Q: We live in an apartment complex in the San Diego area, for which we pay $2,400 per month. During the fires of October 2007, the authorities ordered all of us to evacuate on Sunday the 29th, and we spent five days at a shelter. Fortunately, the building wasn’t damaged. We think we’re owed a retrospective rent rebate from our landlord to compensate us for the time we couldn’t live in the apartment, but she disagrees, saying that the wildfires were hardly her fault. Still, the 20 of us who live here paid for apartments that we couldn’t use. Who’s right? –Bill L.
A: Your question would warm the hearts of law professors and law students everywhere. At the risk of arousing their ire, here’s my take: Let’s suppose that the wildfires had destroyed the building instead. According to the laws of many states, in that situation the tenants would not be entitled to a rebate of rent already paid, but the lease would terminate. In your case, I assume you had paid the rent for October, and spent the last two days of that month in the shelter. It would seem logical to apply the rule described above, even though the cause of your inability to use the apartments was a civil order, not destruction by fire (the common element is that you couldn’t use the apartments and the landlord was blameless).
But what about the three days in November that you also couldn’t get back in? Here, you may have a stronger case, since the landlord was expecting full rent on Nov. 1 for apartments she knew she couldn’t deliver. In this situation, even though she’s not responsible for the problem, she cannot expect full rent, and should have charged her tenants for 27 days instead of 30.
Whether you’re going to prevail in court is another matter — a judge may look at this differently. And, it may not make sense for one person to sue over such a relatively small sum (you’d be asking for $240). But the picture changes if you and your fellow residents sue in small claims court, each asking for their respective amounts and requesting that the cases be consolidated before one judge. If you decide to sue, be sure to approach your landlord first and try to resolve the matter informally.
Q: Last weekend, my roommates threw a party that got out of hand. The neighbors complained and the landlord went nuts, throwing us all out. I wasn’t even home that weekend, and I feel it’s unfair to blame me. I want to stay, but the landlord refuses to talk about it. What can I say to change his mind? –Hank L.
A: You may not have been there to enjoy the party, but unfortunately you’re going to suffer the post-party. Your landlord is taking advantage of the old legal principle of “joint and several liability.” It simply means that the mistakes of one roommate will indeed justify a reaction against all of you. It also means that the landlord can legally require any one of you to pay the entire rent (how you divide it up among yourselves is up to you). Chances are your lease has a clause that recites this legal rule, but even if that’s missing, the rule is available should the landlord want to apply it.
Now then, was your roommates’ “out of hand” party so bad as to justify terminating your lease? That depends on the circumstances. If it was an isolated event, in a building not otherwise known for sedate living, if other parties never provoked the same response, and if the revelers put a lid on things after being told to quiet down, perhaps not. On the other hand, if you (or any of your roommates) have thrown several such parties, receiving numerous complaints and warnings, your landlord may be on solid ground. In that case, the landlord will probably rely on a clause in your lease in which you agree not to cause disturbances or interfere with the “quiet enjoyment” of other tenants or nearby residents. Even if you don’t have such a clause in your lease, many states impose the same requirement on you by law.
If there’s no legal ammunition available to you, don’t give up. Ask for a meeting and go into it with equal parts contrition, humility and a plan for better behavior. Consider talking to the neighbors first, and after you apologize, ask them if they’ll support you in your plea for a second chance. Good luck!
Q: I’m about to move out of my flat, which I’ve occupied for four years. My landlord has just announced that he’s keeping my entire security deposit, claiming that the carpet will have to be replaced. It wasn’t new when I moved in, and I haven’t left any particular tears or stains. I don’t think it’s right for him to refurbish the flat using my deposit; isn’t replacing the carpet part of his overhead? –Jennifer G.
A: Your landlord may legally use your deposit to pay for replacements only when your use of an item went beyond normal use. If a new carpet has a useful life of five years and you happen to be the tenant who moves out at the end of those five years, the landlord shouldn’t use your deposit to replace the rug.
Although replacing carpet that’s run its course is a cost of doing business, many landlords can’t resist using that big pile of money (your deposit) to cover their overhead. If the landlord follows through with his plan, you’ll have to take him to small claims court to get your deposit back. You’ll need to convince the judge that the rug was a certain age when you moved in, that your use was normal, and that the rug’s expected end of life coincided with your departure. On the latter point, try to get some information on the useful life of a carpet like the one in your apartment. If you can determine who made the rug, you might get some valuable information on the manufacturer’s Web site. Take pictures before you leave so you can show the judge that the carpet was old and tired, but you didn’t hasten its demise.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at janet@sandbox.inman.com.
