Termite-related Problems Rate Reimbursement

Robert S. Griswold | Steven R. Kellman | Ted Smith
14-November-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 own a four-plex in Anaheim and one of my tenants alerted me to the
presence of termites in the building. After an inspection, it has been
determined that fumigabtion of the entire building is required. The tenants
will be displaced for two days and one night. Am I required to compensate
the tenants for displacement, and if so, how much?

A: Griswold: There are no legal requirements to compensate tenants
displaced by fumigation. And while many owners do not offer compensation,
my advice is always to be fair and reasonable with your tenants.

I would strongly recommend offering the tenants a nominal sum that will
offset their out-of-pocket expenses. For example, they might have to stay
in a motel, they will likely have increased meal expenses since they will
be eating out, they also will have to prepare their unit for the fumigation
by following the guidelines provided by the fumigation company, including
removing pets and certain food products.

This is a major inconvenience and aggravation for the tenants and one that
I personally believe is worthy of compensation.

Q: I recently had to move due to a large rent increase. I found a great
place, as far as location and price; however, the owner has not repaired
any of the noted items as agreed during my move-in inspection. These are
all health and safety and may cost over $100 to repair properly with
licensed contractors.

The problems include stair treads at an angle, broken glass in the medicine
cabinet; electrical wires exposed, and poorly placed steppingstones. The
owner now tells me that since I am getting a below-market rental rate, I am
responsible for making the repairs myself.

I cannot afford to make the repairs, but I definitely cannot afford to move
either. Doesn't the owner have to make these repairs even though I have
nothing in writing?

A: Kellman: The law is clear that you are entitled to a habitable dwelling.
This means that the dwelling must be substantially free from defects that
impact your health and safety. You have the right to have such items
promptly repaired at the landlord's expense, not yours.

Some landlords feel that when the rent is low, the tenant should accept the
unit "as is" without complaint and be responsible to make routine repairs.
This is not the law since those repairs are the responsibility of the
landlord.

Many tenants, however, go along with this to preserve their lower rent
believing they have a good deal accepting the place "as is." The "as is"
game is a real loser for the tenant who can easily spend the rent savings
on repairs over the course of the tenancy.

Besides repair bills, there are additional costs caused by living in an
unsafe unit. Lost wages or medical bills due to illness or injury caused at
the property, additional blankets or heaters needed in the winter or eating
out because the kitchen is not useable are only a few examples.

Let's not forget the price paid for the sheer discomfort and fear that an
injury can occur at any moment from an unsafe condition. Add up the risks
and all the costs and compare it with the supposed savings for that "below
market" rent. You will find that your true monthly expenses could turn out
to be a whole lot more than you would imagine.

Send the landlord a polite written request listing all the needed items of
repair. If he refuses to make the repairs, you have several legal options
you can pursue which include repairing and deducting the cost from the
rent, withholding rent or filing a case in the small claims court. Get
legal advice before taking any such legal action.

Smith: Most landlords understand their obligation to make the premises
habitable. But, tenants frequently take liberty with the term
"habitability," likening it to the perfect apartment. The law requires
landlords to provide minimum living conditions only.

I suggest that your best course is to politely ask the landlord to take
care of the serious problems before you take any further legal action. As
far as market rent is concerned -- I must remind you that your landlord has
every legal right to raise the rent. You have the right to vacate the
premises if you believe that the terms of your rental arrangement are too
difficult.

One final word of advice: Don't exercise the "repair and deduct" law unless
you have given your landlord notice and opportunity to take care of the
problem and you are sure that the judge will agree with you that each item
is serious and not just cosmetic.

Q: I recently had a tenant move out and the tenant left cigarette burn
marks in an otherwise good bathroom vinyl floor. The tenant claims that
because I didn't tell her not to smoke in the apartment that this should be
part of "normal wear and tear."

I charged her the full amount to have a repair completed on the burned
area. Was I correct?

A: Griswold: Yes, I believe that you were correct. Recovering the
reasonable costs to repair damage caused by smoking is not exempt under the
ordinary wear and tear provisions of California civil code.

Under this logic, serious damage to the kitchen counter caused by slicing
and dicing vegetables would not be recoverable unless you had rules against
such activity.

If this tenant's logic were applied, just imagine the list of rules you
would need. The relevant section of the Civil Code 1950.5 states that the
tenant's security deposit can be used to pay for the repair of damages to
the premises, exclusive of ordinary wear and tear, caused by the tenant or
by a guest or licensee of the tenant.

The code also states that "the landlord may not assert a claim against the
tenant or the security for damages to the premises or any defective
conditions that pre-existed the tenancy, for ordinary wear and tear or the
effects thereof, whether the wear and tear pre-existed the tenancy or
occurred during the tenancy, or for the cumulative effects of ordinary wear
and tear occurring during any one or more tenancies."

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