Law Doesn't Provide for a `Military Clause'

Law Doesn't Provide for a "Military Clause"

05-Oct-1997 Sunday
(Page H-26 )

Robert Griswold | Steven R. Kellman | Ted Smith
This column on issues confronting renters and landlords is written by Certified Property Manager Robert Griswold, host of KSDO Radio's "Real Estate Today!" (Saturdays, 2-3 p.m., AM 1130) and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

Q: I am a resident manager who recently relocated to San Diego from another state. Last week I had an applicant ask for a "military clause." The family claims that all military personnel are entitled to this clause since they may have to relocate to another military installation prior to the expiration of the lease. Such a clause, they said, would allow them to give a 30-day notice regardless of the length of time remaining on their lease. Is this true?

A: Smith: No, and I'm glad you asked. California law does not have any provision relieving military personnel from liability under a lease. Servicemen and women can't use the Soldiers and Sailors Civil Relief Act of 1940 to get out of a lease. The so-called "military clause" could be included in a lease, but the manager does not have to agree to this. If you do agree, then standard wording would include the right to terminate the lease with a 30-day notice upon long-term deployment or permanent change in military duty station.

Kellman: Just a second, Ted. You're right, landlords are not obligated to incorporate a "military clause" when renting to servicemen or women. But landlords shouldn't be so quick to reject such a clause. Military personnel are often desirable tenants in this community. They have a steady job with a dependable paycheck. Further, their conduct is not only governed by California law but is also subject to military codes, giving them a double incentive to be good tenants. Thus, adding a military clause not only shows support for our neighbors in the military, but may benefit the landlord by attracting desirable tenants. And, from a practical viewpoint, the landlord who grants a military clause has a competitive edge.

Q: There are a lot of children in our Ramona apartment complex. And at times, it can get rather noisy. However, our new manager is going too far with rules focusing on children's behavior. For example, we just received rules that state "Children must be supervised at all times. Resident assumes responsibility for children visiting their unit. No skateboarding, roller skating, Roller Blading, or bicycling are allowed in common areas. Children are not allowed to run up and down the stairs or walkways." Can they have rules like this?

A: Griswold: Ted and Steve must be rubbing off on me as my answer is "It depends." Children are a protected class under federal legislation enacted in 1988. According to the Fair Housing Council of San Diego, discrimination in rental housing against families is still all too common.

Owners and property managers must be careful writing rules, regulations, and policies to avoid unintentional discrimination against children. Allowed are reasonable rules or policies that pertain to the safety of children.

However, any rules that discourage families with children from renting could subject an owner or manager to charges of unlawful discrimination.

Rules that begin "Children are not allowed to . . . " are almost always going to lead to trouble. The generic "Children must be supervised at all times when . . . " is generally acceptable when the intent is aimed at safety rather than an attempt to restrict or limit use of facilities by children.

In other words, a policy that children must be supervised and accompanied by an adult to use the pool is not only acceptable but important from a safety standpoint. However, having a separate "children's" or "family" pool or a policy that children can only use the pool during limited hours is unacceptable.

When it applies to all age groups, a rule prohibiting skateboarding or roller skating is fine.

For more information, contact the Fair Housing Council of San Diego at (619) 699-5888. The council is a nonprofit association, not a government agency, that is supported by a diverse membership committed to offering information and education. It provides training, conducts investigations and answers questions.

When renting, look for property owners and managers who support the Fair Housing Council and provide equal access to housing for all.

Q: I own a three-unit apartment building and have a relative acting as the property manager. I pay him, but he doesn't do a good job. Shouldn't the property manager make periodic inspections of the property and contact service people when repairs are needed? Is there is a guidebook or manual available that outlines the job duties of a property manager for a small apartment building?

A: Griswold: The job description for your property manager is strictly a matter of negotiation between you as the owner and your property manager. It is extremely important that periodic inspections are made of the property. From a legal standpoint either the owner or property manager can perform them.

Naturally, one of the primary benefits in hiring a property manager for a small apartment building is that the property manager will make the inspections, collect the rent, make minor repairs, pay the bills and supervise work done by contractors.

I am not aware of a guide or manual outlining the job duties of a property manager specifically for a small apartment building.

Unfortunately, there are very few books that are written for the owners of rental homes and small apartment buildings. You may want to review property management contracts signed between owners and property managers as they provide a general overview of the responsibilities of the property manager. One commonly used is the California Association of Realtors property management agreement (Form PMA-14) available at the San Diego Association of Realtors bookstore at 4845 Ronson Court in Kearny Mesa.

Smith: I'm concerned that your relative is not licensed by the California Department of Real Estate (DRE). Generally, when a person (not a resident manager) acts on behalf of someone else in a real estate management capacity (negotiating leases, collecting rents, etc.) he or she should be licensed by the DRE.

The fact that he is your relative does not change the license requirement. There are exemptions to this requirement: for on-site resident managers and leasing personnel as well as certain employees of licensed property management firms.

Q: I have just been told my monthly rent will go up by $100, which I feel is unjustified. Can you provide me with the name of an organization that handles disputes between renters and landlords?

A: Kellman: Landlords in San Diego County are not restricted from raising the rent to any level they feel the market will bear (with some exceptions such as with subsidized housing).

But rent may not be raised in retaliation for complaints or for other protected activities of the tenant such as forming a tenants' association. Rent raises may not be discriminatory, either. Landlords do not need to justify their rent raises unless a dispute arises wherein you claim the raise is retaliatory or discriminatory.

If it gets that far, that dispute may be headed for a judge.

If you do not agree with a rent raise, you should pay the increased rent "under protest" to protect your rights and then seek legal advice.

Smith: Mr. Kellman, true to form, complains about rental increases and implies each rental increase is levied with a retaliatory or discriminatory motive by the landlord.

Of course, nothing is further from the truth.

The fact is that, for years, landlords have not raised rents, given the downturn in market conditions in multihousing rentals. Finally, the market slowly improved and in a free enterprise economy, landlords exercised their rights to raise rents with proper 30-day notice on month-to-month tenancies.

I realize this may be a burdensome rental increase to you, but many residents do acknowledge they had become complacent in the economic downturn because their rents never were raised.

Landlords appreciate a long-term tenancy, but at the same time, they have the right to realize a decent return on their investment.

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.

FHEO Logo

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