Air-conditioning Usually an Amenity

Read the Lease Before You sign it, including important fine printir-conditioning Usually an Amenity

Robert S. Griswold | Steven R. Kellman | Ted Smith
07-September-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: In California, if the landlord will not fix the air- conditioning unit can the tenant break the lease?

ANSWER: Kellman: Generally, you are responsible for the rent through the balance of the lease term. If you vacate before the lease expires, you may be held responsible for the lost rent and the costs associated with renting the dwelling.

Leases may be broken (i.e. terminated) in a variety of ways. In some cases, you may move out without owing anything. One way to be relieved of the lease is when the landlord commits a material breach of the contract. Another way is when the dwelling has significant habitability defects and, despite your notice to the landlord, the problems remain unrepaired.

Functioning air-conditioning is usually considered an amenity and not a habitability requirement unless you live in an area, such as Borrego Springs, which experiences high temperatures or you have a medical condition requiring an air-conditioner.

In cases where air-conditioning is not a habitability requirement but is merely a comfort issue, you would have a claim for damages for the lack of that amenity but the lease may still remain in force.

In those cases, you may wish to proceed with the repair yourself and deduct the cost. Do this only if you've first given notice of the problem and it is not corrected. Before moving out on a lease or repairing and deducting, seek legal advice since either action could land you in court.

Tenants Rights Attorney Smith: Steve correctly points out that, generally speaking and in most areas, a functioning air-conditioner is considered an amenity and not an item of habitability in the rental. The law has not raised the necessity of air-conditioning to that of its counterpart - - a working heating unit -- which is an item of habitability.

So, the short answer is that you may not break your lease because of the air-conditioning problem. You will be held accountable for the balance of the lease up until the point the landlord successfully re-leases the rental to a qualified tenant.

Assume, for the moment, that air-conditioning was an item of habitability. It would still be my opinion that it is not a material breach of the warranty of habitability to rise to the level of construction eviction.

Constructive eviction is a term given to a situation where the premises are so bad that the tenant is allowed to walk away from the lease and consider it null and void without further liability. But, to show constructive eviction as a basis for termination of a lease, you're going to have to present to the court facts of an extreme nature, tantamount to the premises being virtually 100 percent uninhabitable.

Question: I am a tenant in California and my family is looking to break this contract. Our lease mentions some Civil Code section but I wanted to know how I can get out of the lease even though there is a month left. Can we break it if the reason is a life-altering situation, such as a child going to college or a parent getting a new job?

Property Manager Griswold: No, you cannot unilaterally break your lease just because your circumstances have changed. There are very limited reasons to break a lease unless both parties mutually agree. The state Civil Code sections quoted in your lease are standard and essentially indicate that you are responsible for the balance of the lease subject to reasonable efforts by the landlord to mitigate or minimize your damages by attempting to re-lease your unit. Of course, you are responsible for the reasonable costs incurred by the landlord and with only 30 days left on your lease it is very unlikely that the landlord can get your rental unit ready for occupancy and get a new tenant to move in within so short a time frame. Also, note that the landlord retains the right to market other vacant rental units he may have and is not obligated to place your unit at the top of the list over other vacancies. But a landlord must make sure to let prospective tenants know that your unit is available.

Question: I took a downstairs apartment out of desperation. The people upstairs are of the heavy type. This is a cheap apartment with no soundproofing. When they stomp across the floor, they make it sound like I am living near Baghdad. My answer is to move. But that will be a few months away. I've talked to them. No good. Not their fault. Now another family has moved in! That's breaking their lease. So there are four large adults and two babies up there. I have notified the management, and they claim to have given them a warning. Any suggestions?

Tenants Rights Attorney Smith: Fair housing laws require the landlord to have an open rental policy to qualified tenants. It would be illegal to evict them based solely on their physical characteristics.

However, there is a distinct violation by having extra people occupy the rental. For this reason alone, the landlord could take legal steps to evict them and probably should do so under the circumstances given the over-occupancy and the disturbance issues.

You could vacate the premises but it's my view that the landlord could still hold you to the lease.

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