for general information purposes, LawTalk lawyer me may not be practicing in California, and customer (I) should seek legal advise else ware.
Please clarify.
Respectfully,
Arya
Expert:  LawTalk replied 1 year ago.

Good morning,

I respectfully ***** ***** a tenant may waive their rights under CA law to notice or due process prior to being evicted.

I am unable to further assist you in this matter, and I am going to opt out of your question and open this up for other professionals.

Your question is being placed back in the question list for other professionals to see, and to respond to. You do not have to stay online for the question to be active. Should another professional pick it up, you should be alerted by email unless you actively disable this feature.

There is no need for you to reply at this time as this may "lock" your question back to me, thus inadvertently delaying other professionals' access to it.

I apologize for any inconvenience and wish you well in your future.

Doug

Expert:  Ely replied 1 year ago.

Hello. Your previous expert has opted out and I have opted in. Please note:This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

California Civil Code § 1953 states the tenant rights that cannot be waived in a rental agreement or lease. You can see it HERE:

1953. (a) Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy: (1) His rights or remedies under Section 1950.5 or 1954. (2) His right to assert a cause of action against the lessor which may arise in the future. (3) His right to a notice or hearing required by law. (4) His procedural rights in litigation in any action involving his rights and obligations as a tenant. (5) His right to have the landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law. (b) Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive a statutory right, where the modification or waiver is not void under subdivision (a) or under Section 1942.1, 1942.5, or 1954, shall be void as contrary to public policy unless the lease or rental agreement is presented to the lessee before he takes actual possession of the premises. This subdivision does not apply to any provisions modifying or waiving a statutory right in agreements renewing leases or rental agreements where the same provision was also contained in the lease or rental agreement which is being renewed. (c) This section shall apply only to leases and rental agreements executed on or after January 1, 1976.

Ergo, such a waiver is likely to be seen as being "automatically void." This cannot and should not replace any person to person conversation one has with an attorney in CA. However, please be mindful of the above.

All the best.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Expert:  Ely replied 1 year ago.

Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question. I am simply touching base. Let me know. Thanks!