Tenants Take Chance When Leaving Before Lease Ends

Tenants Take Chance When Leaving Before Lease Ends

Robert S. Griswold | Steven R. Kellman | Ted Smith
15-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: We recently purchased a new home and will be moving three weeks before our one-year lease expires at a fourplex in a beach community.

The owner is holding a deposit equal to one month's rent, plus an extra
$500. We have had an ongoing dispute with our downstairs neighbor, and the property manager has not handled the matter very professionally. When
informed that we would be vacating three weeks early, the property manager told us "to kiss our deposit goodbye!"

Should we pay the last month's rent?

The property is in excellent condition, and it is my fear that if I pay the
last month, they will keep the deposit.

A: Griswold: I would not withhold your rent. Pay for the days that you will
be there next month and include a letter with your payment to the property
manager stating that you are expecting that your deposit will be handled in
full compliance with California Civil Code 1950.5.

They must provide you with a detailed accounting of the disposition of your
full security deposit within 21 days of your vacating the unit. While the
property manager must make an effort to mitigate your damages by rerenting your unit, it is possible that you will be charged for the last weeks of your lease.

In order to receive the maximum refund of your security deposit, I would
strongly advise hiring a professional cleaning and carpet cleaning firm,
plus painters or anyone else necessary to get your unit back to (or even
better than) original condition.

Should I Take a Lodger?

Q: I am living on a fixed income and considering renting out a room in my
house. What are the differences between the standard tenant/landlord laws
and the laws concerning room rentals within an owner's primary residence?

A: Smith: There are differences between the standard landlord/tenant laws
and those governing a room rental within an owner's premises.

California lawmakers addressed this issue when Civil Code 1946.5 was
enacted in 1986. Your in-home occupant would be called a lodger -- not a
tenant.

If you have only one lodger in your home, the following rules apply.

The lodger's month-to-month tenancy of the room is still terminated by
written 30-day notice, but that is where the similarity on eviction
procedure ends. Once the notice expires, the lodger may be removed
immediately by law enforcement, without doing the formal eviction process
that would be required in a standard landlord/tenant case.

Also, the landlord may change the lodger's room, and he has equal access to all portions of the house occupied by the lodger.

With these important differences, it is a good idea to seek advice from
legal counsel regarding a specific rental agreement for an in-home lodger.

Kellman: Your potential lodger will still be a tenant, despite what Mr.
Smith says to the contrary. The landlord/tenant code defines tenants as
"tenants, lessees, boarders, (and) lodgers." In fact, this lodger will have
all the rights of a tenant as if renting an apartment. This includes the
right to a habitable dwelling, all the protections for a security deposit
and the right to be free from illegal treatment.

Standard rental forms may be used, except you may want to cover unique
situations in your rental agreement. These may include rules for sharing
common facilities (like the kitchen), quiet-hour issues, pet restrictions
or even the use of the fireplace.

Remember that this is a piece of your home you are renting to someone with you still living in it. Be aware that you must follow the normal procedures of court eviction for nonpayment of rent. In this case, law enforcement will not help you out.

But Mr. Smith does correctly point out that a 30-day written notice may
terminate the month-to-month "tenancy" of a lodger. The lodger rule gives
you, as the owner and occupier of the home, the power to have the lodger
immediately removed by the police for failure to vacate within 30 days
(after notice is given).

However, having this power of a speedy eviction carries certain risks. For
example, your 30-day eviction notice may be retaliatory or otherwise based on illegal discrimination.

If true, such illegal conduct may not prevent the actual eviction, but it
could easily be the basis of a wrongful eviction lawsuit. Obtaining the
advice of counsel before taking advantage of this lodger eviction exception
is well advised.

My Neighbor is a Slob

Q: What are the health code regulations regarding excessive filth and
clutter in apartments?

I just became aware of the deplorable condition of an adjacent apartment.
The rooms are littered and items are stacked so high that there are narrow
paths through the unit. Dirty dishes are weeks old, and rotten food is on
the counters. The trash is overflowing, and canned goods are so old that
some have even exploded.

The unit is clearly infested with bugs and vermin. The tenant is an
alcoholic and seems to be incapable of caring for himself.

There has been so much turnover in ownership and management that I'm not
sure anyone is aware of the problem. I have lived at other properties where
they performed an annual inspection, but they don't do that here.

I really don't want to move and don't want to tell management. What should
I do?

A: Smith: This is a tough situation. The landlord is responsible for
maintaining the premises in a habitable condition. But, defects cannot be
caused by the misuse or neglect of the tenant. If they are, the landlord is
not responsible.

The tenant can be evicted for damaging the premises. Based on the severe
nature of the filth in the offending tenant's unit, I would recommend that
this landlord go ahead and evict the tenant and make all necessary repairs
after his departure.

The change of ownership is problematic. I think you should advise the new
owners of the nature and history of the problem. Tell them you won't take
further steps but you want immediate action. You also could call the
building inspector or health officials. This could require the intervention
of Adult Protective Services, which may assist the tenant with what sounds
like a severe personal problem.

A: Kellman: Of course, an easy way to deal with any rental situation is to
evict the tenant, like dumping the baby out with the bath water.

But if it's that easy, why hasn't this tenant been evicted?

A landlord is prevented from making routine inspections because that would be a violation of the tenants' right of privacy. Entries into a rental unit by a landlord may be made after reasonable notice and for specific purposes such as repairs, improvements or to show the place to new renters.

Here, the apartment condition probably went undetected because there was no need to enter the unit. No complaints for repairs (or regarding his
apartment's condition) may have been made to prompt such a visit. A tenant
who pays the rent with no complaints is a valued renter not to be disturbed
by most landlords. If the landlord has supplied a habitable dwelling and
receives no complaints from or about this tenant, he may not feel the need
to interfere with his lifestyle.

If you believe, however, that this tenant's lifestyle places him or others
in danger for their health and safety, you should notify the landlord or
the appropriate authorities about the situation. Keeping it to yourself
helps nobody. If your observations are true, it would seem clear that this
renter needs some serious help.

Of course there are many better ways to help this person rather than to
evict him from his home. Evicting him could make matters much worse and may cause this renter more serious harm than he currently faces in his
apartment.

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