Who's Responsible for Paying for Unnecessary Service?

Robert S. Griswold | Steven R. Kellman | Ted Smith
30-April-2000 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.

Q: We have a tenant who notified us that his air conditioner was not working properly. We called a service technician who found nothing wrong, but submitted a bill for the service call.

This tenant is on the typical apartment association month-to-month rental agreement. We sent the bill to the tenant to reimburse us for this service charge since there was nothing wrong. He declined to pay because he says
the rental agreement makes no provision on who will pay for inspections, thus the charge defaults to the landlord. He states he found something in the California Civil Code that addresses this issue.

A: Griswold -- Air conditioning is not a habitability item; however, if the rental unit had air conditioning then the owner has an obligation to keep it in operating condition. I am not aware of any particular civil code section that would address the specific issue at hand here and thus prevent you from charging the tenant for the service call.

However, from a tenant relations standpoint, I would think that it would only be appropriate to charge the tenant if you felt that the tenant knew that the service call was vindictive or a waste of time or in the event that the tenant had damaged the air-conditioning unit.

Hopefully, your service technician also took the opportunity during the inspection to lubricate the unit and replace the air filter. Such servicing is advisable each year and is clearly beneficial to you and should be part of your preventive maintenance program for a major component of your rental property.

Further, this type of preventive maintenance should be your financial responsibility absent any mitigating factors indicating that the tenant created a problem.

While I am a property manager and represent owners, I believe that it is important to treat everyone fairly. Thus, if the tenant requested the air-conditioning service call in good faith (and you did not warn them in advance that they would be responsible if nothing was wrong) then the service call is part of your cost of doing business.

Sickening carpet

Q: My son, his pregnant wife and toddler have rented for 1 1/2 years; first
under a one-year lease and now month to month. The carpet is more than 20 years old and has caused medical problems to their toddler. They have a doctor's statement and sent this to the landlord management firm with their rent check requesting the carpet be replaced.

The apartment manager indicated the landlord would replace the carpet but would raise the rent $40 a month. My son told her they could not afford this dollar amount but would compromise and pay $20 a month more. The manager came back with $25 and asked for another year's lease. My son and his family are hoping to relocate, do not want to sign a lease, but do want the carpet replaced because of health reasons.

My son and his wife have improved the condition of the rental property making it much more attractive and therefore when they do leave, the manager will be able to get more rent from this property.

Do they have to pay the increase in rent if the carpet is replaced? Do they have to sign a year's lease?

A: Smith -- California landlords are required to make rental property habitable. The perfect, aesthetically pleasing rental is not required -- essential services and minimum living conditions will suffice.

In my opinion, the carpet -- even though old -- more than satisfies the minimum habitability requirement. Its condition poses no risk to safety. The health claims arising out of the carpet condition are a separate issue.

You must pay rent if you intend to live there. The $25 rental increase is modest and reasonable -- especially in this rental market. Your landlord has the right to ask you to sign a new lease. There is nothing illegal about this request.

If you intend to remain in possession, you'll have to come to terms with your landlord; otherwise, you'll have to vacate the premises. You may have a separate action for medical expenses based on the problems from the carpet, but old carpet does not, by itself, render the rental uninhabitable.

Kellman -- While carpet is not legally required, if it is supplied in the rental, it must be properly maintained. The average carpet used in rentals has a useful life of between seven to 10 years. Thus, after that period is up, the carpet has depreciated to be of no real value.

Old worn carpets can cause many health problems and can definitely affect the habitability of a rental. Carpets can become embedded with dirt, mold, mildew or other contaminants such that they can no longer be effectively cleaned. They can become so worn that they pose a danger from exposed carpet nails and they can be so frayed that they are a trip-and-fall hazard.

Once the carpet poses a problem for health and safety, it should promptly be replaced at the sole expense of the landlord with no conditions attached
like signing a new lease or raising the rent. Keep in mind that in nonrent controlled cities (such as San Diego), a landlord may generally raise the rent without a specific reason to do so.

Any medical problems caused by a defective carpet, which should have been replaced years ago, may be the subject of a claim for damages including the refund of some rent paid for a substandard dwelling.

How high is high?

Q:What is the legal amount a landlord can raise the rent each year in California?

A: Griswold -- There is no legal limit on the amount a landlord can raise the rent in California, except if the property is located in a rent control area (parts of the San Francisco Bay Area and parts of Los Angeles County -- call your local city or county if you think you might be living in a property subject to rent control).

The landlord should obviously not raise the rent beyond the market level or he will lose their tenants.

Three-day notices

Q: I am paying my rent weekly to the landlord. If a landlord serves a seven-day notice to terminate the tenancy, does she also have to serve a three-day to pay rent or quit?

A: Smith -- Week-to-week tenancies are rare, but they are legal. The renter occupies the room or apartment on a week-to-week basis and the rent is paid weekly instead of monthly.

This tenancy can be legally terminated by seven-day written notice. Like its month-to-month counterpart, either the landlord or tenant may terminate
the week-to-week tenancy. If the weekly rent is not paid, the landlord may,
in addition to the seven-day notice, also serve a three-day notice to pay rent or quit.

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 2000 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