the Lease Before You sign it, including important fine printir-conditioning
Usually an Amenity
Robert S. Griswold | Steven R. Kellman | Ted Smith
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
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
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
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.
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 firstname.lastname@example.org
2003 Rental Roundtable
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.
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
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All Rights Reserved.