If Tenant Wants Fireplace, He Should Pay Chimney Sweep

If Tenant Wants Fireplace, He Should Pay Chimney Sweep

Robert Griswold | Stephen R. Kellman | Ted Smith
17-Jan-1999 Sunday

This column on issues confronting renters and landlords is written by Certified Property Manager Robert Griswold, host of Real Estate Today! (KOGO Radio, 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: I have lived in a house with a fireplace for nine months. This is our first winter there and we have been using the fireplace quite often. The house is starting to smell smoky and we suspect the chimney needs to be swept. Who is responsible for cleaning a chimney -- the landlord or the tenant?

A: Smith: In my view, the tenant should pay. California landlords are required to maintain rental premises in a habitable state for the duration of a lease.

This warranty of habitability does not require the landlord to ensure the premises are perfect, aesthetically pleasing, or that they smell pleasant.

To me, the smelly chimney is not a violation of the warranty of habitability.

All the landlord has to do is comply with applicable building and housing codes. This includes a heating system, but not necessarily a fireplace.

To be on the safe side, I would encourage the landlord to have the chimney checked to make sure it's not dangerous. That way, he'll keep his liability insurance agent happy.

The tenant should not withhold rent, even if the landlord refuses to call in a chimney sweep. If he does, he could be on the receiving end of an eviction lawsuit.

Kellman: The landlord is not required to provide a fireplace but if one is provided, it must be in proper working order. A malfunctioning fireplace or chimney can be a health or fire hazard.

At the beginning of the tenancy, it should be in a good, properly functional and clean condition.

The question of who cleans the chimney during the tenancy is not too difficult. Unless the lease provides differently, I must agree with Ted that it appears the tenants are responsible to clean the dirt they created in using the fireplace.

Be advised, however, that many times when a chimney is cleaned, the chimney sweep will recommend additional maintenance that most likely is the responsibility of the landlord.

Such recommendations may include servicing the damper, repairing mortar leaks, adding or replacing a spark guard at the top of the chimney or repair of the fireplace doors. These items can cost much more than a simple cleaning but would normally be combined with a cleaning call.

When you call for a cleaning, ask for the work to be limited to that service only and pay just for that cleaning.

If certain maintenance or repairs are needed beyond the cleaning, get a separate written estimate and submit it to your landlord with a request that he promptly have that work done at his expense.

Q: My roommate and I signed an apartment lease. Now he wants to move out and stop paying his share of the rent. If he moves out, or stops paying, can I take him to court?

A: Griswold: I can tell you that you are both joint and severally liable for the full amount of the rent.

In practical terms that means the landlord will look to you (since you are remaining in the rental unit) for the entire rent payment and you will have to seek reimbursement from your former roommate.

One of the most economical and logical ways for you to seek reimbursement would be through the small claims court.

Kellman: The lease is actually a two-part contract. It is a contract between yourself and the landlord to pay the rent for the year. It is also a contract between you and your roommate to share the responsibility of the lease with each other.

It is like a partnership. If he moves out before the lease ends, he still remains responsible to the landlord for the rent as it becomes due. If he does not pay his portion of the rent, you become responsible to pay it in full.

Your roommate does not avoid responsibility by leaving and refusing to pay.

He would then most likely be held liable for breaching the agreement he had with you to share the lease payments.

To protect your credit, you must keep the rent current to prevent an eviction for nonpayment. You could then file a case against your roommate for reimbursement of rent that you were unfairly forced to pay along with other possible damages for his breach of the lease.

Q: I have been a tenant in an office space for more than five years. Within two weeks of moving in, a leak appeared in one of the offices due to a bad roof. Over the past five winters I have had to move trash barrels into the office to catch rain water. Despite this, the water floods the carpets to the point that the landlord herself put my filing cabinets onto bricks. She also supplied me with a vacuum to vacuum up the water.

I finally have had enough, and wrote her a letter that five winters was enough time to wait for repairs. I deducted half of the rent as half of my space was flooded. Four days later I was faxed a 30-day notice to vacate the premises.

I called her about this and she screamed at me that I was on a month-to-month and she could throw me out any time she pleased. I realize that this is a retaliatory eviction, and against the law. Can I just write her a letter stating that I do not accept her retaliatory eviction?

A: Smith: You may find some comfort when you contact an attorney, but here are a few facts of life.

First, your tenancy has always been -- and is now -- only month-to-month.

Even though you've been there a long time, you can still be given the boot with a written 30-day notice.

The retaliatory eviction defense? More bad news -- it applies to residential rentals only. California's commercial tenants are not afforded the same consumer protections as their residential counterparts.

You may have a claim for damages against the landlord for loss of goods and interruption of your business, but I'm afraid you will have to vacate per the 30-day notice.

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 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold@retodayradio.com

Back to 1999 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