Lease Clauses That Are Illegal in California — And How to Use That Against Your Landlord

California Tenant Defense System | Justice Foundation

Many California leases contain provisions that are illegal under state law — clauses that attempt to waive tenant rights, impose liability for conditions landlords are responsible for, or require tenants to pay costs that the law assigns to landlords. These illegal clauses are void and unenforceable, regardless of what your lease says. Knowing which clauses are illegal, and understanding what remedies apply when landlords try to enforce them, gives you significant leverage.

Common Illegal Lease Clauses

Waiver of habitability: any clause purporting to waive the implied warranty of habitability is void under California Civil Code Section 1953. You cannot contract away your right to a livable unit. Waiver of security deposit rights: clauses that attempt to limit the tenant’s right to an itemized accounting within 21 days, or that purport to allow deductions beyond those permitted by Section 1950.5, are void. Late fees exceeding the legal limit: late fees must be a reasonable estimate of the landlord’s actual costs from the late payment. Flat fees of $100 or more per day are generally considered punitive and unenforceable. Blanket prohibition on guests: a total ban on guests interferes with the tenant’s quiet enjoyment and is generally unenforceable. Waiver of right to legal process: any clause purporting to waive your right to a court proceeding before eviction is void.

Attorney’s Fees Clauses

California Civil Code Section 1717 provides that when a lease has a one-sided attorney’s fees clause — allowing one party (usually the landlord) to recover fees but not the other — the clause is deemed mutual: both parties can recover fees if they prevail. A landlord’s lease with an attorney’s fees clause actually entitles you to attorney’s fees if you win any dispute.

Using Illegal Clauses as Leverage

When a landlord tries to enforce an illegal clause — charging an excessive late fee, refusing to return a deposit, or retaliating based on a purported lease waiver — pointing out the illegality of the clause in writing is the first step. The Justice Foundation kit includes a California illegal lease clause reference guide and demand letters for each major category of illegal provision.