Notified Twice of Hazard, Owner Has Duty to Make Repair
Question: I have lived in an apartment with two roommates for the last two years. The owner is very slow to make repairs to the apartments and the common areas. Although we have reluctantly accepted the slow response, we are very concerned now that there is a serious health and safety problem.
The concrete decking in the courtyard area by the pool and the entrance to our unit has settled. Water from rain and the swimming pool collects there, and we must walk through it to get to our unit. We notified the owner in writing twice and got a response to the first letter indicating only that the owner is aware of the problem and will get to it.
Recently, a guest of mine slipped and fell on her back, as the wet concrete is very slippery. Although she wasn’t seriously injured, I want the owner to take care of this problem immediately.
Isn’t the owner obligated to correct this hazard? What is our next step? Also, are we facing any liability to our guests because we know about the problem and the accident that already happened at the entrance to our unit?
Property manager Robert Griswold replies:
Yes, the owner is obligated to correct any known hazards such as the collecting of water on the concrete deck in front of your unit.
Based on your two letters and the response to the first one, the owner has received legal notice of the problem. In the case of an injury, your communications will clearly document that the owner had advance knowledge and thus an injury was foreseeable.
However, because your guest actually fell, I would send another letter advising of the continued danger and the recent fall. Be sure to include a photograph of the area when the water is present in one last attempt to alert the owner to this serious problem.
Although making the repair is a duty the landlord may not delegate, you could choose to make the repairs yourself. Be sure to place a warning sign, cones or other adequate warning or barrier until the repair is complete.
Assuming you do not want to make the repair, your next step should be to contact your local code enforcement or health department. The agency will visit the property, make a report and require the owner to correct the hazard and any other code violations noted.
Yes, you are liable if any subsequent injury occurs, unless you provide an adequate warning or barrier. If you have provided an adequate warning or barrier (for your guests and the public), then you have a defense, and the liability will most likely fall entirely on the owner. If you do not provide the adequate warning, then you and the owner will have liability.
Tenants Pay Only for Extraordinary Damage
Q: I live at an apartment community where the owner requires all tenants to pay $45 to have a professional company steam-clean the carpets before moving. If the tenant does not do this voluntarily, the landlord deducts the $45 from the security deposit.
I am under the impression that California law does not require the tenant to clean the carpets, clean the window coverings, wash the ceiling or paint the walls unless it is required in the lease or if there has been damage beyond ordinary wear and tear. Can my landlord require the professional steam-cleaning of the carpets?
Attorney Steven R. Kellman replies:
When is dirt considered ordinary wear and tear? When you can’t clean it. I believe it is that simple. Therefore, if the carpet, window coverings, walls, etc., can be cleaned, you should clean them. The law seems to say that you must take the dirt that you brought in with you when you leave.
Disputes commonly arise when the tenant moves out of a rental with dirty-looking surfaces or stains that are cleanable and which result in repair and/or painting at significant costs.
Sometimes dirt that wears into carpets or walls by normal use, over time, cannot be cleaned by normal means. In that case, the tenant should not be responsible for the costs of extraordinary cleaning or repairs.
As to the $45 charge, the landlord cannot force you to hire a professional to clean the carpets, nor can he or she automatically deduct $45 from your deposit. If the carpets can be cleaned, you can do the job yourself for less than the $45, although with the equipment rental costs, time and effort involved, I would opt for the $45 job.
Out-of-State Landlord Can Still Be Sued
Q: My husband and I rented a home for 12 months in Pasadena. We moved out about one year ago and have never received an accounting or refund of our $450 security deposit. The owners live in Nebraska and do not respond to our letters. Can we take them to Small Claims Court here in Pasadena? If so, do we sue them for $450 or can we seek a higher amount, since we believe they violated the law by not providing an accounting or the return of our deposit within 21 days?
Griswold replies:
Yes, you can file a claim in the local Small Claims Court in Pasadena even though your landlord lives in Nebraska. Because your rental agreement was for a rental home in Pasadena, the local court is the proper jurisdiction.
Your main problem will be serving your landlord with the court documents. One way to serve the papers is to have the Small Claims Court office serve the complaint via certified mail with a signed return receipt sent back to the court to prove the documents were served. Of course, the landlord may not be willing to sign for the delivery of a certified letter from you.
Another method of service to consider is to locate and hire a licensed process server in the area where your landlord lives in Nebraska. You can then mail the original documents to them so that he or she can personally serve the papers and send you notice of service for filing with the court.
Kellman replies:
The law requires an accounting and refund of your security deposit, if there is one due you, within 21 days from moving out of the home. The bad-faith refusal to comply with the deposit law carries a $600 maximum penalty paid by the landlord to the tenant in addition to the deposit. A landlord who lives in another state is still obligated to comply with this law.
A case may be brought in Small Claims Court against an owner of rental property living out of state. In your case, you have an excellent chance of being awarded the $600 penalty for the landlord’s refusal to comply with the law or respond to your letters.
Although a year has passed, you should still have time to file your case in Small Claims Court. The law allows you to file a breach of contract action within two years of the breach of an oral contract and within four years of the breach of a written contract.
Early Departure Doesn’t Void Lease Liability
Q: We signed a 12-month lease about five months ago. We want to buy a house and leave early. Our lease is silent about early termination, but the property manager has failed to fulfill a certain requirement stated in one of the addenda to our lease by the required date. We can give a three-month notice so the property manager can find another tenant. Is my security deposit in jeopardy?
Griswold replies:
Yes, you could be responsible for up to the balance of the lease unless the failure of the property manager is a significant violation of the lease.
From your question, we do not know the nature of the failure to fulfill the lease addendum requirement and/or the significance of the required date. However, if the property manager and/or owner failed to correct a health-and-safety deficiency or a violation of the habitability code, this would potentially qualify as a violation allowing you to terminate a lease as long as you had given adequate notice and allowed the property manager or owner a reasonable time for the repair to be made.
It could be that the failure to comply with the exact letter of the lease addendum is a technicality that you want to capitalize on to pursue your desire to purchase a home. If this is the case, I would suggest direct communication with the property manager to make arrangements that will result in your being able to leave early with the minimum financial liability. You are financially responsible only until a new tenant begins paying rent, so it is to your advantage to cooperate with the manager.
This column is written by property manager Robert Griswold, host of “Real Estate Today!” (KSDO-AM [1130], 10 a.m. to noon Saturdays), and attorneys Steven R. Kellman, director of the Tenants’ Legal Center, and Ted Smith, principal in a law firm representing landlords.
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If you have a question, send it to Rental Roundtable, Real Estate section, L.A. Times, Times Mirror Square, Los Angeles, CA 90053. Or you may send e-mail to rgriswold.latimes@retodayradio.com. Questions cannot be answered individually.