Legal Question in Real Estate Law in California

California guidelines, tenant did not give 30 days written notice and moved out early.
On move-in day, my tenant paid first and last month's rent for a month-to-month lease. August, September, October were all paid on time. About a week after paying October's rent, I was notified that the tenant would soon move out sometime during the following month. In mid-October, I was notified that the move-out day would be mid November. On November 1, the tenant did not submit a rent check and thus the tenant's �Last Month's Rent check� was applied. The tenant moved out before the end of the month and demanded I pay back the pro-rated amount for the days left in November. The contract signed by tenant & landlord clearly states that the last month was already paid for. If the tenant planned on moving in the beginning of November, the tenant would have needed to give written notice and thus not make a check for October since the last-months rent check would be applied.
A contract was signed by both the tenant/landlord stating that a 30-day written notice was to be made by either party to change terms. Once tenant paid for October, my understanding is that, since the �last month's rent� had already been paid, the tenant would be paid through the end of November. I thought the point of taking the last month's rent in the beginning would protect me in case the tenant chose to leave early. I was unable to find and replace with a new tenant in the short time allotted.
Fairhousing explained that the tenant is unable to recover pro-rated amount of last month's rent or any portion of the security deposit and tenant is responsible for last month's rent / not entitled to refund under CA state law since:
1)tenant failed to provide landlord with 30 day written notice
2)responsible for those 30 days of rent even if notice was given
Fairhousing advised me to Send an Itemized receipt to the past tenant certified mail with return receipt. Since tenant didn't give notice and landlord could not find replacement tenant, the landlord can lawfully keep all of security deposit to be covered for that month's rent. I'm currently being harassed by my former tenant to return security deposit and pro-rated amount. I mistakenly paid half of the security deposit back a week ago before I knew my full rights-obligations.
I am confused because I keep reading in the civil codes that landlord must return security deposit or written receipt of charges due within 21 days. I cannot find anything on when the tenant does not give notice. Fairhousing advised that tenant waived these rights by moving out without 30 day written notice. Is this correct? Do the 21 days count in this case?
I am currently creating an itemized receipt to mail over--- just want to double check that this is permitted by CA law.

Asked on 1/14/11, 10:46 pm

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

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Sounds to me as though the tenant owed rent until November 15, based on notice that he would be moving out 'mid-November.' If, as it seems, you had an understanding that the deposit was specifically to be used as the last month's rent, the tenant has paid you for all of November. Therefore, the tenant is entitled to a refund for the 16th through 30th of November, if he actually moved out on or before the 15th of November.

Answered on 1/20/11, 10:12 am

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