Tenant Finds Way to Break a Lease for Problem House

Robert Griswold | Steven R. Kellman | Ted Smith
31-May-1998 Sunday

This column on issues confronting renters and landlords is written by Certified Property Manager Robert Griswold, host of KOGO Radio's "Real Estate Today!" (AM 600, Saturdays, 1-2 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: I have been having many problems with the house I am renting. We suffer from inadequate heating, leaking pipes and poor insulation. These problems were so severe that my landlord actually sold the house a few months ago.

Now, I have a new landlord whom I've asked to allow me to break my lease. They finally agreed. What should I do as the tenant to legally break this lease without having problems in the future? I was told by a friend to write a letter to the landlord and have them sign it. But what should I say in the letter?

A: Kellman: The documentation to "break" the lease, as you put it, can be fairly simple. You need merely put in writing that you and the landlord mutually agree that the lease termination date is changed from the stated date in the lease to the agreed-upon new date.

It gets a little more tricky if you cancel or rescind the lease since you may be giving up valuable rights given to you by that lease. On the other hand, you may have incurred liabilities under the lease that could be removed by such cancellation or rescission.

Be careful about rent incentives that only apply when you stay for a minimum number of months. Terminating the tenancy early could forfeit such benefits.

If you are unsure about drafting the document, consult with an attorney experienced in such matters.

Q: I am the owner of a rental property in La Mesa. In September 1996, I leased the house to a married couple. They paid a $700 security deposit. Sometime toward the end of their one-year lease period they divorced. The ex-wife moved out and the husband continues to live in the house. I did not receive any kind of notification from either of them that there was a change in their status.

In October, when the lease ran out it reverted to a month-to-month rental as stated in the lease. Yesterday, I received a letter from the ex-wife demanding one-half of the security deposit be sent to her within seven days. Shouldn't her ex pay her the $350 and leave me out of it?

Also, doesn't she have to give me 30-days notice? And if so, do I then have two weeks in which to return her half of the deposit?

A: Smith: Thanks for a good question.

You're in pretty good shape here, but you need to be careful.

Rule 1: The security deposit follows the rental. They gave it to you as a package going into possession; you don't have to split it up later. Unless there's an agreement to give the wife half, she's not entitled to it right now. The husband has continued in possession.

You're right -- she should make her claim for half of the deposit from her husband. Let the divorce court decide that issue.

Further, she has never legally terminated her tenancy in the premises, even though she hasn't been living there. You could declare her still on the hook for the rent since you have received no written notice from her.

Current law states that you have 21 days from the husband's departure to return the deposit. When returning the deposit in this case, it should be made payable to both husband and wife, making the usual deductions for damages and cleaning.

Q: We are several months into our one-year lease of a rental home. The other day I received a written notice taped to my front door. It was a price listing for basic repairs to our unit. For example, a clogged sink was $25 and a broken door lock was $50. The only charges listed in our lease are for late rent or a returned check. I can't believe this. Is this legal?

A: Kellman: The landlord may only charge the tenant the actual costs of repair of damages caused by the tenant beyond normal wear and tear. If the door lock breaks or the sink clogs by no fault of the tenant, the landlord pays for the full repair.

Even if it is the tenants' fault, they pay only the true charge for the repair.

The schedule of charges may actually offer some protection for the tenant if the tenant causes damage that costs more than the schedule. For example, does this schedule mean your landlord would pay any extra costs for you?

Conversely, if the clog was deemed your responsibility and the repair costs less than $25, will the savings be passed on to you?

This seems like an unworkable system that may provide more benefit to the tenant and some trouble for the landlord.

Ultimately, I feel such a notice is highly suspect and is subject to legal attack as to its validity.

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