Fire Cause Must be Established so Tenant Can be Reimbursed

Fire Cause Must be Established so Tenant Can be Reimbursed

Robert S. Griswold | Steven R. Kellman | Ted Smith
05-September-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 moved into our apartment several months ago and never had a
walk-through or other inspection with our landlord. He simply came by our
former residence and dropped off the keys.

Unfortunately, a month later there was a fire in my bedroom. The fire
department declared the cause to be electrical, but the landlord's
insurance company claims it was a candle.

There is a fire alarm directly outside my bedroom door in the hall and it
did not go off the night of the fire. The fire department said it was not
working. I feel if the smoke detector were in proper working condition, I
could have salvaged more of my personal belongings.

What do I need to do to sort this out?

A: Griswold: Yes, the smoke detector should have been tested when you moved in, and its inoperative state is a critical fact in any proceedings based on this case.

You need to worry about reimbursement for the damage to your possessions. But you also may find yourself being sued by the insurance company for property damage based on the allegation that you started the fire. Get a copy of the fire department's report.

Based on the facts you present, I would suggest that you contact an
attorney. Without legal help, I am concerned that the landlord and his
attorneys, plus the insurance company and their attorneys will outmatch
you.

Q: When I moved in the landlord said that I could use the washer and dryer
that is shared with another unit. However, I wasn't notified that the power
for the machines came through my meter.

That was all right -- for a while. Now my neighbors are a family of five
and they use the washer and dryer every day. After a while, I told them I
was paying their bill and they promised to pay me back, but never did.

Now, nobody is using the machines because I cut off the juice.

When I file a small claims action to retrieve my money, should I list the
neighbors as well as the owner?

A: Griswold: California Civil Code Section 1940.9 states that the owner
must provide you with advance disclosure if the owner does not provide
separate gas and electric meters for each rental unit.

This also applies in situations where there are separate meters for each
rental unit, but where the owner has knowledge that the meter serves an
area outside the tenant's specific unit. This is the situation you face.

The landlord should have reached a mutual agreement with you to either
lower your rent and have you still pay for the common-area usage, or to
raise your rent and have the landlord pay for your utility usage, as well
as that for the common area.

The Civil Code section also provides specific remedies for owners who fail to comply with the law. The court may order that the owner be made the customer of record for your meter, plus order the owner to reimburse to you payments you made for utility use outside your rental unit.

At this point, I would suggest contacting the utility company for an
estimate of how much you have been overcharged. Then send the owner a
written demand for that amount.

If not paid promptly and if a mutually satisfactory agreement is not
reached for future charges, then you can sue the landlord in small claims
court. You should only name the owner, as the other tenant is not a legal
party to your tenant-landlord relationship.

Q: My son is a college student who signed a one-year lease to share an
apartment with two other students.

One of the terms of the lease reads: "It is understood that if Tenant
elects to vacate premises on an individual basis and prior to all Tenants
vacating concurrently, all security deposits will be retained until all
parties to the original agreement have been vacated."

When the year ended, there was a verbal agreement to continue renting
month-to-month. My son moved out and has not received his security
deposit. He was told he has to get his money from the student who took his
place.

Should the landlord return his security deposit and get the new student's
deposit?

A: Griswold: Since the original lease most likely rolled over to a
month-to-month agreement, the landlord's statement is valid and binding.

If so, the landlord is correct in refusing to return any portion of the
security deposit directly to your son. The correct way to handle this is
for your son to receive any share of the security due him directly from the
other roommate(s).

I would advise your son to immediately send a written demand letter to his
former roommate with a deadline. If the proper funds are not forthcoming,
then he should go to small claims court.

Remember that your son chose his roommate; the landlord did not.

Kellman: When a lease ends, that tenancy terminates. Your son's tenancy was continued by a verbal agreement on a month-to-month basis only.

The deposit clause in the one-year lease is then somewhat troubling since
it applied within the one-year period and may not apply beyond that. Did
your son specifically agree that the deposit clause applied in this new
verbal tenancy or did he merely agree to rent the unit on a month-to-month
basis?

Without a clear agreement as to the deposit, a court may conclude that your
son has a right to a portion of that money upon vacating.

The original tenancy may conceivably go on for years as tenants replace
each other.

It is difficult for a landlord to manage the deposit when roommates come
and go. The best method is to have clear agreements between the roommates as to how they will handle the deposit between themselves.

Also, the landlord and tenants should agree in writing that the deposit
would be held until the last person has vacated.

This written agreement should be reconfirmed once a lease turns into a
month-to-month tenancy to avoid confusion.

Smith: As the landlord's attorney, I have to disagree with Steve and side
with Robert on this one. The way I see it, the written lease of the
premises has automatically converted to a month-to-month status.

There is no new verbal lease -- the written lease is still operative.

It is a well-settled principle of California landlord/tenant law that the
security deposit "runs" with the apartment.

The roommate should have demanded his prorated deposit back from the new roommate before he let him into the apartment. Now, his only recourse is to take the new roommate to small claims court.

Q: Last fall my wife and I moved into a ground floor of a 12-unit apartment
building. The winter months were relatively quiet. However, once spring
came about the swimming pool was infested with children screaming and
splashing all day and all evening.

Neighbors began having loud parties outside our windows. This has made it almost impossible to relax. Management responded to my complaints by
telling me that "this is a dictatorship and not a democracy" and said
managers would determine when noise was excessive. On top of this insult,
they told me I would face eviction if I spoke with tenants directly about
excessive noise. What can we do?

A: Griswold: Whether you are on a month-to-month rental agreement or a
lease, you clearly have the legal right to enjoy a quiet residence.

Unfortunately, it seems that you are not dealing with a professional
landlord. You have the ability to break a lease or seek a rebate or
reduction in rent based on the landlord's breach of your right to peace and
quiet.

But you cannot force the owner to evict or reprimand the disruptive
tenants. Also, the costs (in time and money) to pursue and enforce your
rights are very likely to be much higher than the benefits derived.

I suggest that you seek other living arrangements. Or, might you find
another unit in your building that is better suited to your needs?

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