A Cave By Any Other Name

A Cave By Any Other Name

A Cave By Any Other Name

When my landlord voluntarily replaced the roof on my (his) building a couple of years ago I was blown away. It was the first time in nearly 30 years of my life as a tenant that this happened. It was the first time in my career as a tenant rights lawyer that I’d heard of such a thing. Usually when my clients complained about a leaking roof, the landlord’s response, after suggesting that the tenant empty the buckets more often, is to jab some tar in the hole. Every landlord has one…no, not a tar hole…an implied warranty of habitability.

The warranty of habitability, the landlord’s guarantee that he will provide you a unit with more amenities than a cave or a cardboard box, is implied in every lease, written or verbal. Unfortunately, many landlords think their properties should perform like an annuity—that the rent should just roll in, like interest, while the landlord does nothing to maintain them. After all, the lord already did the work; he bought the property. I can’t count the number of times tenants have told me when they request repairs that the landlord tells them they can fix it themselves. Or better yet, tries to charge them for repairs he has the legal duty to provide.

California Civil Code §1941.1 provides a list of minimum requirements for a habitable or tenantable dwelling. In other words, if the landlord doesn’t provide or fix the items listed in the code, he’s breaking the law. He is breaching the implied warranty of habitability in violation of your lease, whether it’s oral or written.

Roof leaks are one of the most common tenant complaints. For some reason landlords, especially the do-it-your-self types would rather spend thousands of dollars and countless hours smearing Blackjack on the roof rather than replacing it. These Cheese Balls spread more tar, one gallon at a time, than the Exxon Valdez. Any professional roofer will tell you that you can’t permanently fix a leaking roof in that manner. I had a client who successfully withheld rent for over two years because the landlord would not replace the roof and instead tried to dab it with tar. Don’t try this without legal representation.

Roof leaks are also a major cause of mold and mildew, but when you complain about the mold, the landlord invariably will tell you to open the window while you’re taking a shower. Which shower? The one from the ceiling in the living room? The health risks from certain kinds of mold are well documented.

Cracks in your ceiling and peeling paint are another indication of a roof leak. Peeling and chipping paint on the window frames can also indicate water leaks, if not from the roof, the windows and window frames. In old buildings, peeling paint can be a big problem because the paint chips contain lead. Though lead started to be removed from paint in the 1940s, only building built after 1978 are relatively free of it. The layers of paint from the past do not simply disappear. When the pail peels the old lead layers become exposed and introduce lead into your environment. Lead is especially harmful to children and can cause many health problems including brain damage.

Tenants often come to me complaining about a lack of heat. The heater goes out in the unit. The tenant informs the landlord and the landlord empathetically shrugs his shoulders and offers to provide the tenant a space heater rather than repair or (horror of horrors) installing a new heater. Never mind that your electricity bill jumps to $700.00 a month. There are actually some landlord lawyers who, with a straight face, will tell you that this is a viable alternative. It is not. Civil Code §1941.1(d) is clear that a unit is untenantable if it lacks “heating facilities that conformed with applicable law at the time of installation, maintained in good working order.” Space heaters are not facilities and have never, ever conformed with applicable law.

Old buildings often have plumbing problems. When you inform the landlord that your apartment has a six inch layer of excrement on the floor because the plumbing backed up while you were away for the weekend, the first thing the landlord asks is, “Have you been flushing tampons down the toilet?” In one of our cases at trial, the landlord testified that the hardwood floors were damaged in the when the kitchen flooded. Of course, he blamed our clients because they had the audacity to put cooked spaghetti in the garbage disposal. The last time I checked most dwelling units are required to have functional indoor plumbing. Sewer backups and leaks are the landlord’s responsibility.

I spoke to a tenant recently who showed me an email in which the landlord stated that rats in the apartment was just a consequence of urban living. What? Like the bubonic plague? Yes, millions of rats live here, but they are not supposed to be able live with you. If you have breaches in the building like holes in the walls, rats come in. And you never get the adorable ones who’ll teach you how to cook like in the movie Ratatouille. You get the rats that carry disease and crap and pee all over the place. It is the landlord’s responsibility to remove them, period.

This ain’t Florida, thank god. You don’t just assume that cockroaches will be living in your apartment. Cockroaches also carry diseases. And they’re just plain disturbing. They are very difficult to eradicate, but it is the landlord’s responsibility to get rid of them.

What have I missed? Windows that rattle and leak cold air; unfinished repairs that leave exposed walls; smelly, frayed carpet installed in 1916; gas leaks; exposed electrical wiring; leaky faucets; landlord trash storage in the backyard; rotten decks; rotten stairs; rotten floors; rotten windows; rotten doors; no second fire exit; unsecure building; no locks; inadequate heat; failed steam valve spewing hot steam throughout the unit; bedbugs (yuck)…all of these and the many other issues I haven’t discussed can be violations of the implied warranty of habitability.

The whole point of the implied warranty of habitability is to prevent landlords charging you for what your ancient ancestors could do for free—live in a cave. What can you do to get what you’re paying for? Or make the landlord pay? I’ll give you some suggestions next week.

I want to thank Claudio Bluer of Austral Housing Inspections in Oakland, California for providing some of the photos for this post. Claudio has been serving the tenant community in the Bay Area for years, documenting habitability horrors and helping tenants win their cases against negligent landlords.

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Troll in the Basement

Troll in the Basement

Troll in the Basement

You found a fairly nice apartment in a small building or house with an in-law unit. You moved in. When you applied for the place you spoke to the owner who lives in the in-law unit downstairs. He seemed nice enough, maybe a little nosey, but you understood. He lived in the building and wanted to make sure you were going to be a good tenant. It is unlikely that he told you the reason he lived in the in-law was that he couldn’t afford to live anywhere else. That his quest for the American dream to own his own property stretched him so thin he had to move into the garage. Your landlord’s dream could become your worst nightmare. Beware. You may have a troll in the basement.

A landlord who lives in his own in-law unit is usually so penurious that you can hear him squeak when he tiptoes up to your door to eavesdrop—the ultimate Cheese Ball. What does that mean to you? Well let’s put it this way: When the roof leaks, it doesn’t matter because it isn’t leaking on him yet.

I had a client who lived in building with a troll. She came to me complaining about lack of heat in her apartment. She produced an email from the landlord apologizing that he just couldn’t afford to fix the heater and that PG&E was the next to go. When she asked him about the portion she paid, he told her that she should really be paying it all because he didn’t use that much power anyway. These are the guys who have a standard answer for any tenant complaint, “If you don’t like it you can leave.”

Trolls love to visit you whether you’re at home or not. Many illegal entries are perpetrated by troll landlords. Why not? They have a key and you have a life. The anally expressive guy two posts back was a troll in the basement.

Another troll permutation is the alcoholic brother-in-law—the landlord’s down and out friend or relative. The landlord lets the troll live there because he, allegedly, feels sorry for him. Sometimes he tells the troll he can manage the place. Not the brightest strategy when there are paying customers upstairs, unless they’ve been paying too long. The only thing this type of troll can manage is his hangover. Yet, he’s the King of the Crawlspace and he won’t let you forget it. If he comes around to collect the rent, please don’t pay him in cash.

All bets are off after you start to register your concerns with a troll. He takes it personally. Then things start to happen. Suddenly you have too many roommates. He has to come inside the unit day after day to “inspect” things. You didn’t have permission to paint the place. You don’t get to park in the garage anymore. You have to tear out the wonderful garden you planted in formerly barren back yard. Weird chanting and screaming jars you awake at night. And then the surly threats, occasionally followed by violence.

What can you do about a troll in the basement? I had a client who was paying very high rent in Cow Hollow. The tenant/friend of the landlord lived in the illegal unit downstairs. After he made her life a living hell, she called the Department of Building Inspection. They made the landlord remove the illegal unit. The tenant had to go. Her life is very peaceful now. Her story is rare.

• If you live in a rent controlled jurisdiction you can file a petition at the rent board for decreases in services.

• You can sue for harassment and breach of the warranty of habitability, etc.

• You can try to get a restraining order, but that can be difficult because the troll lives in the same building.

• You can, and should, call the cops, if you have to.

Troll landlords are crazy. Sometimes I wonder how crazy because it’s a perfect ploy to get rid of rent-controlled tenants. Remember you’re still just the tenant and the troll owns the joint. Often, nothing short of incarceration will get him to stop.

I’m going to take off my lawyer hat here. Yes, he has to learn that he can’t get away with this. Yes, you have rights. How long can you live with the daily harassment? Insanity is contagious. But the rent is really cheap. You can’t afford to move. Say what? The troll can’t afford to move either. You are never going to own the place. Don’t act like you’re locked into a karmic reincarnation battle that began 100,000 years ago when your high-priestess mother sacrificed you to the God of Cheese. Get out! Run! Run now!

Besides, you will get one more legal shot at the troll in the basement. They never return security deposits.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

Even Dracula Had to Have an Invite Before He Could Enter

Even Dracula Had to Have an Invite Before He Could Enter

Even Dracula Had to Have an Invite Before He Could Enter

In vampire lore it is said that a vampire had to have an invitation before it could enter one’s dwelling. What about landlords? How many times have you heard your landlord say, “This is my property and I can come in whenever I want?” Jeez, if you’re going to suck my blood, at least be charming about it.

In California, the landlord does not have to have an invitation, but he does have to give a 24-hour written notice to enter. The notice has to specify the date, the time (normal business hours only) and reason he wants to enter. The legal reasons are narrow in scope. I recommend that you read The Unnecessary Conflict in Landlord Entries, by J. Wallace Oman. Mr. Oman is a respected tenant lawyer in San Francisco. The article discusses the common law and statutes relevant to landlord entry. It also proposes methods to deal with landlord and agent entry, especially when the property is for sale. Read it with this blog.

I am constantly amazed at how many tenants tell me that the landlord showed up at the door, without notice, to demand entry for one or another cockamamie reason. The rationale can range from checking to see that the unit is clean; to demanding to talk to roommates; or to inspecting, for the umpteenth time, something you asked them to fix three years ago. But usually it is an unspecified demand for inspection.

The most egregious examples of illegal inspections come from the tenants who lived in buildings owned or managed by Citiapartments in San Francisco. There are stories of the owner’s agent pounding on the door late at night, dressed up like Rambo in battle fatigues and carrying a gun. Many of the illegal inspections by Citiapartments were videotaped. In one case the video revealed that the tenant owned a bong. The landlords threatened her with eviction for illegal drug use. What? A bong? In San Francisco?

I am also shocked at how many tenants report that, while they were home, they heard the key turn in the lock and the landlord or his agent walked into the unit. I have dealt with two different cases where a landlord and a real estate agent, respectively, broke in to use the bathroom. One left pee on the toilet seat! In another case the landlord showed up because her daughter was in town and the landlord wanted to show her my client’s unit. In a more sinister incident the landlord tried to unlock the door and couldn’t get in. Then he attempted to coax the tenant’s young children out of unit when they wouldn’t respond to his knock.

It’s astonishing to me that tenants allow illegal entry to their homes. I know that tenants are anxious about escalating tensions with the landlord, but that doesn’t mean that the tenant always has to mollify the landlord. Believe me, if the landlord starts illegally entering your unit, chances are he’s looking for a way to get you out anyway. He’s not bringing you cookies.

Because your relationship with your landlord is unique, you should develop your own strategy to deal with illegal entries or too many entries. Learn your rights. I believe that it is always best to try to get a dialogue going with the landlord before you begin to react aggressively. Here are a few thoughts if you do have to react.

Don’t allow the landlord to photograph your unit unless there is a very, very good reason to do so.

If your landlord comes to your door and wants in, inform him politely that you need a 24-hour written notice with justification to enter. If he insists upon entering, tell him YOU WILL CALL THE POLICE. If he still insists CALL THE POLICE.

If you find your landlord in your unit without notice or permission, tell him if he doesn’t leave immediately YOU WILL CALL THE POLICE. If he doesn’t leave immediately CALL THE POLICE.

Don’t call 911 unless you truly believe you will be harmed. Usually the landlord will leave.

A couple of years ago, I spoke to a tenant who, upon returning home, found his landlord in the unit. The landlord’s purported excuse for being there was that he had come inside to do the tenant a favor by expressing his new puppy’s anal glands.

You really can’t make this stuff up.

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(415) 552-9060

They Don’t Call ‘Em Landlords for Nothing

They Don’t Call ‘Em Landlords for Nothing

They Don’t Call ‘Em Landlords for Nothing

How many times have you heard your landlord say, “This is my property and I can do anything I want?” Before you tell him to stick his anything where the sun don’t shine (I will tell you how and when to make this suggestion in subsequent issues) understand that your landlord is simply a romantic. He should be wearing a cod piece and tights.

For over one thousand years dating back to the days of ye olde English estate, a landed lord could literally do anything he desired to his tenants because he owned them. Indeed a thousand years ago, according to medieval rumor, the lord had the right of jus primae noctis—the right to bed virgins on their wedding night. Did you see Braveheart? Of course, the virgins were the lord’s tenants. That is, their husbands or fathers lived on the lord’s land. (Women were the property of husbands and fathers back then.)

The word “tenant” comes from the French word tenir, “to hold.” Many medieval tenants were “villains.” Villain. Vil”lain\, n. [OE. vilein, F. vilain, LL. villanus, from villa a village, L. villa a farm. See Villa.] 1. (Feudal Law) One who holds lands by a base, or servile, tenure, or in villenage; a feudal tenant of the lowest class, a bondman or servant. “If any of my ancestors was a tenant, and a servant, and held his lands as a villain to his lord, his posterity also must do so, though accidentally they become noble.”—Jeremy Taylor. Webster’s Revised Unabridged Dictionary, © 1996, 1998 MICRA, Inc.

It is generally accepted that the winners in wars, the conquerors, write history. The losers are always relegated to bad guy status. That the rich and powerful, especially in pre-literate societies with emerging language, imparted the meaning of words is no stretch. Do you think that a lord might have become angry if refused his right of jus primae noctis? Or that the early rebellions of Scottish and Irish tenants protesting their abuse on the lords’ lands may have embittered the powerful? Is that how the current meaning of “villain” came into use? Certainly “Robin Hood” became a British term for criminal, not the mythological hero who stole from the rich and gave to the poor. Think “hood” as used in West Side Story.

Anglo-American culture has never been kind to tenants. In the United States only property owners (always white, always male) could vote. It wasn’t until 1850 when the last property ownership requirements for voting were abolished. As time passed, the power exchange between landlords and tenants became more abstract, more “civilized” with the concept of payment of rent (although there are still a few sharecroppers in the United States today). Slavery was eventually abolished. Contracts and leases evolved, but they were usually one-sided and non-negotiable. Ring a bell? It was still the landlord’s property and he could do, for the most part, whatever he wanted, including evicting a tenant at will…with whatever force necessary.

Modern law regulating the eviction of tenants only began to develop less than 140 years ago. For example, California passed its first laws regulating lockout and forcible removal of tenants (forcible detainer) in 1872. The statutes regulating eviction (unlawful detainer) came later in 1905. The California law regulating habitability in dwellings was enacted in 1970 and it wasn’t until 1974 when the California Supreme Court recognized the right of a tenant to defend a nonpayment eviction action because the landlord refused to maintain the unit in a habitable condition. In other words until about 35 or 40 years ago, the landlord could legally toss your ass out if you refused to pay for an apartment that didn’t have heat or if the roof was so rotten you could see the stars through it at night! The California legislature finally got around to thinking that there should be a law about that in 1986.

When you ponder your paltry rights as a tenant know that they are very newly won given the long history and custom of the landlord/tenant “relationship.” If etymology (the study of the origins of words) demonstrates the DNA of culture, then the words “landlord” and “tenant” are embedded in our psyches. No wonder that we dutifully pay our rent for our overpriced hovels. No wonder that our legislature balks at protecting tenants. No wonder that the landlord says, “This is my property and I can do anything I want.” Though you may have accidentally become noble…well, at least, you can vote…the next time you’re writing your rent check remember this: You’re still paying the lord to live on his land and you’re still the villain.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060