Legal Question in Real Estate Law in California

LEASE TERM v. LANDLORD'S HANDWRITTEN ADDENDUM

My brother signed a lease (preprinted lease form) for a one year period. Paragraph 8 of the lease states that once the lease term expires, the tenancy goes month to month. The landlord attached an addendum to the lease which states that the tenant must give a 60-day notice at the end of the lease term if tenant plans to move. My brother lived there for 2 years. He gave a 30-day notice because the lease term had expired.

QUESTION: Which paragraph (Paragraph 8 or the landlord's handwritten paragraph) applies? The lease term was expired and according to paragraph 8 of the lease, the tenancy was month-to-month and my brother gave a 30-day notice which is proper notice on a month to month. However, the landlord is going by his handwritten paragraph which requests 60-days notice and is not refunding my brother's security deposit based on the improper notice. Is the landlord correct?


Asked on 12/18/02, 12:14 pm

2 Answers from Attorneys

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

Re: LEASE TERM v. LANDLORD'S HANDWRITTEN ADDENDUM

A lease is a contract, and one party cannot add to or modify the terms of a contract without the consent of the other. Therefore, the first question is whether the handwritten addendum was present at the time your brother signed, or was added later. If it were added later, it has no effect and may be an attempted fraud.

If, on the other hand, the hanwritten addendum was present at the time of signing, it would seem to be valid unless some public policy strips the contracting parties of the power to make such an agreement. There are some tenant rights that a tenant cannot waive, i.e. that a landlord cannot take away in the lease, such as the landlord's liability for his negligence, or limitations on security deposits.

Next, I direct your attention to the following sections of the Civil Code, which can be found on line: 1943, 1944, 1945, 1945.5, 1946 and 1946.1. Taken together, these sections set forth California's law and public policy related to your issue.

In particular, note the sentence in section 1946 reading 'It shall be competent for the parties to provide by an agreement at the time such tenancy is created that a notice of the intention to terminate the same may be given at any time not less than seven days before the termination thereof.'

As I interpret this provision, it is lawful for landlord and tenant to contract for a notice period of 60 days. Therefore, unless the handwritten provision was inserted unilaterally after the signing, I think it is not against public policy and is enforceable.

If I am wrong, I hope another LawGuru attorney will jump in and let us know why.

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Answered on 12/18/02, 1:39 pm

Re: LEASE TERM v. LANDLORD'S HANDWRITTEN ADDENDUM

From California Landlord-Tenant Practice, 2nd ed., published by California Continuing Education of the Bar, �8.70:

"If the landlord and tenant agree that the tenancy may be terminated only by either party's giving more than 30 days' notice, the notice served will be valid only if it complies with the agreement. _Watkins v. McCartney_ (1922) 57 CA 643, 207 P. 909 (60 days' notice)."

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Answered on 12/18/02, 5:04 pm


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