Does This Tenant Owe a Rain Check?

Does This Tenant Owe a Rain Check?

Robert S. Griswold | Steven R. Kellman | Ted Smith
1-August-1999 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (10 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

Q: I recently moved out of an apartment and received my security deposit disposition statement which listed charges for several items. I agreed with the $35 charge for a bleach stain on the carpet, $20 for carpet cleaning, $15 for general cleaning and $18 for touch-up paint. Since we live in San Diego, a place where one minute it is nice and sunny and the next it can cloud over and rain, I do not agree with the $100 deduction for rain-stained drapes.

I kept the windows closed and locked when going out for the day, but left them open when I was home. When it would start raining, I would close the windows but by then some water had damaged the drapes. Am I responsible for this act of God or does the landlord owe me $100?

A: Griswold: Technically, I feel you are responsible, even if the drapes were ruined by rainwater. Weather in San Diego is not so severe that sudden changes would be a valid excuse. It is my recommendation, however, that you contest the charge and seek a reasonable compromise with the owner.

You should not be charged the full cost of replacing the drapes, but only the depreciated value at the time of your move-out. Remember that if you end up in Small Claims court, the landlord might attempt to counter sue for
additional items or for more money if the actual costs were higher than deducted.

I think a call to your landlord is in order, but I don't believe that you have a very strong case for the entire $100 based on the facts you presented.

Kellman: Those drapes sound like they were cheap! If they were so delicate as to melt with a little rain, you should have been warned about them when moving in.

Once notified, you could have taken steps to protect them from water stains, such as spray-treating the draperies with inexpensive products on the market.

In this tenancy, you have clearly used and cared for those drapes in a reasonable fashion. When it started to rain without warning, you acted promptly to shut the windows.

You did nothing wrong and were not given the chance to take appropriate steps to spray treat or otherwise protect these drapes from water. Thus, Ibelieve that you should not be responsible for that $100.

Smith: Shame on you, Steve Kellman! You need to stop insulting Rental Roundtable readers by making up merit less arguments to support the tenant's position.

The fact is that Robert's answer is right. There's no question that the tenant is responsible for the rain-soaked drapes. She admits she left the windows open during periods of rain. Even though she shut the windows at night, she left them wide open during the rain. California law states that the tenant must take reasonable steps to make sure the rental property is not damaged.

The tenant is responsible for the $100 charge and that amount is deductible from the security deposit.

Q: I am having a dispute with our landlord regarding who should pay for a
plumbing repair. After two years as a tenant, my tub became clogged. The plumber found hair blocking the drain. Now, the landlord says we are responsible for the $40 cost of repair. The tub drain did not have a screen to filter bathwater. We supplied one and regularly remove it to pull out any hair that may have slipped past. Accumulations of hair, I believe, is normal "wear and tear" for which the landlord is liable. What is your opinion?

A: Griswold: There is no case law on such a minor item. This would be handled strictly at a small claims level. While an argument can be made that hair in a drain is "normal wear and tear," I believe that you would be responsible after living there for more than two years.

If the drain became clogged immediately after you moved in, then the owner may have to share in the expense. But assuming that the owner had the drains cleared prior to your occupancy, then you must maintain them.

Remember that under California law the landlord cannot enter the unit unless the tenant requests repairs. So, they are not responsible for routine cleaning. Naturally, you as the tenant are charged with an affirmative duty to keep the unit clean. I believe that if there is a lot of hair in the drains, then the routine cleaning of drains by professionals or use of store-brand drain cleaners is the responsibility of the occupant.

Kellman: The normal use of a shower will naturally result in hair going in the drain. I don't want to split hairs, but whether this constitutes normal "wear and tear" is probably a function of the amount of hair we are talking
about. In other words, some hair in the drain seems to be unavoidable.

On the other hand, excessive hair in the drain may be avoided with ordinary care like using a screen, which should be supplied by the landlord.

In your case, there was no drain screen provided which means that the landlord should not complain about hair clogging the drain. To your credit, however, you voluntarily supplied one.

I do not agree with Robert that the tenant has a legal duty to routinely clean the pipes with drain cleaners. That appears to be maintenance of the plumbing, which is not the responsibility of the tenant. The use by the tenant of certain drain cleaners may actually cause personal injury and also cause damage to the plumbing resulting in costly repairs. No tenant wants to risk injuries or be hit with a big repair bill for chemically damaged plumbing. If the tenant is to do any routine drain cleaning, it should be done only with products supplied or specified by the landlord as being safe for both the tenant and the plumbing.

Smith: Steve, you're dead wrong -- again! Let me tell you why.

Any amount of tenant hair that clogs the drain is misuse of the rental property -- not "ordinary wear and tear" to be tolerated by the landlord. Both the lease and California law make the resident responsible for clogged drains caused by their neglect. The landlord appreciates the tenant
installing the trap. It apparently didn't work. The tenant is still on the hook for the drain cleaning charge, which, by the way, is quite reasonable under the circumstances.

In my view, the tenant should pay this amount immediately to avoid further
legal proceedings.

Q: We bought a new single-family detached house in May 1998 and are now renting out the townhouse we had lived in for 3 1/2 years. If we sell the town house, when do we have to pay capital gains taxes, if any? Do we just have a two-year grace period to sell?

A: Griswold: Tax laws have been completely overhauled for primary residences. The two-year rollover provision is gone as well as any requirement to purchase a home at a higher price.

Check with your tax adviser, but in general terms you must have lived in
the home as your primary residence for 24 of the last 60 months to qualify for the tax exemption ($250,000 if you're single, $500,000 if you're married).

In your case, if you lived in the townhouse for over three years before recently converting it to a rental, then it sounds like you would qualify if you sell the townhouse in a timely manner. In general terms, you would need to sell within three years from the date you vacated the town house in
order to meet the requirement that the townhouse was your primary residence for 24 of the last 60 months. Also, remember that any depreciation taken while the town house is rented will need to be recaptured upon sale.

Call in with tight rental market tales

Rental Roundtable contributors Robert Griswold and attorneys Ted Smith and Steven Kellman will take calls from listeners Saturday in a special edition of Griswold's radio program, "Real Estate Today!" It airs on KSDO/AM 1130 for two hours beginning at 10 a.m.

The program will focus on how the tight rental market impacts the lives of
thousands of San Diegans.

The number for listeners to call during the program is (619) 560-1130.

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.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

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