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Backed-up Toilet Creates a Legal Mess for Renter

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Robert S. Griswold | Steven R. Kellman | Ted Smith
18-March-2001 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (10 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at, and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

QUESTION: I recently returned to my apartment after a weeklong trip to find my sole toilet backed up. After trying to solve the problem myself and then leaving a message for the apartment manager, I called a plumbing service.

The apartment manager is only available during business hours and the apartment owner has nothing in place for after-hours emergencies. I deducted the plumbing bill from my next month's rent payment but was informed by the apartment owner that I had no authority to contract with outside service people and deduct the bill from my rent.

The owner demanded I make up the difference in rent or be assessed late fees. Additionally, the owner claimed that a backed-up toilet is not his responsibility and that I had caused the problem. Who is responsible for after-hours situations?

ANSWER: Kellman: If the toilet stoppage was caused by your fault or negligence, you will be responsible to repair it at your expense. If it was caused through normal use, the landlord should repair it at his/her expense.

You may (and should) notify the landlord of the need for repairs. It is best to put this notice in writing unless a verbal notice brings an immediate repair response.

If you get no adequate response to your request, and the problem is significant, you may withhold rent which, if not done correctly, could invite an eviction case against you. You may also repair the problem and deduct the cost from the rent.

Before you use the "repair and deduct" remedy, you must give the landlord a reasonable time to make the repair. The law presumes 30 days to be reasonable in the absence of evidence to the contrary.

Logically, certain problems can not wait 30 days or even three days. I believe that a sole toilet malfunctioning is one of those problems that requires immediate attention. If the landlord was unavailable after hours to handle the problem, then calling a plumber was reasonable and the landlord should allow the rent deduction.

Smith: The origin of the toilet clog has not been made clear to me by this question. If the tenant is at fault, then he has no right to repair and deduct, and he could be held legally responsible -- even evicted -- for causing the toilet backup.

Assuming he was not at fault, then I still believe he acted too hastily. Landlords do not like tenants running off and making their own repairs. The repair and deduct statute -- despite Steve's comments -- is strictly construed and reasonable notice must first be given to the landlord to repair the problem.

Further, it must relate to serious habitability. You "left a message" for the apartment manager, but did not give him a chance to respond or take care of the problem the next business day. Before repairing and deducting, California law states that a reasonable period of time must elapse. It didn't here.

This toilet problem could have been fixed the following business morning. You may have been inconvenienced, but the premises were not uninhabitable. You'd better pay the rent to avoid receiving the boot on an eviction.

Paint my wagon

I have lived in an apartment for 10 years. The interior has not been painted since I moved in. The owner says he will only paint when I move out. I would not mind painting the apartment myself since whomever the owner hired to do it before did a substandard job. What are the legal obligations of the owner in this situation? What are my rights?

Griswold: The owner has no legal obligation to paint your apartment unless the paint creates a hazardous condition. For example, the peeling of lead-based paint. Cosmetic items, such as the usual request for repainting, are not mandatory for owners.

Thus, you can offer to have the unit painted yourself as you have suggested. Be sure to send a letter or sign a basic statement outlining all the terms of the agreement, including who pays for materials and supplies.

Or you may want to consider asking that the owner have your rental unit repainted by a mutually agreed professional painter and you would be willing to sign a new lease or even pay a slightly higher amount of rent. It really comes down to whatever you can negotiate.

Kellman: Paint is like a carpet. Instead of covering the floor, it covers the walls and ceilings. It is true that paint deterioration is not technically a breach of habitability item unless the painted surface or peeling paint is tainted with mold, mildew or lead.

If the paint creates a dangerous condition, clearly it must be corrected. Even when the paint condition is not a breach of the warranty of habitability it may have to be corrected if the paint has past its full useful life.

After all, you rented a unit with paint on the walls and/or ceilings. As long as you are still paying rent, why not have that paint on surfaces of the unit you are paying rent to live in?

Clean sweep

I rented an apartment three years ago. I am now moving into a house. I gave my required 30-day written notice to vacate. My manager told me that I will receive my deposit within 21 days of moving out. This is fine. However, the problem is that he informed me that it will be less $200 for cleaning and painting.

He knows that the apartment will be left clean as it's clean right now. He stated that it's a new policy. I told him that my month-to- month contract did not state anything other than a full deposit refund with the exception of any damage caused. There is no damage to the apartment. What are my legal rights?

Griswold: Your situation is rather straightforward. Your security deposit is governed by California Civil Code section 1950.5 and the landlord has the right to deduct for unpaid rent, damages beyond normal wear and tear, and cleaning, if necessary. While the law is straightforward, the interpretation is anything but simple. In your case, the landlord can charge for painting if the painting is required due to use beyond normal wear and tear.

For example, a few smudges near a light switch would be normal yet large nail holes from hanging pictures might not be normal. Damage such as crayons or other nicks, gouges in the walls or doors would also not be normal wear and tear.

Many people are not aware, but the cleaning is not subject to normal wear and tear. Thus, you must leave the rental unit in completely clean condition -- including appliances, showers tracks, windows/screens and all those little places that dirt has accumulated in the last three years.

If your landlord is not being reasonable, then you may want to contact the Tenants Legal Center at (858) 571-7100 for more information.

IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at

Copyright Union-Tribune Publishing Co.

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Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws.  As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or  intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply.  Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.


Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161


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