Personal Items Were Tossed Out Without Tenants' Knowledge

Robert S. Griswold | Steven R. Kellman | Ted Smith
24-September-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.

QUESTION I live in a four-unit house. There is a one-car garage that
everyone in the four units share; it's used strictly for the storage of
personal belongings of the tenants. I had my bicycle and some boxes that I
use for moving stored there.

Over the years, abandoned items from previous renters have found permanent homes in the garage. Last year, the property manager sent notices to the tenants to mark and label their property so unwanted property can be discarded. I complied and marked and labeled my boxes and bike.

An appointment was scheduled by phone between one of the property managers and all of the tenants so we could physically point out what belonged to us.

Four months later, another notice told us any unclaimed property from the
storage garage will be removed. I discovered one week later that everything in the storage area was removed including my bicycle and storage boxes, which were all labeled and marked.

I was told later by the property manager that my property was being stored
at another storage garage and that I would need to make an appointment to
pick it all up.

When I was able to schedule an appointment some time afterward to retrieve my property, I was told that it was all thrown out or donated to charity. I'm obviously upset and would like at the very least my bicycle back or reimbursement. Do I have a legitimate case or not?

ANSWER Griswold: Based on the situation you described, I believe management was irresponsible in their handling of the situation and did not follow proper procedure by legally notifying tenants with a "Notice of Belief of Abandoned Property" form.

The situation of allowing storage in the garage to begin with was probably
a very poor idea, but that doesn't mean the management can be irresponsible and discard people's personal possessions without being extremely careful and literally having each tenant go through the garage and view the items to be disposed and then sign off on a waiver. Then it would be the tenant's fault.

So unless they really did go out of their way and you dropped the ball or
you waited an unreasonable amount of time without making an appointment, then you should take your case to small claims court.

Kellman: Your landlord did not just give you the use of a community garage for storage. They provided you a specific storage space as part of the rental fee you pay each month. They maintained control over its use and of the stored contents (notices, labeling, moving to another storage, etc.).

By doing so, your landlord accepted the responsibility to exercise
reasonable care to safeguard your property as if it was in a storage
facility. Thus, they had a duty to use some efforts to try and prevent the
items from being thrown out or otherwise given away.

They failed in that duty and should be held liable for your losses for
which you may wish to make a claim. To do so, you should prepare an
inventory list of the lost items. Put the value for each item as what it
was worth at the time of the loss (actual cash value).

The law does not provide for replacement cost (unless you had renter's
insurance with that coverage). Thus, if your bicycle cost $500 new but was worth $300 when lost, you are limited to claim $300. Some things are
difficult to value like old photos and sentimental items.

List the value of these type of items as what they were worth to you
including some basis for each such valuation. Present the list to your
landlord and ask for reimbursement based on the circumstances of the case.

If they, or their insurance, will not settle the claim, consider resolving
the matter in small claims court.

Vindictive or justified?

I have been a tenant in an apartment building for over 13 years. Two months ago, my landlord overheard me complain to my friend about a hot water problem in my rental unit. He denies there is a problem and refuses to even attempt to fix it.

All he can tell me is that I should move out if I don't like living here.
It has been more than 60 days and he still has not fixed the problem but he
did raise my rent. This is the first rent increase in nearly 10 years.

Further, he will no longer collect my mail while I'm on the road working.
Do I have rights based on a retaliatory rent increase or a reduction of
services for not accepting my mail?

Griswold: While you have a strong circumstantial case for claiming that you received a retaliatory rent increase, that is all. You would have the
burden of proof that the increase was directly related to some action that
you took to protect your rights -- like calling the health department or
the media or a governmental agency. Just complaining to your neighbor does not rise to this level.

Further, the rental market has seen very significant increases in rental
rates since 1990 and the fact that your landlord raised your rent recently
is not unusual. Remember that the courts will allow the landlord to raise
the rent and that is why the burden of proof is on the tenant, otherwise
every tenant would claim their rent increase is retaliatory so they can get
out of paying more.

Typically, what happens in retaliation is a complaint to the government
authorities followed by a significant rent increase that may even push the
rent higher than the market rate.

Another way to look at the situation is whether you were the only one to
get a rent increase and are you now paying significantly more than other
tenants with similar rental units. If so, contact a tenants rights
attorney. The mail situation is fairly simple -- unless you have a written
agreement that the landlord must accept your mail, then the landlord is
under no obligation to do this.

I regularly advise landlords not to accept tenant's mail or packages due to
the landlord's liability if the items are lost, stolen or damaged. The
downsides for the landlord or management company are many compared to the minimal appreciation they will receive.

There is nothing you can do about this other than ask if they will do it in
the future but the decision is entirely up to the landlord. You should
notify your landlord about the hot water problem in writing. While they
still may not do anything about it, it is important to preserve your rights
and establish notice that you put it in writing as soon as possible.

Be sure to indicate how long this has been going on and the fact that you
have spoken to your landlord and approximately when and what has or has not happened since.

Kellman: If a complaint about habitability results in an increase in rent
or decrease in services, it could be retaliatory and thus illegal. Here,
the problem with the hot water may qualify if it is significant, like not
having any or maybe having water that is too hot.

A rent raise that is a direct response to a complaint may be retaliatory.
You will have to prove that the rent raise was motivated by a desire to
retaliate rather than a desire for increased income from the property.

In a nonrent-controlled jurisdiction, greed is legal. As to the mail, if
that was a service provided by the landlord that is being withheld based on a complaint about the hot water, it could be another form of retaliation.

Again you will need to prove that the mail handling was an expected service and part of your agreement since your landlord is usually under no duty to collect your mail.

To claim your rights under this retaliation law, you must first make a
complaint to your landlord, or an appropriate governmental agency, about
the problems, which then results in the retaliatory landlord action. If
your landlord is guilty under this law, the rent raise could be blocked and
he may have to pay you a penalty of up to $1,000 plus actual damages
incurred.

In your case, you complained to a friend which the landlord overheard. This is not the type of complaint the law requires since it may be complicated with misunderstandings and miscommunications.

Put your concerns or complaints in a polite letter to your landlord and
give him a chance to resolve the problem before you claim that he violated
this law.

Move 'em out

I rent a house and recently the landlord passed away. Now I understand that the family members who have inherited the house plan to sell it. Do they have the right to just move me out?

Griswold: In most cases they can. If you have a month-to-month rental
agreement, then the current legal owner would just need to serve you with a written 30-day notice to terminate tenancy. If you have a long-term lease,
then the lease agreement would need to be honored by the new owner.

However, the new owner is under no obligation to extend or renew your lease agreement beyond the existing term.

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