Lease Offer Was a One-time Deal

Robert S. Griswold | Steven R. Kellman | Ted Smith
8-October-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 We live in an apartment and upon moving in we immediately ran into problems with the property manager. Within the first two weeks she called me into her office and began to list the numerous things that she claims my children had done wrong.

At that point she verbally gave me the option of terminating the 11 months
remaining on our lease if we were unhappy. We chose to stay and even
renewed our lease recently for an additional 12 months.

We finally have had it and want to find another place to live or buy a
home. We gave her our 30-day notice and told her we were going to take her up on her offer. She then said she meant only at that time. This was never mentioned to me. Does she have to honor this statement?

ANSWER Griswold: No, absent anything in writing to the contrary, I believe based on the facts you presented that the mananger made a one-time offer. Clearly it was not her intent to give you the option of moving any time you would like over the next couple of years.

If there were problems with your children when you first moved in, it may
have been a reasonable resolution to allow you to break your lease and
leave without penalty. However, to now decide you want to break your lease and bring up a conversation from nearly two years ago is unreasonable.

Providing you with a unilateral ability to break a lease at any time based
on the alleged misdeeds of your children when you first moved in would
almost be considered a "reward."

A lease conveys rights and responsibilities to both the owner and the
tenant and it would be highly unusual for one party to give the other the
open-ended ability to terminate the lease whenever they chose. You also may have benefited from a lower monthly rental rate by virtue of the lease. I suggest that you wait until the end of this lease period and then give
proper notice to move.

Smith: I agree with Robert: It's a one-time offer that you failed to accept
in a timely manner. It seems to be unreasonable for you to construe her
verbal comment much earlier in time as a continuing offer to get out of
your lease upon 30 days notice.

Further, since the original lease was required to be in writing to be
enforceable under the statute of frauds, an agreement terminating your
lease would likewise be required to be in writing in order to be
enforceable.

Let's dish

I just moved into a new apartment and after being told that I could put up
my mini-satellite dish, I am now being told I can't. I understand if the
owner doesn't want me mounting the dish on the complex roof, but I was told that the reason was because the property owner had an agreement with the local cable company that they would be the sole provider of cable service to the building.

This seems a little dodgy; what if the cable company doesn't provide the
same programming as, say, DirecTV? If the property owners don't want me to nail a dish to the roof, fine, but can I be prevented from using it inside the apartment and aiming it out a window or off a balcony?

Smith: Following considerable debate, the Federal Communications Commission has issued an order requiring the nation's landlords to allow their tenants the limited right to install a satellite dish or receiving antenna in the leased premises. The tenant may install a mini-dish smaller than 1 meter -- most are 18 inches wide.

The dish must be placed inside the tenant's dwelling, or in an area outside
the tenant's dwelling such as a balcony, patio, yard, etc., of which the
tenant has exclusive use under lease. This rules out installation on the
roof, exterior wall, window, window sill, fence, or common areas, including carports.

The dish or antenna may not protrude beyond the vertical or horizontal
space that is leased to the resident. This usually means that the dish must
be recessed far enough into the balcony or patio so it does not extend over
the railing. The tenant pays for all costs to install and maintain the
dish.

I would need to take a close look at the landlord's contract with the cable
company.

If you install the dish based on the above requirements, it is unlikely
that your installation would put the landlord in violation of his exclusive
contract with the cable company.

Kellman: While Mr. Smith has given you some basic information, here are the details. In 1996, the Federal Communications Commission adopted a rule known as 47 C.F.R. Section 1.4000. This rule prohibited restrictions
regarding the installation, maintenance or use of "mini-satellite dish" (1
meter or less in diameter), TV and wireless cable antennas that are for
receiving video programming.

The rule mostly concerned condo owners but it was amended to include
protection for tenants. As of Jan. 22, 1999, that rule now permits the
installation of these antennas on parts of rental properties over which the
tenant has exclusive use or control like a balcony or a patio.

Unless your landlord's restriction about the installation of a mini-dish
antenna is based on a genuine safety issue or to preserve a historic site,
it appears to be an invalid rule that may very well violate federal law.

Who's responsible?

A friend of mine is a resident manager for a 36-unit apartment complex. She has no contract with her owner. She receives free rent only and is not paid any cash. She does not receive a weekly pay slip for Social Security
deductions and has never gotten any income reporting or other tax forms.

She was recently hurt at work and had to go to a doctor. The doctor would
not provide medical care because her owner did not have a workman's
compensation number. Does she have any recourse?

Smith: State and federal laws are complex, particularly as applied to
persons who are required to reside on the premises as a condition of
employment. Your friend for sure is entitled to at least minimum wage, even without regard to value for the apartment.

When the manager resides in the apartment as a condition of employment, the maximum monthly rate they can be charged is two-thirds of the value to the general public. This is further limited by the requirement that there be a voluntary written agreement executed between the apartment owner and
manager, and -- in the case of a single employee -- the maximum monthly
rent that can be charged is further limited.

If the rental value is not being used as a credit against wages, there is
no upper dollar amount (other than the two-thirds rule) on the maximum
monthly rent that can be charged. In this case, your friend will pay rent
to her employer each month with cash, check, or money order. The employer, in turn, will pay regularly wages without offset for lodging credit. Check with your labor or tax professional with respect to the facts of your particular case.

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