Is a Refund Due for Enduring Unexpected Construction?

Question: In January we leased a townhome through a property management company. We were never warned, but apparently the homeowners association had recently settled a major construction defect lawsuit. The repairs were extensive and began within our first 30 days in the townhome. The banging and pounding lasted from 8 a.m. to 5 p.m. each weekday and even included jackhammering out our entire garage. The constant noise, dust and construction debris made the townhome uninhabitable.

The property manager denied any prior knowledge and blamed the owner. We think the owner did not disclose this fact as no one would possibly rent the townhome if they knew of the pending construction. We feel that a rent credit is due us. What do you think? How should we pursue our legal rights?

Property manager Robert Griswold replies:

Based on the facts provided, it seems reasonable that you would receive a rent credit for the time during your occupancy in which your townhome was uninhabitable due to construction and/or noise. Since you have not made any progress via verbal communication, you should send a written demand letter. If this doesn’t work, you should either contact an attorney or file a Small Claims Court action. I believe that this is a better response than withholding rent because the breach of your quiet enjoyment or habitability clause of your lease is different than the standard “repair and deduct” code sections of California law.

Clearly, you have endured an intolerable condition, and someone (the owner and/or the property manager) was not honest with you. I would encourage you to pursue this matter.

Attorney Steven R. Kellman replies:

The landlord knew, or should have known, that extensive repairs were coming. All owners were most likely made aware of the situation regarding the lawsuit over their property.

As a matter of course, they all would have been told about any resolution of the case that would have included such extensive repairs. In your case, you should have been told about the repairs before you agreed to accept the unit. You could have even agreed to accept the unit with a rent discount.

I believe you are entitled to a refund of money paid for a habitable dwelling paid for but not delivered. The measure of the refund depends on the severity of the inconvenience. Try to resolve the matter informally. Failing that, a $15 filing fee will buy you entrance to the Small Claims Court, where a judge will settle the matter for you.

Attorney Ted Smith replies:

Not so fast. Let’s remember that although the tenants in this situation are being annoyed by the noise and dust, it’s limited to the garage only and during normal business hours.

Tenants frequently rush to judgment in declaring a rental unit uninhabitable. The fact is, most of the services supplied to the townhome were unaffected by the construction. Despite the construction, the tenants had, since the beginning, weather protection, plumbing and electrical, heat, and all of the other amenities that give value to the premises--everything is working in this townhome, including the kitchen and bathrooms. I believe the property manager has every right to hold the tenants to the lease, but a modest rental credit might be appropriate based on the dust and noise.

In This Case, Smoking Won’t Get You Evicted

Q: I recently rented an apartment through a rental locater service and moved into an upstairs rental unit, which is right above the owner. I am a light smoker. Recently, I notified the owner of a maintenance problem and when she came to fix it she noticed a cigarette butt in the ashtray and was very upset. She said that she had a strict no-smoking policy and if I didn’t comply, I would have to move.

Neither the rental agent nor the owner (who had first shown me the unit) had previously told me about the no-smoking policy, and there is no reference to smoking in the lease. While I have been considerate and voluntarily restrict my cigarettes to two per day next to an open window, I am concerned that I may be evicted. There is no rent control here so can she evict me or must she wait until my 12-month lease expires next spring?

Griswold replies:

The owner cannot evict you during the 12-month lease unless the no-smoking policy is one of the terms of the lease. Since the lease does not contain such a clause, the landlord must wait until the expiration of your lease. Of course, the landlord is not legally obligated to renew your lease. Therefore, while it appears that the law is on your side, you may want to consider speaking with your landlord soon and discuss any alternative financial arrangements that could be offered if you would agree to vacate early.

Since it is unlikely that you will be able to stay in the long run (unless you quit smoking), you may be able to get your landlord to return your full deposit and even provide funds to cover some of the costs of your move. This would be financially better for you and would help you avoid the continued hassle of living where you know you are not welcome.

Kellman replies:

When is a lease provision not a lease provision? When it is a “policy.” Many landlords attempt to force policies onto tenants when there is no mention of that particular rule in the lease. This appears to be an improper afterthought type of restriction on the tenant.

If the landlord wants to prohibit smoking in the units, I believe it must be clearly spelled out in the lease or house rules made a part of the lease. The fact that your landlord has a secret policy regarding not smoking is interesting but I do not think a judge would enforce it as if it were a lease provision. The landlord is not obligated, however, to renew the lease after the 12 months are up.

‘Pet Rent’ Probably Is a Legal Charge

Q: I recently went to rent at an upscale apartment community and was shocked to see the proposed charges for having a cat. I was quoted a rent but told that I must pay an additional $10 per month for “pet rent.”

Furthermore, in addition to the $300 refundable security deposit, I was told that I had to pay a $150 refundable pet deposit and a $100 nonrefundable pet cleaning fee. This seems unfair, as other apartments I toured did not quote these fees. Is this legal?

Kellman replies:

Charging pet rent is probably a legal charge since pets may cause additional wear and tear to a rental. (The charge may not be proper if the pet is medically required for a disability.)

If pet rent is charged, it may be more difficult for a landlord, upon moving out, to deduct pet damages from your security. In that case, it can be argued that the extra wear and tear was covered in the extra rent preventing such a deduction from the deposit.

The extra $150 pet deposit is actually an addition to the security deposit. The law makes no distinction as to deposit titles, and lumps them all as one refundable deposit, which cannot exceed two times a month’s rent in an unfurnished unit (three times in a furnished one).

The $100 nonrefundable pet cleaning fee would add to the general security deposit and would be refundable regardless of what the contract said. Nonrefundable deposits are prohibited.

If you have a question, send it to Rental Roundtable, Real Estate section, L.A. Times, 202 W. 1st St., L.A., CA 90012. Or you may e-mail them at rgriswold.latimes@retodayradio.com. Questions should be brief and cannot be answered individually.