Don't Withhold Your Rent

16-Feb-1997 Sunday
(Page H-13 )

This column on issues confronting renters and landlords is written by Certified Property Manager Robert Griswold, host of KSDO Radio's "Real Estate Management Today!" (Saturdays, 2-4 p.m.) and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

Q: My apartment building has washers and dryers in the common area for the tenants to use. Unfortunately, all the machines are routinely broken. Can I withhold my rent? Or can I deduct the cost if I have the machines repaired?

A: Griswold: No, you should not withhold rent, as common-area washers and dryers are not essential items for habitation as specified in the California Civil Code. Nor should you attempt to have the machines repaired yourself and then deduct the cost from your rent. Common-area washers and dryers are merely an amenity that the owner provides as a courtesy. I suggest that you send a letter to your manager signed by you and other tenants expressing your concerns over the continued disrepair of the machines. Many times, there may be a problem with theft or vandalism. A single break-in to a coin-operated washer or dryer can result in damage of several hundred dollars to the machine while the actual loss of coins is only a few dollars. A landlord's frustration in these circumstances is understandable and unfortunately it is the law-abiding tenants who suffer. In this case, try to work together to develop a solution to make the laundry area more secure. One solution might be for tenants to agree to a slightly higher monthly rent in return for installation of free washers and dryers that are operable only by keys held by tenants. If the landlord continues to ignore the problem, it will lead to the best tenants leaving to live where they are appreciated and where the landlord and tenants work together to solve problems.

Kellman: Under California law, a tenant may withhold rent under certain circumstances where the conditions of the rental are so bad so as affect the health and safety of the occupants: lack of heat, plumbing leaks, insect infestation, etc. The tenant must first notify and give the landlord an opportunity to do the repairs. There are many conditions, however, that occur at rentals that do not affect habitability, such as inoperative washers or dryers. The law will not allow the withholding of rent for these types of problems nor may the tenant repair such machines and deduct the cost from the rent. The tenant may, however, consider the landlord in breach of the contract and take the landlord to Small Claims Court over the lack of a convenience that had been presented as an amenity. But withholding rent may result in an eviction. Therefore, legal advice should be sought before taking such action.

Q: I vacated my apartment over three months ago and still have not received my security deposit or an accounting. I even spoke with an attorney. Still nothing. Can I get an attorney on a contingency fee? Is there a more expedient way to handle this?

A: Griswold: The California Civil Code says you should receive a detailed accounting along with the remaining balance, if any, of your security deposit within 21 days of legally vacating the premises. My first advice is for you to call and inquire about your deposit. If you do not get a satisfactory response, then send a letter by certified mail to the owner or manager of the property demanding the required accounting of your deposit within 10 business days. If you are still unsuccessful, you should proceed to Small Claims Court and file the paperwork yourself. Unless you have a deposit of several thousand dollars, it is extremely unlikely that you would be able to retain an attorney on a contingency fee. Furthermore, the steps I have outlined are very straightforward and can easily be handled yourself at minimal expense.

Q: I own a small apartment building. Recently, a friend who owns some apartments stated that he always serves tenants that fail to pay rent with both a three-day notice to pay rent or quit and a 30-day notice to vacate. Is this a good idea?

A: Smith: There is nothing to prevent you from doing this, but I do not think it is a good idea. Here's why. If your resident pays the amount demanded in the three-day notice, he or she could argue that by accepting the rent, you have waived your right to evict him or her based on the 30-day notice. A tenant will argue to the judge that they were confused and believed that if they paid the rent, they would be permitted to stay. To solve this problem, I suggest you first serve a three-day notice to pay rent or quit. If the resident does not pay within the three-day period, you may proceed on the three-day notice. If they do pay, you serve the 30-day notice and proceed on it at the expiration of the notice if they do not voluntarily vacate. You are entitled to receive the rent, even though you have served them with a 30-day notice. Just be sure you do not accept rent for any period beyond the expiration date of the 30-day notice.

Q: I am an on-site manager at a large apartment building. My new owner wants to include language in the rental agreement that gives his agent the right to enter each apartment two times per year to inspect the smoke detector and check for leaky faucets and other items needing repair. Currently, we use a written maintenance request system where the tenant specifically can give us permission to enter when he or she is not home. This has worked well. Some of the tenants have heard about the proposed system of biannual inspections and are so concerned that they claim they will move. Can the new owner do this?

A: Kellman: The law allows the landlord the right to enter the premises under certain conditions and situations and with due notice to the tenant. For example, entry is permitted to make necessary or agreed-upon repairs, improvements or alterations. The unit may be shown to applicants or to agents of mortgage banks. The law specifies many reasons to enter, including emergencies. However, the one ground specifically not mentioned as an acceptable reason for an entry is for the purpose of making an inspection. Be aware, however, that if the landlord cannot make inspections, the tenant must be sure to report all problems before they cause any property damage. Otherwise, the tenant risks having some liability for the damage. The best solution is to have a compromise that allows limited inspections while still respecting the tenant's right of privacy.

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 191, San Diego, CA, 92112. Or you may e-mail them at rgriswold@retodayradio.com

Back to 1997 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