This column on issues confronting renters and landlords is written by certified property manager Robert Griswold, author of “Property Management for Dummies,” and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and James McKinley, member of Moffitt & Associates law firm, which represents landlords.
QUESTION: My renter wants to terminate our one-year agreement after one month. She is unwilling to get long-distance telephone service from the house phone and cannot use her cell phone at the property. She gave us first and last month's rent. She now demands the return of the second month check, which was posted three days before she decided to move.
We intend to reimburse her for any unused portion of the paid rent, minus expenses incurred on her behalf. Three days have passed, we have identified two potential renters, and now she won't let us show the property until we reimburse her the second month's rent.
ANSWER: Landlord's attorney McKinley: Under California Law, a residential landlord must provide at least one usable telephone jack, and all necessary inside wiring. Her refusal to pay for long-distance phone service, and her inability to use her cell phone at the property are not valid reasons to break the lease. You are under no obligation to return any rent to her.
When a tenant breaks a lease before the term expires, the tenant is responsible for all unpaid rent up to and including the date the lease expires, or a new paying tenant is found. when a tenant breaches the lease, the landlord has a duty to mitigate their damages by actively attempting to find a new tenant.
Your tenant has frustrated your attempts to mitigate damages by retaining possession of the premises, and refusing to allow you to show the property. If she fails to pay the next rental installment when due, serve a three-day notice to pay rent or quit, and commence eviction proceedings if she fails to pay. You will obtain a money judgment, as well as possession of the property.
Tenant's attorney Kellman: When the law requiring one working telephone jack was enacted, the idea of cell phone reception was simply not an issue. Now, many of us rely on cell phone communication and expect good service and signal coverage.
While this all seems to make sense, it is not part of a usual lease situation to ensure good cell phone reception or account for when there is bad coverage. Unless that condition was made a part of the lease, then failing to have such cell phone coverage is not a violation of the contract nor is it evidence of any wrongdoing of the landlord.
Who pays?
A tenant discarded mattresses and box springs and broken stereo shelving, and the garbage collection company informed me that “if it's not in the bin” I have to arrange for special pickup and pay for it. I asked the tenant if they could pay for the extra charges and they replied, “not my problem, you provide the garbage pickup.”
Landlord's attorney McKinley: Although your agreement states that you are responsible for garbage pickup, you are probably not responsible for large items.
It's quite likely that your lease has a provision requiring to keep the premises in good repair and clean condition, and to reimburse the landlord for any damage. In your case, the tenants leaving large items that do not fit in the garbage bin should be considered littering in the common areas, and the tenants should be responsible for any additional charges.
Tenant's attorney Kellman: Items like mattresses and box springs are not considered trash in the conventional sense. The San Diego Sycamore Landfill charges a separate fee for dumping mattresses. The State of California Integrated Waste Management Board also has special rules about recycling large items like mattresses and frames.
It appears that the landlord's responsibility would be limited to the normal refuse generated by day-to-day living meant for the trash bin provided for the tenants.
In this case, I think the tenants are taking advantage of the trash service and trying to make it a free hauling, recycling and dumping service as well. This appears to be an inappropriate position to take unless the lease specifically provides for such rights, which I doubt it does. To maintain an effective and harmonious landlord tenant relationship, both parties need to respect and not take any unfair or unlawful advantage of each other. In this case, the tenant should pay the extra charges, which would probably be much less than the hauling and landfill costs.
Water shutoff
Our condo has a waterfall fountain/pond on the property that has been there since the complex was built in the early '70s. It has been well-maintained by ourselves and the owner before us . . . we considered it part of our property as the association has never taken care of it.
The association board of directors said they are turning off the water to the fountain because the cost is being borne by the association and, also, we need to clean out the water to prevent a problem with standing water and West Nile virus. This will devalue our property as the fountain/waterfall/pond is a very attractive asset to the property. Do we have any recourse?
Property manager Griswold: You may not have any recourse but you should do some homework and find out. If the location of the waterfall fountain/pond is on the association property then they have the right and authority to make that change. So check your governing documents and the condominium plan to make sure who is responsible for this particular element of the property. You could also formally offer a written agreement under which you would underwrite the ongoing costs of proper maintenance but the board of directors may not be interested in such an arrangement as it creates a gray area if there are ever any problems.
Another legitimate concern would be that such a practice might establish a precedent that the board does not want to support throughout the project. In other words, you may be a responsible homeowner and fulfill your commitment but the board would have to treat others making similar proposals in the same manner but would not be as diligent as you are in properly maintaining components of the association with negative repercussions for the association.
You should also consider putting your concerns in writing in a positive manner. I would suggest that you point out the loss of this feature to the community rather than strictly recite concerns about your own personal interests. My experience is that most boards are likely to be swayed by a community perspective than simply your own loss of value which is not the direct concern of the board.
If you are a tenant or a landlord, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Send brief and concise questions to: Rental Roundtable, Home Section, The San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold@retodayradio.com.
