Painting Fee may be Discrimination

Robert S. Griswold | Steven R. Kellman | Ted Smith
10-February-2002 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 www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

QUESTION: The last time we moved, we cleaned the whole house. The landlord was satisfied with everything, but now wants to charge me for sealing and painting the interior walls of the house, claiming the smell of our native Indian food has been absorbed in the walls. It is discriminatory to charge me for this absurd reason. I would appreciate your guidance.

ANSWER: Smith: It may be perfectly legal for them to deduct for the sealing and painting. The landlord must sustain the burden of showing that the smell is unreasonable and above and beyond ordinary wear and tear.

In this case, the landlord's mistake was to characterize the source of the odor from a national origin and therefore, facially discriminate on the basis of national ancestry. I agree with you that if the landlord's belief is that Indian food is more offensive than some other nationality, then that would be a discriminatory and unlawful.

If, however, the food odor is unreasonable in relation to any other type of food odor, then I'm going to side with the landlord and make the security deposit deductions lawful. In other words, for purposes of the deposit, let's ignore that it may have been "from India" and focus on whether or not the extent of the odor was such that these deductions were appropriate under California's security deposit law. If not, then you have a great case for a deposit refund.

Kellman: Clearly the landlord may deduct for cleaning and damages caused by use that is beyond ordinary wear and tear. Properly deductible damage costs may include sealing and painting because of significant food odors of any kind that have permeated the walls.

Cooking is a normal use within a dwelling, but leaving permanent food odors behind, regardless of the food, may be beyond what is acceptable as normal wear and tear. If the walls are contaminated with odor, the new tenant can rightfully demand that it be rectified.

The reference to the odor as being from "Indian food" was an ill- chosen statement. If the landlord did not deduct anything from a deposit for certain food odors remaining in a newly vacated unit, but did charge another tenant for odors caused by foods specifically linked to that tenant's ethnic or religious background, unlawful discrimination would have to be considered.

The landlord must apply reasonable damage repair standards equally to all tenants regardless of their race, religion, ancestry etc.

Griswold: The bottom line here is that the occupants' national origin is not relevant and strong odors in a rental unit must be addressed regardless of the source. The sense of smell is often a personal issue."

While the determination that a particular odor is offensive can vary widely from one individual to another, nonetheless, the rental unit needs to be as odor-neutral as possible. There is no doubt that the walls and window coverings in a rental unit can absorb and retain strong odors.

The landlord must take appropriate steps upon tenant turnover as it is very difficult to lease a rental unit if it contains unpleasant odors. Thus, it seems as if your landlord has a reasonable basis for repainting and sealing the interior walls of your rental unit.

Ask your current landlord for a copy of the actual invoice for the repairs to ensure that the work was done and the amount charged is reasonable.

Fire away

I live in an apartment building with eight units. Of these eight units, five of them contain smokers. We all have young children so we smoke outside.

Recently a new tenant moved in and complained of smoke entering her apartment from outside. The apartment manager issued warning notices to everyone in the building about this problem and insisted that we not smoke outdoors any more. We have been putting our cigarettes out when the new tenant is walking to or from her door, but we want to continue to smoke outdoors.

Kellman: Generally, as an adult, it is your right to smoke in any location unless prohibited by a law or applicable private rule.

The trend has been more to ban smoking indoors rather than outdoors since smoking outdoors generally does not bother nonsmokers. However, when cigarette smoke enters a rental dwelling from the outside, it now becomes more like an indoor smoking issue. It is an unwanted and potentially annoying intrusion.

Your right to smoke is not unconditional and absolute. When the smoke interferes with other tenants' use of their units, that smoking activity may be restricted. While you may feel discriminated against with restrictive laws or rules by landlords, smokers are not considered a protected class (i.e. race, religion, ancestry etc.) so the usual anti-discrimination laws will not help you. It is unlikely that your lease will resolve the matter since it probably does not cover smoking.

The best thing to do would be to meet with your friends in a different location that will prevent the smoke from annoying any neighbors. This should make you, your nonsmoking neighbors and the landlord happy.

Smith: The smoking issue has placed California's landlords in a paradox for years. While I am a landlord's attorney, I believe that tenants have the right to smoke in the privacy of their own home. After all, this is not an airplane, restaurant or bar. On the other hand, adjacent tenants have the right to be free of secondary smoke which, according to the state of California, has been determined to cause cancer.

There are advocates on both side of the issue who articulate their positions. Still, the California Legislature has not acted on the issue. Landlords are reluctant to pave a new way for nonsmoking buildings knowing that the smokers will rise up and file a class action.

However, it is more likely that a lawsuit based on the inhalation of secondary smoke will be filed by an adjacent tenant. To this end, I call on the California Legislature and the courts to balance these concerns and legislate or rule on the issue.

Until then, California landlords would be well advised to choose the path of least resistance and allow smoking subject to reasonable rules and regulations.

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 rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

Back to 2002 Rental Roundtable Index

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.

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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
Email: rgriswold.ret@retodayradio.com