Who's to Pay for Overheated Office

Robert S. Griswold | Steven R. Kellman | Ted Smith
18-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: We recently leased three contiguous office suites in a commercial office building located in a very hot inland area. The three suites have different cooling systems, from an air- conditioning unit, which keeps that suite cool, to ceiling air vents that don't work very well at all.

Is there a legal standard that sets forth the minimum and or maximum temperature of a commercial office building? Can we void the lease based on habitability if the landlord does not respond to our requests for repair?

ANSWER: Kellman: There are standards for safe and healthy work environments that an employer must provide for employees. These standards are not necessarily the direct responsibility of the landlord in a commercial lease situation. In such leases, the tenant does not have the same habitability rights that a residential tenant does.

A commercial tenant may not repair and deduct or withhold the rent if the landlord fails to make repairs. In commercial tenancies, it is generally legal to shift the responsibility of maintenance to the tenant if that is agreed upon in the lease. Therefore, your lease will govern as to who is responsible to maintain, repair or even replace the air-conditioning system.

If the lease provides that the landlord is responsible for the air-conditioning system maintenance, you are within your rights to demand (in writing) that any needed work be done. If it is not done, you may have grounds to break the lease if the needed repairs are significant. If they are not, you may be better served to repair it yourself and simply sue for the reimbursement.

If the repair cost is within $5,000, you may even use the Small Claims Court. Keep your rent current to protect your rights. See an attorney to review the lease before taking any action.

A raise in rent

Q: I have a Section 8 voucher. My lease is up for renewal and my landlord is demanding a $20 increase in rent and the security deposit. Can he do this? How often can he raise it since I thought that I was on a low-income program?

Griswold: Landlords can typically adjust the rental rate at the end of your lease term. I suggest that you contact the local housing authority that administers your Section 8 program to make sure that your rental unit and rental rate still meet its guidelines.

Landlords are not required to participate in the Section 8 program and there are no limitations that prohibit the landlord from adjusting the rent at the time of lease renewal as long as the rental rate does not exceed the maximum allowed rent for your rental unit.

Also, in today's rental market, a $20 monthly rent increase is not out of line. The market rent has increased so dramatically over the last few years that the new rental rate may very well still be below the maximum amount allowed by Section 8.

Also, remember that you may not even be personally affected since the Section 8 program requires you to only personally pay up to 30 percent of your income as rent. Thus, the $20 rent increase is most likely going to be paid by the Section 8 program.

Landlords, opting to participate in the Section 8 program, are prohibited from charging higher rental rates for rental units occupied by Section 8 tenants than they charge for comparable market rate rental units.

The terminator

Q: My tenant said I did not do a good job of extermination so he now wants to call a professional service and then subtract the cost from his rent. What is my recourse?

Smith: Generally speaking, the tenants are prohibited from making repairs to rental property without permission. In this case, the landlord and the vendor control the quality of the extermination job. If the job is done satisfactorily, the tenant may not redo it with his own exterminator.

California's Civil Code repair and deduct law authorizes the tenant, in limited circumstances only, to make a repair and deduct it from rent. Restrictions apply. The item must be of a serious nature. Notice and opportunity to repair must first be given to the landlord.

If the tenant fails to follows these requirements, then you could serve a three-day notice to pay rent or quit for the deducted amount. If the tenant fails to pay, an eviction could be filed with the court.

What a pane

Q: I rented a recently renovated home to a friend, but didn't ask for a deposit or advance rent. Since his girlfriend expressed an interest in choosing the window coverings, I told him I wasn't going to buy anything. The girlfriend then purchased $320 in window coverings and handed me the bill.

I agreed to pay $200, but I need to know if landlords are responsible for purchasing window coverings. If so, is there a rule on what window coverings to purchase? The girlfriend bought roll downs for every window on the front and back porch.

Smith: California's habitability laws do not require landlords to install or pay for window coverings in rental property. You comply with housing codes by providing windows that give adequate protection. Your $200 contribution toward the cost of the treatments was a kind gesture -- but was not legally required.

You have the right to prohibit the installation of the roll downs. Standard leases contain a clause that prohibits any alteration to the rental property without your permission. It sounds to me like they're taking advantage of your friendship.

Next time, set out the ground rules in writing regarding the condition of the premises, repairs and improvements. Finally, make sure you get a substantial security deposit to guard against tenant damage.

Kellman: It is true that there is no specific habitability law that requires window coverings. However, there is no law that forces a tenant to live in a truly glass house either. Uncovered windows create their own problems.

Will the landlord pay for the sun-faded and -damaged property? How about a little privacy? It is not fair to expect a tenant to install their own window coverings and then claim that the lease prohibits them from doing this alteration without permission.

This would mean the landlord could withhold that magical permission until the tenant agreed to install only the best coverings. The landlord could then claim that they must remain at the unit after the tenant moves. Nice move.

It seems more equitable for the landlord to supply basic coverings (mini-blinds etc.) and offer the tenant the opportunity to upgrade them at the tenant's expense.

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