Is `Revenge' Rent Increase Legal?

Is "Revenge" Rent Increase Legal?

11-Jan-1998 Sunday
(Page H-6 )

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 "Real Estate Today!" (KOGO AM 600, Saturdays 1 p.m. to 2 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: Several months ago we began to have problems with a noisy and rude neighbor who does maintenance for the landlord. We complained repeatedly to the rental office to no avail. We then got word through our neighbors that the maintenance man bragged that he is going to get even with us for our complaints.

Two months ago, the manager served us -- a family of five who have been living here for more than three years -- with a rent increase for $50 citing a "small print" clause in our lease indicating that our lease is good for only four people and that an additional charge can be made for more occupants.

My husband refuses to pay the extra rent and we have now been served with a three-day Notice to Pay Rent or Quit. This seems retaliatory. Can they do this and what are our legal options?

A: Kellman: There is a difference between "can they do this" and "do they have the legal right to do this?"

The problem is that a landlord has the power to serve such notices any time he or she wants whether the notices are legal or not.

Once served, the tenant must prove the illegality of the notice or suffer an eviction. In this case, the actions of the landlord seem retaliatory and thus were a violation of the tenants' rights.

The landlord claimed that the raise in rent was due to an excess occupancy, a weak position since the condition existed for more than three one year leases. Using this as an excuse will probably be a real problem for the landlord if the matter is properly presented to a judge.

Even though the rent raise seems unlawful, I would advise paying it "under protest" to avoid the eviction and then to sue the landlord in Small Claims Court for the wrongful conduct.

Retaliatory acts (raising the rent, attempting to evict, cutting services) carry a penalty, paid to the tenant, of up to $1,000 plus actual damages suffered for each wrongful retaliatory act proven by the tenant.

Smith: I, of course, am on the landlord's side. You need to pay the increased rent if you want to live there. Apparently the noisy neighbor is not bad enough to make you want to move.

While it may be true that most landlords do not impose "per person rent," it is nevertheless legal as long as it is applied across-the-board without discrimination.

Under these facts, I believe you have not made an adequate case for retaliatory eviction, so your choices are to either pay the increased rent or vacate the premises.

Q: A tenant directly below me is a very heavy cigar and cigarette smoker. The smoke comes into my apartment through open windows directly below mine and also through the connecting air space in the kitchen cabinets and plumbing.

My apartment smells of smoke constantly.

I am on a month-to-month agreement, yet I love my apartment and do not want to move. The on-site manager has warned the tenant several times but says nothing can be done about my problem.

Are there laws or regulations to protect me? This, I feel, is hazardous to my health.

A: Smith: The landlord's right to restrict tobacco smoking in apartments has not been settled by the California courts.

Smoking in the apartment causes increased wear and tear, and can be bothersome to other tenants. But doesn't a person have the constitutional right to smoke in the privacy of his or her own home? After all, it's not an airplane or restaurant.

You could ask the manager to request the offending smoker to move. They could initiate eviction proceedings, but they are not legally required to. It might be better for you to ask to be relocated to another unit in the building away from the smoke.

Kellman: Although prohibited in many enclosed places such as bars, restaurants and airplanes, smoking remains a lawful activity.

The last place of refuge is the home. But even here, the smoker is under attack.

The right to breathe clean air is making great strides against the personal right to smoke.

Landlords complain about the damage smoking residue can cause to the interior of the rental and non-smoking neighbor tenants do not want to smell or breathe the smoke. This can easily clash with the smoker's desire to smoke without being hassled. There does not appear to be any specific law that covers your situation yet. General California law does provide some assistance. Smoking is legal in the apartment, but the smoker still has some responsibility to protect others from being harmed or annoyed by the smoke.

It's like playing the radio. It's legal, but when the music is too loud, it can become harassing and subject to action by the manager or even the police.

If the smoke bothers you enough, the manager should take action just as if it were a noise complaint. The smoking tenant can take some preventive measures, including buying an inexpensive air filter, and solve much of the problem.

A solution should be sought that seeks to meet the needs, and respect the rights, of both neighbors.

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 1998 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