Does Pounding and Banging of Renovation Merit Tenant Rent Credit?

ROBERT GRISWOLD | STEVEN R. KELLMAN | TED SMITH
15-Feb-1998 Sunday

This column on issues confronting renters and landlords is written by Certified Property Manager Robert Griswold, host of "Real Estate Today!" (K0GO Radio, AM 600, 1 p.m. Saturdays) and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

Q: We leased a townhome through a property management company. We were never warned, but apparently the homeowners' association had recently settled a major construction-defect lawsuit.

The repairs were extensive and began within our first 30 days in the townhome. The banging and pounding lasted 8 a.m. to 5 p.m. each weekday and even included jackhammering out our entire garage.

The constant noise, dust, and construction debris made the townhome uninhabitable. The property manager denied any prior knowledge and blamed the owner.

We think the owner did not disclose this fact as no one would possibly rent the townhome if he knew of the pending construction. We feel that a rent credit is due us.

A: Griswold: Based on the circumstances you relate, it seems very reasonable that you would receive a rent credit for the time your townhome was uninhabitable due to construction and noise.

Since you have not made any progress with oral communications, I suggest that you send a written demand letter. If this doesn't work, you should either contact an attorney or file a small-claims action.

I believe this is a better response than withholding rent as the breach of your quiet enjoyment clause of your lease is different than the standard "repair and deduct" code sections of California law.

You have endured intolerable conditions and the owner or property manager was not honest with you.

Kellman: The landlord knew, or should have known, that extensive repairs were coming.

All owners were most likely made aware of the situation regarding the lawsuit. They all would have been told about any resolution of the case that would have included such extensive repairs.

You should have been told about the repairs and been given a choice to accept the unit with that understanding or not. You could have even agreed to accept the unit with a rent discount.

I believe you are entitled to a refund for a habitable dwelling paid for, but not delivered. The refund's measure depends on the severity of the inconvenience. Try to resolve the matter informally. Failing that, a $15 filing fee will get you into small-claims court where a judge will settle the matter.

Smith: Not so fast, Steve. Although the tenants are being annoyed by the noise and dust, it's limited to the garage only and during normal business hours.

Tenants frequently rush to judgment in declaring a rental unit uninhabitable. The fact is, most of the services supplied to the townhome were unaffected by the construction. Despite the construction, the tenants had weather protection, plumbing and electric, heat, and other amenities that give value to the premises -- everything is working, including the kitchen and bathrooms.

The property manager has every right to hold the tenants to the lease, but a modest rental credit might be appropriate.

Q: I recently moved into an apartment community. My neighbor informed me she had heard the landlord will automatically deduct $50 for carpet cleaning even though this was not mentioned by the manager and is not stated in my lease.

I know from my legal background that the landlord cannot legally charge for "reasonable wear and tear." Upon consulting two legal references, I see "reasonable wear and tear" is defined as moderate stain and usage, which should not be deducted from my security deposit. I don't believe the cost to clean the carpets after normal use would be my responsibility.

What is your definition of "reasonable wear and tear" as it relates to carpets? Am I obligated to shampoo the carpets when I leave even though I take excellent care of them?

Smith: Legal standards in this area are vague.

We know what landlords cannot do: Knowledgeable landlords know there are no "automatic" deductions, so the $50 automatic carpet deduction from the deposit would be illegal.

Still, a reasonable charge for carpet cleaning could be made. But, that brings us back to the first problem: Is carpet cleaning above ordinary wear and tear? You stated you took excellent care of the carpet.

If this goes to court, it will be the landlord's burden to show it wasn't in good shape -- perhaps from such things as stains, carpet odor, and cigarette burns. Otherwise, the landlord is not entitled to deduct the $50.

Q: We live in an apartment in El Cajon that has been invaded by red ants. The pest-control company has sprayed several times to no avail. The ants come into our unit primarily through the electrical outlets. Is the landlord responsible for solving this problem or should we move?

Griswold: The landlord is responsible for pest control of your unit unless you (the tenant) are creating a condition that is attracting the pests.

Per your lease or rental agreement you must keep your unit in a clean and habitable condition. You should also cooperate with the owner or the pest-control or maintenance staff to eliminate the problem.

At certain times of the year and in certain locations, most pest-control firms indicate red ants are difficult to control without an aggressive plan and everyone's cooperation.

While you want this problem addressed immediately, you still retain control as to when and if access is allowed to your unit.

Smith: Robert points out that the responsibility for pest control ordinarily falls on the landlord and suggests a good way to try to resolve the ant problem. However, I need to remind you of a couple things.

First, your unit is not uninhabitable under California law. In fact, you will note you have all the other services included in your rental -- heat, water, plumbing, other amenities. These services give your apartment value.

If the matter is not resolved, one option for you is to move, but you'll need to give proper notice and pay full rent to the day your tenancy ends. Management has the right to enter the apartment; cooperate with them by allowing access at reasonable times necessary to take care of the problem.

Kellman: In respectful disagreement with Ted, I say the unit may not be deemed habitable with an infestation of red ants.

If you are thinking of moving, the problem must be severe. Having the basic services, as Ted points out, is not much good if you can't live in the place.

While Robert makes a good point that ants may be a serious problem at certain times of the year, it simply remains the responsibility of the landlord to correct the problem.

In severe ant infestations, the landlord must take more serious steps to handle it. Maybe low-budget spraying is not enough. There is a variety of methods available including laying down a barrier at the border of the property to repel the ants and placing traps designed to eradicate them at the source.

If the problem is so bad at that property, the landlord should have figured out by now how to correct it or have warned any tenants of the problem before renting the place to them.

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, The San Diego Union-Tribune, P.O. Box 191, San Diego, CA 92112. Or 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