Age Probably Isn't a Factor in Ability to Break Lease

Age Probably Isn't a Factor in Ability to Break Lease

Robert S. Griswold | Steven R. Kellman | Ted Smith
26-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: I am six months into a one-year lease and would like to break it for
personal reasons. I've come up with several ideas.

Will any of these work?

At the lease signing, the paperwork was already written and the landlord
stated to me. "I assumed you wanted a one-year lease. Is that OK or should
I make it six months?" To make things convenient, I said it was OK.

At the signing, I chose a PIN number that was to be used for my security
system. This is part of a service provided to all tenants in the complex.

I was told that two weeks after my move-in, the code would be active and
I would have the use of the security system at my apartment. That has not
happened. I notified the landlord, though not in writing, twice as to this
problem, to which the response was, "Sorry, we'll get to it next week."

At the time I signed the lease I was only 17 years old, thus legally a
minor and unable to enter into a binding contract.

I'm prepared to use any of the above excuses to try to break the lease.

I do not want this to adversely affect me in the future, such as a negative
remark entered into my credit file.

A: Kellman: Although there was talk of changing your lease to six months,
that clearly did not happen. If you wanted a six-month lease, you should
have changed the contract with the landlord when it was signed.

The law does not favor claimed oral modifications of a written contract.
Thus, in a dispute, the written contract will be counted over the claimed
verbal agreement. Thus, it appears you have a one-year lease.

As to the security-code issue, you would have to prove that the lack of
this code is material (very important) to the lease. If security was a
critical or deciding factor in your decision to lease the unit, then maybe
it could provide grounds to break the lease.

Regarding your age at the time you signed the lease, a minor can void most
contracts except for items necessary for their support. I think a rented
home will come under this exception.

The best way to break the lease in this market is simply to cooperate in
the effort to find replacement tenants. If the landlord gets the rent from
them, you do not need to pay it. The landlord cannot charge double rent.
Your credit will not be affected unless the matter goes to a collection
agency or a lawsuit is filed.

Smith: It sounds to me like you lied about your age to the landlord. As the
landlord's attorney, I don't have too much sympathy for tenants who gain
possession through false pretenses.

In a court case, I'm going to argue to the judge that you cannot escape
responsibility for this contract by claiming that you were under 18.
Contracts for necessities of life such as shelter can be enforced against
minors. This lease for your housing is a necessity of life, ranking right
up there with food and medical care.

When the landlord told you he had prepared a 12-month lease, you had your chance to back out. You signed anyway. Having signed the lease, you are stuck for the period.

The security PIN issue won't get you very far. It's not a material part of
the lease. It may be an inconvenience but is not an item of habitability.
When the landlord says he'll get to it next week, take what you can get
because he's not required to maintain the security system, despite its
inclusion in the lease. It's just too insignificant an item.

Money well spent?

Q: We lived in a rental house for six years before moving last month into a
home we purchased. While we were renting we made significant improvements.

For example, we installed a new patio cover and deck, a new garage door and electric opener and new landscaping.

Our lease does not address issues concerning improvements to the property
by the tenant. Yet we feel that we enhanced the value of the property and
should be compensated. What are our legal rights?

A: Kellman: The landlord is generally responsible for the cost of repairs
to the rental. This usually includes items that wear out by normal use.
Under certain conditions, the tenant may make repairs and be reimbursed by the landlord for the costs.

This usually happens when the tenant complains about a significant problem and the landlord ignores the complaint. Sometimes a repair may even be considered an improvement. For example, replacing a defective garage door with a better one.

The problem arises when you actually improve the property and the work is clearly not a repair (such as landscaping or a new deck).

Under the law, you may be entitled to be compensated for the costs or the
value of the improvements. The landlord would have had to give express
(written) or implied permission for the improvements and accepted their
benefits. You might have then created a form of contract to pay you for the
benefits given to the landlord.

The law seeks to prevent what's called "unjust enrichment" of the landlord
in such cases. Ask for compensation. If you don't, the law may also say
that you are not expecting any and that may be just enough to tip the
scales against you.

Nowhere to go

Q: We were given a 30-day notice approximately four weeks ago. We haven't been able to find a place and were supposed to be out by this Sunday.

The reason for the notice was because we paid our rent late.

We have been trying to find another rental, yet when potential landlords
call our manager's office to ask questions she does not give a good
reference. However, two days prior to the notice the manager said as long
as we pay on time from now on we could stay. Two days later she handed us the notice and said it came from the property manager. She refuses to give us the name of the property management company or her supervisor.

Also, we have had a death in the family and have had to travel to attend
the services.

So, we can't find a new place. I don't want to go through an eviction. I
have two small children and a husband.

In addition, my dishwasher won't clean my dishes, my kitchen sink is
clogged and my carpets need cleaning. I asked for my sink and dishwasher to be repaired more than six months ago and it still hasn't been done.

Do you have any suggestions?

A: Griswold: With the exception of possibly the sink, your two outstanding
maintenance items are not really issues of habitability,

The dishwasher should work and you may be able to negotiate a rental
discount, but it is not an essential element of habitability and thus not a
good defense to the eviction.

Nonetheless, I would send the landlord a letter indicating the facts and
the unacceptable lack of response. This could be helpful in any future
legal action to show bad faith by the landlord.

Of course, in California either party has the right to give a 30-day notice
without cause at any time. Thus, your options are fairly limited.

Unfortunately, the on-site manager can refute the verbal statement and it
will not hold up in court. Also, they are not required to provide the name
and/or phone number of the property management supervisor as long as the
on-site manager is the agent of legal service for the owner.

As far as the reference, if you have a pattern of paying your rent late,
then the landlord's reference may be accurate. Check with an attorney, but
I do not believe that you would have any recourse against the landlord
unless the landlord is giving out severely erroneous and prejudicial or
slanderous information in a malicious manner.

Usually, it is my experience that certain landlords will actually give good
references (for bad tenants) as they want them to leave the property. In
the current rental market, landlords are not willing to tolerate tenants
who pay late or create any problems.

Your best bet is to seek an agreement to vacate the premises at a mutually
agreeable time as some landlords will empathize with the difficulty and
hardship of moving at this time in light of your loss.

Obviously, they have no legal requirement to honor this request, but offer
to pay the rent in advance and see what they say.

What rent do I charge?

Q: I'm a landlord with San Diego area property who lives in Phoenix. I am
having trouble renting a town house in Paradise Hills. What is the current
rental rate for three-bedroom, two-bath town houses in Paradise Hills? How does one figure out what the rent should be for their rental home?

A: Griswold: No one keeps a database on what a specific floor plan in a
specific area can rent for as every unit and its location is different and
the market has been changing dramatically in the last 18 months.

The only way to determine the rate is to perform a market survey for the
specific unit based on all of the features and locational advantages and
disadvantages vis-a-vis comparable units that are available.

In general terms, rents have gone up in most areas -- although not as
rapidly in areas such as Paradise Hills when compared with coastal areas of San Diego County.

Paradise Hills can be a challenging area -- not so much because the market
is weak but because of the sad fact that many potential applicants are not
financially qualified or do not have a good track record as tenants.

If you hired a professional management company, its first step would be to
perform a specific market survey to determine the maximum rent that can be
charged.

Although I personally believe that it is in the owner's best interest to
set the rent slightly ($10 to $25) below the top of the market and ensure
that you have a responsible and stable long-term tenant.

Minimizing turnover and damage to your rental home should be your first
priority with a reasonable but predictable income stream as a very
important, but clearly second priority.

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