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"Abandonment" Remedy http://www.dca.ca.gov/publications/landlordbook/repairs.shtml Repairs, Maintenance

Discussion in 'Living in, Use of the Premises' started by nc555, Oct 12, 2010.

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  1. nc555

    nc555 Law Topic Starter New Member

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    California Civil Code 1942 states that if a landlord doesn't make necessary repairs to keep the rented property habitable then the tenant can either "repair and deduct" or use the "abandonment" remedy.

    In my case I have apparently several electrical circuits that are having under-voltage and over-voltage issues. When checked with a multimeter they have read as low as 40 VAC and as high as 210 VAC. Sometimes they have read a normal voltage of 120 VAC. These circuits have "smoked" 3 musical amplifiers and an internet router. At first I thought the issue was with the equipment, but after different equipment was damaged in different outlets, I started some basic troubleshooting and realized that the issue is common throughout half the house. The lights in the bathrooms flicker from time to time, sometimes for hours and then sometimes act normal for hours. Sometimes the voltage is so low that the lights will not illuminate. I am concerned that the over-voltages may actually cause a fire so I double checked my fire alarms to ensure they were operating properly.

    There are other habitability issues with the house that fall under the nuisance catergory, such as a front door that will not stay closed unless I use a dead-bolt. In other words it will blow open with the wind unless it is locked.

    Also the flooring transitions are improperly installed and/or missing. This has caused my kids to step on floor tacks and hurt their feet with small pricks and snag their socks and stub their toes.

    Lastly, it is assumed there has been a squirrel infestation in the attic and garage (according to the pest control guys based off the feces found in the garage). There is a dead animal smell in the living room coat closet. The property manager sent over pest control guy who masked the smell, but they are not allowed by their company policy to go into the attic to actually do anything about the presumed critters. Maybe these are the cause of the electrical problem?

    While I understand that I have the option to "repair and deduct" if I meet the requirements, I can also move out under the "abandonment" remedy if the problem meets the qualifications below and I am entitled to prorated last months rent and full deposit refund.

    1. The defects must be serious and directly related to the tenant's health and safety.
    2. The tenant or the tenant's family, guests, or pets must not have caused the defects that require repair.
    3. The tenant must inform the landlord, either orally or in writing, of the repairs that are needed.
    4. The tenant must give the landlord a reasonable period of time to make the needed repairs.


    "The law usually considers 30 days to be reasonable, but a shorter period may be considered reasonable, depending on the circumstances. For example, if tree roots block the main sewer drain and none of the toilets or drains work, a reasonable period might be as little as one or two days."


    So finally the question.....

    Based on the issues that I have listed, what would be a reasonable period of time for the land lord or property manager to make the repairs?

    Additionally I have listed some additional information below and would like your opinion on whether I have a solid case to protect myself if I simply move out, request a final inspection and my pro-rated rent and deposit back, and submit a letter of notification of my termination of the lease to the property manager based on the California Civil Code of 1942. I know it could go to court, but will I win? Keep in mind the law states that oral or written notification of the maintenance repairs may be given, which we gave basically as soon as we moved in (within 5 days since the walkthrough paperwork was due within 5 days of moving in) so the letter I sent yesterday is simply another notification of the issues as we already notified him about during the walkthrough.

    I believe these issues to be within the scope of health and safety as described in the California Civil Code 1942. I entered a work order for the electrical problem using the property managements web based work order interface. Under priority I put "very high priority," the highest other than emergency. We followed up with a phone call the next morning to ensure it was received. We were told that the owner was a licensed electrician and the property manager needed to call him. He would get back to us by 1 pm. We received no return call at 1 pm. I submitted written notice to the landlord via email at 8pm regarding all the issues I listed above as Health and Safety. At 11pm (now over 24 hours) the property manager states that he will have an electrician come out tomorrow and told us to submit the other issues into the web based interface for maintenance requests. At best, I am guessing that the electrician will come out mid-day tomorrow and the problem could be resolved by the end of the day, but I think most likely the problem will consist of weeks of troubleshooting and repair. Also I have pictures on my cell phone of me putting the multimeter in the outlets and readings of 40VAC and 210VAC. While not certified I was an aircraft electrician in the Army so I know how to use a multimeter to test voltage.

    The infestation issue has been on-going since we moved in and noted on the walkthrough. While it has been addressed the smell is not fixed, its only being masked. Since the pest control people cannot go in the attic, I believe the property manager is required to hire someone else to get to the bottom of this in a reasonable amount of time?

    The front door not latching was also mentioned on the walk through and noted on the paperwork. When asked about it, the property manager told my wife that the owner said it would require drilling another hole for a new door latch and that he wasn't going to do it. It may be hard for me to prove in court that we specifically asked to have it repaired since the request was made verbally.

    The flooring transitions were also noted on the walkthrough paperwork, but I have no proof or recollection of specifically asking to have it repaired until now. Although the property manager did assure us that he would work on the long list of repairs that we listed on the walkthrough.

    Wow, thanks for reading this super long post. I know the devil is in the details so I tried to provide many!
     
  2. army judge

    army judge Super Moderator

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    The law does provide the self-help remedy of abandonment. However, it is never as straight forward as the tenant sees it.

    A court will ultimately decide this. It is far easier to second guess your decisions and reasoning.

    I suggest you speak with a local attorney, before you avail yourself of this remedy.

    The initial consultation is normally free. An attorney that practices in your jurisdiction can inform you as to how courts have ruled in the past on these issues.

    Have you discussed any of your concerns with the landlord? What position has she/he taken?

    Don't be too hasty. I know you feel taken advantage of and cheated. Just think long and hard, before you leap!
     
  3. nc555

    nc555 Law Topic Starter New Member

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    We have discussed our concerns with the landlord. My wife feels that she has been blown off. There is a huge laundry list of deficiencies noted on the walkthrough. My wife was assured that these repairs would be worked on.

    Specifically in regards to the electrical problem, we feel the landlord has not taken the issue as seriously as we are. After all, the issue has caused over $1000 in damages to our property, which we now have to file a renters insurance claim. We are also living in half our house, since the other half of the house has nothing plugged to avoid further damage or possible catastrophic results from further over-voltages and potential fires. I expected a repairman within 24 hours, much the same as I would expect if I had another issue that left untreated could cause more damage.

    The other issues seem small to the land lord and it seems to me that he thinks that he can hide behind this statement in our lease agreement, which says "11. Maintenance: The tenant is responsible for all repairs needed in or about the leased premises up to and including $100." However, later in the lease agreement it says " 17. Alterations; Repairs: Unless otherwise specified by law or paragraph 27C, without landlords prior written consent, (i) tenants shall not make any repairs, alterations or improvements about the premises including: painting, wallpapering, adding or changing locks, installing antenna or satellite dish(es), placing signs, displays or exhibits, or using screws, fastening devices, large nails or adhesive materials...(iii) tenant shall not deduct from rent the costs of any repairs, alterations, or improvements; and (iv) any deduction made by the tenant shall be considered unpaid rent. Paragraph 27C discusses the right of a final inspection and the ability of the tenant to make repairs as required for a full return of the deposit. The two clauses in the lease agreement contradict each other and cause confusion, which if I am correct are commonly ruled in favor of the person who did not create the contract.

    So as far as "second guessing my decisions and reasoning" I feel that I don't have the option of repairing the issues myself and charging the landlord, because in paragraph 17 he muddies the water by attempting to take away my legal right to do that. Furthermore, he wants me to pay for all repairs up to and including $100, but later prohibits me from making any repairs. So, confronted with all these issues that are not being responded to fast enough, I simply move out? I think that is reasonable. But, what is a reasonable amount of time?
     
  4. army judge

    army judge Super Moderator

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    You've convinced yourself.
    Your landlord will sue for damages (unpaid rent) after you move.
    You'll probably counter-sue to recover your deposit.
    What's reasonable?
    That will be one of the points of contention at trial.
    Self help remedies seldom end without discord, discontent, and litigation.

    It is almost impossible to legally break a lease.
    It looks easy.
    It isn't, even for a lawyer.


     
  5. fredrikklaw

    fredrikklaw Moderator

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    NC555:

    By all accounts given here, you have done all the right things so far in order to have the landlord correct the necessary and [essential] problems such as faulty electric wiring [and/or circuitry] and pest infestation, but you are looking in the wrong place for the available remedies.

    As a tenant, you never want to “abandon” a property even though your reasons for doing so might be quite honorable, as not only does it sound to be an ugly word with negative connotations, it is also a landlord-favoring term and action whichever way you look at it. What you should “abandon” here, however, is the Civil Code for finding the solution to your dilemma and start looking to the real authority in such situations which is the Landlord-Tenant Laws which, if you followed and adhered to properly when proceeding in such matters, will eliminate any future actions by the landlord against you.

    So, although it proscribes the same principles and similar type of actions, the Landlord-Tenant law makes provisions for a tenant to “terminate the lease” due to landlord’s breach of either the “Implied Warranty of Habitability” or the ” Covenant of Quiet Enjoyment” that are automatically read into every lease agreement the courts country over.

    In fact, the landlord-tenant law gives an aggrieved tenant a few choices when faced with such problems. One being of course the repair-it-and-deduct-it-from-rent option which is really never an ideal option because it can lead into all sorts of liability problems for a tenants, especially if the problem in question has to do with electrical wiring and other such very critical house functions. The provision in your lease which makes you responsible for repairs up to $100 really pertains to minor, superficial, dinks and scratches, and glass break repairs and anything as major as wiring or plumbing is the landlord’s responsibility. The other option that is afforded to you by this Law which you could consider would be to exercise the right of a tenant to withhold rent until all repairs are made and problems cured, with adjustment in the monthly rental amount to compensate for the reduced daily rental value for however many days, weeks, or months the problems persisted.

    The ultimate option available to you is of course to declare the lease terminated due to landlord’s breach of the Warranty of Habitability, stop payment of rent and begin the process of moving out of the property. But keep in mind that the doctrine of “reasonable” will apply to you if you go for this option just as it does to the landlord when carrying out repairs, meaning that your move out should be completed within a reasonable amount of time for it to be considered a lawful move; in other words, you cannot take six months to move out of the property but should endeavor to move out in the shortest time possible. And a reasonable amount of time for you to move out would be anywhere from 30 to 90 days.

    Follow the landlord tenant laws and there will be nothing the landlord can sue you for now or in the future.

    fredrikklaw
     
  6. nc555

    nc555 Law Topic Starter New Member

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    Thank you. It does sound better to "terminate the lease" then "abandon the property". I have done alot of research and I will now look into the landlord-tenant laws just to be sure I am familiar with everything I am dealing with. While he won't be happy, I want to provide the landlord with enough information that he won't want to take me to court because he won't think that he will win and will waste his time and money.
     

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