Be Careful Deducting Repairs from Rent

Robert S. Griswold | Steven R. Kellman | Ted Smith
17-August-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: We have been renting a home for several years on a month-to-month basis. Over that time, we've made repairs to fix either safety or health risks to our family. Some of the repairs that were made were approved by our landlord and other problems were ignored. The problems that were ignored we still repaired. But the landlord has been told about all the repairs prior to us making them.

We were never reimbursed for these repairs nor did we deduct the cost from our rent payments. Now there are new items to fix. We have made the landlord aware of these issues and they are being ignored as were the others. We don't feel we should spend the money to have these repairs made.

ANSWER: Tenant's attorney Kellman: Your landlord should be making all necessary repairs. If your landlord refuses to repair a condition or defect (especially ones that affect health and safety), after reasonable notice of the problem, you have the option to repair it yourself and deduct the cost from next month's rent. The law limits this remedy to a repair bill that does not exceed a month's rent and you cannot do this more than twice a year. Also, this remedy is not available to you if you caused the damage by use beyond ordinary wear and tear. Be sure of the significance of the defect and do not forget to give reasonable notice of it to the landlord before deducting the cost from the rent.

If the landlord objects to the deduction, an attorney like Ted Smith may be filing an eviction case against you for nonpayment of rent. In some cases, you may bring such a claim for repair bills you paid as long as four years ago, while other claims must be made much sooner. Therefore, it is better to make any such claims as soon as possible to avoid any statute of limitation restrictions.

You are entitled to reimbursement for the repairs your landlord approved and probably also the ones not approved if they were necessary and you had given ample notice before doing them. If the landlord does not honor your claim, you may use the Small Claims Court to settle the matter.

I came home after work Sunday night to find firemen in my rental condominium removing my belongings. A hot water pipe from the unit above mine had broken and 500 to 700 gallons of water were inside my unit and soaking my belongings.

Ceilings and walls were coming down and a restoration person had already started working on the upstairs unit when I arrived. He worked on my unit until 3 a.m. the first night and for several days thereafter. I am still in a motel and will be at least until the end of next week.

Question: Is my landlord or the homeowner association responsible for my damaged personal items or perhaps the owner of the condo above me? My mattress and furniture were soaked, the drawers on chests won't open, upholstered items and clothing are damaged. Please advise.

Property manager Griswold: Contact your renter's insurance carrier and they will take care of you and then they can subrogate against the other unit owner and/or the homeowner association.

If you don't have renter's insurance, you are at the mercy of the insurance carriers of your landlord, and/or the other unit owner, and/or the homeowner association. Make a claim to them, but your situation is clearly proof as to the importance for renters to have a good insurance policy.

Your renter's insurance company will take care of you immediately and then can hassle with the other parties to determine who is ultimately responsible while you attempt to return your life back to normal.

Question: I am a primary tenant in a three-bedroom house in which one of my roommates was required to go back to Japan because his visa is expiring. We added a new roommate without realizing that our contract with the landlord prohibited subleasing. Thus, our landlord does not know that the third person living with us is no longer the same. The new roommate signed into a contract with us (me being the landlord and he being the tenant) in which the lease terms stated that he is required to pay his portion of rent. But he broke his lease and moved out, and has since refused to help find a new roommate and/or pay for his portion of rent.

Do I have a valid claim to take him to Small Claims Court since the contract is in writing and signed by both him and myself?

Tenant's attorney Kellman: Generally, void contracts are unenforceable and a sublease with that new roommate could be rendered void since the main lease prohibited subleasing.

If it were a void sublease, you may have a problem enforcing it against that new roommate for the balance of the lease term. Even prohibited subleases may become authorized and made valid by certain actions of the parties.

If your landlord became aware of the sublease and did not object, that sublease prohibition may be waived.

Although we have been discussing subleasing, the reality in your situation is that you may not be subleasing at all but merely replacing the original tenant who had to move out. The waiver law also applies to a replacement tenant who may become an authorized resident by knowledge of the landlord of the new residency without objection. The new roommate's occupancy may have actually been protected by the lease itself which allowed for a certain number of roommates.

You may also be protected by various state and federal fair housing laws prohibiting a landlord from unreasonably limiting the number of occupants in a rental. In a three-bedroom home, certain government guidelines suggest that seven to eight persons may live there.

As such, if the residency of the new roommate could be validated, you could then claim the lost rent from him and find another roommate to fill the space. It would be best to let the landlord know what you are doing so future problems could be avoided.

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