Painting Fee may be
Robert S. Griswold | Steven R. Kellman | Ted Smith
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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 firstname.lastname@example.org
2002 Rental Roundtable
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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