Appliance Defiance May be Out of Place

Robert S. Griswold | Steven R. Kellman | Ted Smith
4-August-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 (9 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 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.

Percent dissent

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.

Movin' around

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.

Laid off

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 rental unit.

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.

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