Can Tenant Get a Refund for Below-par Apartment?

Robert S. Griswold | Steven R. Kellman | Ted Smith
8-June-2003 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 News Radio 600 KOGO, 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: Last year I rented an "apartment" in a converted garage. My dad, an architect, told me the window vents are too small as they have to be at least 3 feet for fire escape.

The local building officials said they sent letters to the owners stating that the place is zoned for one family only. There are already two adults living in the house. The city gave me their substandard housing complaint form to fill out. Can I rescind the month-to-month agreement and receive a full or partial refund?

ANSWER: Tenants' attorney Kellman: A dwelling rental unit must be legally zoned and permitted as a residence before a landlord can rent it. If a landlord does rent a dwelling unit that is not properly zoned or permitted, it may be said that the rental agreement is for an illegal or improper purpose.

The law does not condone or enforce contracts for illegal purposes including renting a dwelling that significantly does not conform to law. It is unlikely the city will rezone the house and all the corrections will be promptly made to rectify the situation. Therefore, you may seek to rescind (cancel) the agreement based on the illegal purpose of the contract or based on the implied misrepresentation that it was legal.

You will need to promptly vacate the unit and return the keys. You can then make a claim for the return of all the rent and other money paid, even the past rent. While refunding past rent may seem unfair to the landlord, public policy supports this view since it seeks to promote safe and lawful dwellings and to discourage renting out unlawful ones. If the landlord refuses the refund, you can use the small claims court to recover that rent and any other damages you may be entitled to such as moving costs.

Noises off

Question: What can be done about neighbors who are living in a one-bedroom apartment with two small children? The management says they will not ask them to move. The regulations state that only two people can live in a one-bedroom apartment. They are also extremely noisy.

Landlord's attorney Smith: Landlords may not discriminate against families with children. Although the subject of continuing legal debate, it is still believed that landlords can regulate occupancy maximums in rental property.

In California, most property managers apply the "two-per-bedroom- plus-one" standard. Four occupants to the one-bedroom would exceed the usual standard of three.

The rules and regulations of the apartment community regarding quiet conduct apply to adults and children alike. Unabated noise from the children constitutes a violation of the rules and the lease agreement. The apartment manager should carefully evaluate the conduct and issue warnings and proper legal notices to the offending tenant. If they continue, they could be evicted.

Your apartment manager may ask you to help the eviction case by testifying at trial about the problems and noises. This will be especially true if the tenant claims that the eviction notice is based on discrimination against children.

Hands on

Question: My landlord said my rent was increasing by $50 and that he put a notice on my door. I never found it and told him so. He says I still have to pay. What rights do I have as a tenant? I agree to pay the increase, but feel that since I never received the notice, he should have sent it by mail or hand delivered it to me.

Tenants' attorney Kellman: In a nonrent-controlled jurisdiction, a landlord may raise the rent in a periodic (i.e. month-to-month) tenancy at any time and for any amount. Legal procedures must be followed which include properly serving you a written notice of the rent increase.

The notice may be personally served to you. Under certain circumstances, however, it may be given to someone else at your home or posted on the door and then, in either of these two methods, another copy must be mailed to you.

The landlord may choose to use mail alone, but must add five days to the notice for the mailing. Thus, a 30-day notice of rent increase served by mail alone would be a 35 day notice.

If your rent increase will exceed 10 percent cumulatively within the last 12 months, an additional 30 days must be added to the rent raise notice period (i.e. 60-day notice). The law does not say your landlord must prove that you actually received the notice, only that it was "served" as per procedures.

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 2003 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