Defiance May be Out of Place
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 (9 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 lease with my tenant is up for
renewal and I want to change it to exclude maintaining or replacing
the refrigerator and stove if they should fail in the future. The
appliances are approximately eight to 10 years old.
Also, the paint is peeling off the bathroom walls.
The bathroom was professionally painted 15 years ago when my husband
and I and our two sons lived in the house. We never had to repaint
during the 28 years we lived there. I think the tenants don't clean
properly because of the sound the exhaust fan was making.
ANSWER: Griswold: It is definitely possible
to include a specific disclaimer in a new lease or lease renewal
providing that the current refrigerator and/or the stove are included
in their "as is" condition without any express or implied
warranties and they will not be serviced or repaired if they should
not operate properly or fail.
However, I would not recommend this policy as a
dispute is very likely to occur regardless of how legally binding or
enforceable your disclaimer language in the lease. When the appliance
breaks your tenant may not be in the position to immediately replace
the appliance or they will expect you to decrease the rent since they
have had to provide an appliance that is typically included in the
local rental market.
The other issue is that the stove is typically a
built-in unit that is provided in virtually all areas whereas a
landlord-provided refrigerator is more a local rental market issue.
Therefore, I would strongly recommend that you provide the stove and
retain full responsibility for its proper maintenance and repair.
The stove is mostly modular and replacement parts
should be readily available to keep it going for at least five to 10
more years. Of course, if the tenant is responsible for replacing the
stove they are most likely to purchase the least expensive model or
even a used appliance. You could also run a serious liability risk in
the event that the "new" stove malfunctions and starts a
fire and/ or injures someone.
Landlords have more latitude with refrigerators.
Refrigerators have life spans of 10 to 12 years and thus it is much
more likely that you will need to replace the refrigerator before the
stove. Nonetheless, I still would advise you to stick with your
current policy of providing both a stove and refrigerator and
retaining control of their servicing or replacement.
Regarding your concerns that the tenant isn't
taking care of the apartment: The paint products currently on the
market do not have the same life span as when you personally occupied
the home. For environmental and health and safety reasons, lead-based
paint products were eliminated in the late '70s and currently most
paints are water-based and have a shorter life expectancy.
Therefore, the peeling of 15-year-old bathroom
paint seems to be well within the concept of "normal wear and
tear" and I would suggest that you offer to repaint the bathroom
as part of the unit upgrades you are performing in anticipation of
your tenants signing a lease renewal.
If rental owners or property managers fail to
comply with California Civil Code Section 827 that requires them to
provide tenants with a 60-day written notice when the rent is
increased by more than 10 percent, what recourse does the renter have?
Many of our neighbors moved or are moving because,
in many cases, their rent was increased by 15 percent and they were
given less than a 60-day notice. We asked the manager if we can expect
our rent to be increased because we need to budget accordingly. We
were told they couldn't tell us until near the end of the six-month
lease. We are into our fourth month of the lease.
Kellman: California Civil Code Section 827,
regarding raising the rent in residential dwellings, only covers the
following situations: " . . . all leases of a residential
dwelling . . . from week to week, month to month, or other period less
than a month . . . "
In your case, you have a six-month lease.
Therefore, raising the rent at the end of the lease does not come
under the protections of Section 827. Since it is a fixed-term lease,
with a set termination date, the landlord is under no duty to continue
leasing to you.
My husband and I will be moving out of our
apartment soon. When we moved in a couple of years ago, the carpets
had not been cleaned and the walls had not been repainted, plus there
were nail holes that had been poorly spackled over by the previous
tenant. The property management company agreed to deduct $60 from our
first month's rent for the lack of carpet cleaning, but nothing for
the paint. It didn't matter then, but now we're moving out. Can the
management company hold us responsible for the unpainted walls? If so,
can we try to repaint ourselves or hire a contractor to do it? We fear
they'll try to gouge us.
Griswold: Clearly the landlord failed to
provide the rental unit in an acceptable condition upon your move in
and should not attempt to charge you for the cosmetic condition of the
walls plus any normal wear and tear during your tenancy. However, this
does not mean that there cannot be any charges if the walls are
damaged. For example, the landlord may be able to deduct for holes in
the walls or other damage. Hopefully, the poor condition of the rental
unit and particularly the walls is documented in writing at the time
you moved in, but if you are concerned that they may not remember you
should immediately send a letter outlining your position that you
should not be charged for repainting the walls. Be sure to get any
agreement in writing.
If there is some damage beyond normal wear and tear
to the walls that occurred during your tenancy, I would suggest you
have a professional complete the work and provide the owner with a
copy of the invoice.
My husband signed a nine-month lease for an
apartment where he has lived for the past seven years. He signed it
while he was employed; he's been laid off since. Fearing the worst,
how should he handle this situation? What happens usually when one
breaks a lease?
Griswold: The lease is binding and cannot be
canceled due to a loss of a job. You should contact the landlord and
see if they will voluntarily let him out of the lease. The landlord is
under no obligation but it doesn't hurt to ask.
If he just vacates, he would be responsible for the
entire balance of the lease unless the landlord is able to rerent the
Of course, if the landlord is not able to get the
same amount of rent as your husband was paying, the landlord may try
to charge your husband for that amount as well. For example, if his
rental rate was $2,000 per month and the landlord rerents the property
but can only get $1,900 then your husband is responsible for $100 per
month for the balance of the lease.
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 email@example.com
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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