At-home Childbirth Raises Rental Issues of Noise and Privacy

At-home Childbirth Raises Rental Issues of Noise and Privacy

Robert S. Griswold | Steven R. Kellman | Ted Smith
17-October-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 have just found out, second-hand, that the couple who lives in the
apartment directly below me is planning on having natural childbirth in
their apartment.

They have not spoken to me about it, but have mentioned it to a couple of
the other neighbors. Many of the people in our apartment complex are
concerned about this situation.

Noise carries very easily here. We feel that this could be a potentially
intrusive event. Many of us in the building are not particularly friendly
with this couple.

While this may be a blessed event for them and their friends and family, it
is something that the rest of us do not care to share in by being forced to
listen to a woman in labor.

It seems to us to be a very intimate time and we simply do not care to be
drawn into these intimate moments with virtual strangers. I'm sure we sound
like insensitive louts to some people. But since we have no personal
connection to this couple, we do not feel we should be subjected to the
potentially distressing noises associated with the natural home-birthing
process.

What are the legal rights of both the couple and the rest of the tenants?
Are there any restrictions on at-home childbirth in multiunit rental
complexes? Does the couple have any obligation to give us official
notification of their plans? If tenants are not able to sleep or conduct
their normal lives in their homes due to the noise, are we eligible to have
our rent pro-rated for loss of use time?

A: Griswold: You have a very unusual situation. From a legal standpoint,
noise is noise regardless of the cause or source and your landlord must
attempt to maintain the "quiet enjoyment" of their premises for all
tenants.

However, the landlord cannot act upon anticipated noise, only actual noise
when (and if) it occurs. In other words, the landlord cannot prevent this
couple from planning an at-home childbirth based on perceptions that others
will be disturbed. One can reasonably assume that there may be some noise,
but other than a reminder about the rules against disturbing neighbors,
there is nothing the landlord can do in advance.

Of course, the at-home childbirth may be very quiet. However, I do think
you should notify your landlord of the situation. The landlord should then
bring the concerns to the expectant couple's attention.

This couple should take reasonable efforts to minimize any impact on other
tenants.

From a tenant/landlord point of view, there are no limitations on at-home
childbirth other than the noise and there is no requirement that you must
be notified. I also believe it would be unreasonable to expect the landlord
to reduce your rent as a result of any disturbance.

If your landlord is unwilling to address your concerns, then my advice to
you is to ask a neighbor who is on good terms with the expectant couple to
meet with them. That neighbor could explain the concerns in a
straight-forward yet diplomatic approach.

Kellman: Childbirth or no, noise is noise. Things should be done in their
proper time and place. Having babies is OK, but using the apartment as a
hospital may not be OK. Here, such activity may be to the benefit of the
new mom, but to the detriment of many neighbors who may not wish to hear
the noise. Before home birthing, I would advise getting some preliminary
approval from the affected neighbors to avoid problems.

Smith: As a landlord's attorney, let me make two suggestions to the
complaining resident. First, just relax. After all, you're not the one in
labor. Secondly, consider renting a detached, single-family home.

You see, life goes on, and in multifamily housing, there are going to be
certain sounds and the presence of others in close proximity that you would
not have in a detached home.

In my opinion, having to endure the sounds of the natural birthing process
by your adjacent apartment neighbor will not give you any legal rights
whatsoever. First, it does not constitute a breach of the covenant of the
quiet enjoyment to excuse you from your lease. Second, by complaining
unnecessarily, you could get yourself into legal trouble with your
apartment management for frivolous complaints. As long as this is not an
ongoing occurrence -- and it can't happen any more than once every nine
months -- you are out of luck.

Who's responsible?

Q: I leased a house during the last school year with a roommate. My
roommate recently bailed on me and I cannot afford the monthly rent. We
have four months remaining on the lease and the landlord says that I am
responsible for all of the rent. What can I do?

A: Smith: Let me first confirm that both of you are responsible for the
lease. The landlord can hold one or both of you fully responsible for all
of the rent required by the lease.

As far as the landlord is concerned, it doesn't matter that your roommate
moved out -- he's still legally liable. You may have a case against your
departing roommate who walked out on his agreement with you to share rent.
You might want to ask the landlord if he's willing to accept a new
roommate, if he qualifies.

Remember, though, no one can move in without the landlord's prior written
consent. With or without a roommate, you must keep paying the rent if you
live there. Otherwise, you'll get the boot with an eviction, which could
show up on your credit report.

A right to privacy

Q: I am living at a long-term weekly rental establishment. I have serious
concerns that management is entering my room and stealing my personal
belongings.

I moved here because I was told that there was 24-hour security. The
security is obviously not protecting my property. Can I sue the owner and
manager for fraud?

A: Kellman: As a tenant (renting a room for more than 30 days), you are
protected from violations of your right to privacy, which includes unlawful
entry into your room. Management may not enter a tenant's room unless such
an entry is allowed by law. This would include entry for a legitimate
purpose such as maintenance, repairs or showing the room to a possible
renter.

You would be entitled to at least 24 hours notice of the entry, which you
may temporarily refuse. Of course, stealing is never a legitimate reason to
come inside your room. If you believe you are the victim of such acts, you
should consider calling the police.

You may also file a civil case against the owner. Because you were led to
believe the room would be secure, you could have a claim for damages
resulting from the lack of security. Although it may be a fraud, it might
more likely be called a breach of contract or negligence.

Of course, you need proof that someone wrongfully took the property and
that it probably would not have happened if you had the promised security.
Merely suspecting the manager is not enough and a court cannot judge
against someone based only on your "serious concerns" without that proof.

In fact, filing a lawsuit without proper evidence may result in you paying
damages to the management if you lose the case. Therefore, take reasonable
steps to protect your property. You may certainly consider taking legal
action once you have some proof of any specific wrongdoing.

Smith: I would agree that management may not enter your room randomly --
nobody is going to be allowed to steal your personal property. Let me warn
you, though, that you'd better be able to prove your case against the
manager.

You will need to have an eyewitness who catches the apartment manager in
the act. Kellman is wrong when he suggests that you have a lawsuit for lack
of security in the building. You may try to build a case against the
landlord, but your rental arrangement comes with no explicit guarantees
regarding security or safety.

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