How Do I Get Reimbursed For Utility Overages That Aren’t My Fault?

How Do I Get Reimbursed For Utility Overages That Aren’t My Fault?

Tenant Law

I rent a one bedroom apartment in a Victorian house that was constructed about 120 years ago.  The house has 4 units, one of which is owner occupied.  I pay $1750 a month plus $150 for garage parking and I’ve been in the unit since June 2010.

My lease requires that I have the water bill in my own name and pay it, which I do.  For over a year, the bill was about $50.  Late last year, it’s started increasing dramatically, and my most recent bill was over $200.  I called SFPUC and they told me they could tell I have a leak because the water is always being consumed, even at night.  I set up a time for an inspection which my landlord attended.  I could not attend as I was working.  She informed me that the inspector said the leak was not in the unit but elsewhere in the building.  She informed me she would have her son look into it, and that he has some expertise in this area.  That was two weeks ago.

I believe that my landlord is responsible for the overage due to the leak.  SFPUC says they will reimburse for half of the overage when we prove that it has been repaired.  How do I (1) get this repair done ASAP, (2) get my landlord to pay the overage, either all of it or what’s not reimbursed by PUC.

My landlord is generally a nice person but the house could be in better repair.  I don’t know if it’s an illegal unit or not, and if I got the building inspector out, I’m pretty sure they would find a good number of problems.  I don’t intend to stay in this apartment long term but do plan to stay for at least six months.  I don’t want to cause more trouble than necessary, but I want my money back for the over paid water.  Should I start deducting it from my rent?  What about the last 4 bills that were high?  What is a legal, polite but assertive way to handle this?

This is an issue that is more common than you might think. I’m not clear on whether you are paying the water bill for the whole building or just for your unit. Unit water meters, while becoming more common, are not often found in old Victorian buildings. That’s why it is more common that landlords pay for water.

A side issue here could be that the house had been chopped into units illegally. If you are also sharing your PG&E bill or your utilities are included in your rent, you should look into the possibility that your unit is illegal. SF Assessor-Recorder’s website. Of course, if your unit is illegal, that would open up a can of worms that I’m not going to discuss here.

Unfortunately, in my experience, when landlords ask their sons to look into anything, nothing gets done. Certainly, her son could be a licensed plumber and I may be wrong. But that’s the point, she is going to need the help of a professional to find and fix the leak.

You need to compile all of the documents you received from SFPUC. You need something in writing from them that states you did not cause the leak and/or that the leak is coming from a part of the building not associated with your apartment. Compile all of your water bills to get an average charge to demonstrate the amount of the overcharge.

Then simply ask the landlord to reimburse you. I think that should be done in writing and the letter should include a brief synopsis with the proof that you are in no way responsible for the leak. (BTW, I believe that letters should always be one page long, two if you must.)

This is also the time to mention that she needs to repair any conditions in your unit that may represent a substantial decrease in services–roof leaks, heating issues, broken windows, etc. You should go to the San Francisco Tenants Union to discuss this with a tenant counselor.

If the landlord doesn’t make the other repairs in a timely manner, call a Housing Inspector for the Department of Building Inspection to get any violations on the record.

If your landlord refuses to reimburse you, or, more likely, just stalls, you should notdeduct the overpayment from your rent because you could risk an allegation that you breached your lease by failing to pay your full rent for the month.

As I’ve said many times, it’s always better to be a plaintiff in a legal action rather than a defendant. File a petition alleging a substantial decrease in housing services at the San Francisco Rent Board instead.

You have already compiled your evidence, now all you have to do is fill out the form and file it. You should include any other decreases in service regarding habitability of the premises with supporting evidence. The Tenants Union can also help you with this.

One of the reasons I like working with tenants is that they’re usually nice people who are not vindictive. Most just want to get what they pay for and live their lives. Most don’t want to sue anybody and they usually look for the humane, civilized approach to resolve problems. Sometimes problems can be resolved in that manner.

Unfortunately, the landlord-tenant paradigm is based upon engrained beliefs that the landlord is always in control. When tenants attempt to assert their rights in any manner, however politely, the old passive aggressive lord of the manner mentality can rear its ugly, antiquated head.

Landlords, especially those who live with their tenants, may forget that their relationship with their tenants is simply a business relationship, no more no less.

The legal, polite way to handle this is to be polite but direct. The leak needs to be fixed and you want your money back. If this doesn’t happen, you dispassionately use the legal system to resolve the issue, no more, no less.

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The opinions expressed in these articles are those of the author, do not constitute legal advice and the information is general in nature.

Seek the advice of an attorney for any specific problem.

You understand that no attorney-client relationship will exist with Crow & Rose unless we have agreed to represent you. You should not respond to this blog with any information that you believe is highly confidential.

If you are seeking legal representation from Crow & Rose please respond by either calling us at (415) 552-9060, or going to our contact page and filling out the form.

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by Mar 31, 2011
My Landlord’s Trying To Punish Me For Complaining About Lead Paint

My Landlord’s Trying To Punish Me For Complaining About Lead Paint

Habitability

I have been living in my apartment in Oakland since August 2009. When I moved in with a roommate, we had one property management company, and now we have another (the second one bought the first one out). About 8 months into my residency here, my roommate moved out and my boyfriend and his young daughter moved in. We went to our property management company and filed an addendum but we cannot locate our copy of this. We also paid a $35 credit check fee in cash. Not long after this, we received a letter that we have a new property management company, and to send our checks there. When my one year lease was up, they requested that we come in to the office to sign another addendum. We did, and we entered into their log book that we did. They told us that their copier was broken and could not give us a copy at that time, and with a hyper 2 year old becoming less easy to contain by the minute, we agreed. At this point, we’ve now filled out the paperwork twice to add my boyfriend to the paperwork. This was in about August 2010. We never received anything in the mail, and they kept cashing our rent checks.

This month we noticed that our bathtub was chipping (our building is from 1924). We bought a lead test kit and found that it was dangerous to bathe the kid. In the back and forth with maintenance and our property management company, they all of a sudden stopped talking to my boyfriend about the problem, saying that he is not on the lease or any other paperwork for that matter. The last time I talked with the owner of the prop management company, he was quite literally screaming at me that if we don’t come and fill out an application and pay the $35 credit check fee within 24 hours, he will process eviction paperwork for us because my boyfriend is ‘squatting’.

Our checks that we pay rent with have both of our names with our current address on them. Does this give my boyfriend any sort of tenancy? Is it possible to be a squatter if you have been paying your rent on time every month?

I really believe that they are upset at us for complaining about lead paint (not only in our bathroom, but throughout our entire apartment as we have now found out) and are retaliating by looking through the paperwork to find anything wrong, or by ‘losing’ the paperwork all together. Is there anything we can do? I have been laid off and we are struggling to make ends meet, and I have no idea what we will do if we lose our apartment with our rent controls. Please help us. Is there anyone that we could even talk to?

Isn’t it interesting that the management company conveniently lost any evidence of previous consent to your boyfriend’s tenancy only after your complaint about a serious problem? This is a classic retaliation by the landlord as prohibited in California Civil Code 1942.5.

Before I discuss any legal remedies or defenses you may have, I can’t be emphatic enough, YOU MUST PROTECT YOUR CHILD FROM POTENTIAL LEAD POISONING! Lead is especially harmful to children and can cause many health problems including brain damage.

You should immediately call the local enforcement agency for the Childhood Lead Poisoning Prevention Branch of the California Department of Public Health. The website shows that Alameda County Community Development Agency is the local agency for Oakland. The website indicates that Maricela Narvaez-Foster, RN, MA is the Coordinator and can be reached at 510-567-8294. Her email ismaricela.foster@acgov.org.

My experience with the San Francisco program is that they are very responsive and very concerned about the child’s safety. When they write a Notice of Violation it has some teeth.

I also recommend that you call Oakland Building Services to complain about violations of the Oakland Housing Code. I’ll bet your unit and your building has more violations than peeling paint.

You may also want to call the Environmental Protection Agency Hotline at 1(800) 424-5323, to learn more and to ask if the EPA can provide you with any help.

If you have some well-documented complaints, and hopefully, some violations on the record, the law presumes that the landlord is evicting you with a retaliatory motive. Any notice to quit or unlawful detainer served within 180 days of your complaints creates the presumption, as long as you keep paying your rent.

Speaking of documentation, if you read Tenant Troubles, you know I always tell tenants to communicate with their landlords in writing. I also tell them to insist upon receiving receipts when they pay for something in cash. California law requires a landlord to give you a receipt for a rent payment.

For future reference, if a landlord cannot give you a copy of your lease, or in this case, an addendum to lease, because the “copy machine is broken,” tell them you’ll wait while they go to Kinkos to get a copy.

Oakland Measure EE which provides for just cause eviction, clearly provides that that a landlord’s consent to a sublet is presumed if the landlords fails to respond to a tenant’swritten request to sublet after 14 days. The problem is that you don’t have a copy of a written request.

You boyfriend is a tenant under Measure EE, and given the facts as you state them, I think a jury would be loathe to evict you.

You should be ready, however, to respond quickly to any notice you receive for the landlord. Check in with Causa Justa in Oakland and the East Bay Community Law Center to prepare yourself for a three-day notice and possible unlawful detainer (eviction lawsuit). Begin to put together a folder with any evidence you may need to defend yourself.

Tenants: This is a cautionary tale. Always communicate with the landlord in writing, email is fine. Always get and save receipts when you pay cash. Always get and save a copy of your lease. It’s unfortunate that tenants have to act like lawyers, but that’s realty in a rent controlled jurisdictions theses days. Landlords will do anything, including flat-out lying, to evict you and increase their cash flow.

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The opinions expressed in these articles are those of the author, do not constitute legal advice and the information is general in nature.

Seek the advice of an attorney for any specific problem.

You understand that no attorney-client relationship will exist with Crow & Rose unless we have agreed to represent you. You should not respond to this blog with any information that you believe is highly confidential.

If you are seeking legal representation from Crow & Rose please respond by either calling us at (415) 552-9060, or going to our contact page and filling out the form.

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by Mar 24, 2011
My Sink Stinks

My Sink Stinks

Habitability

I live in a very old building (circa 1924) and like many old buildings it has problems. Right now I’m having one where for some reason, my sink is bubbling up water and sludge like a geyser every few hours.

I had a similar problem at a similar vintage building. I called the management company, they had someone on the way within hours, and made sure the problem was fixed (it has to do with the vent system for the pipes.) No problem.

Here, however, the manager on site is taking longer to get this fixed. In the meantime I can’t use my sink to do dishes and the smell is awful. It’s not entirely the manager’s fault – the landlord (who lives far away) does not like to hire good contractors and has to approve big projects (in this case requiring the roofers to unblock the vent they accidentally blocked) thus dragging out what the manager has said is a fairly easy problem to solve.

Question is this: if this keeps up I’ll haven not had the use of my sink or my kitchen for at least a week. Do I have any recourse, financially or otherwise? It seems a bit much when I’m paying over $1000/month for a studio to have to put up with this too.

(and yes, I’ve taken photos, etc. and documented all of this).

Back in Florida, or wherever, your landlord thinks he has done enough. He reroofed the building for christsakes, what else do you want? He’s pissed that he had to spend the money, but he also thinks, “Hey, I’m a hero.” After all, how many landlords ever reroof their buildings? For more on this feel free to read my blog post, “A Cave By Any Other Name.”

This issue is more common than you might think. It happens with new tar and gravel roofs. The vents for the sewer pipes usually rise a couple feet over the roof. Yet somehow, either during the removal of the old roof or the application of the new, tar and gravel gets into the vents and falls to the bottom of the pipe assembly. The drains become clogged in the manner you describe. I don’t understand why this happens. Perhaps one of our roofer readers can help me out.

The stinky sink could become a health issue as well as a breach of the warranty of habitability. You have to get into “making a case” mode. It’s good that you have documentation. You should also begin to communicate your frustration to the manager or owner or both in writing. As I’ve said before, emails will do the trick. Tell the manager that you will be calling a Housing Inspector at the Department of Building Inspection if the problem isn’t solved in a couple of days.

You might consider hiring a plumber to repair the clog and deducting the cost from your rent, but that can get dicey. Civil Code §1942 governs the process, but you must make sure you have ample documentation to prove the landlord unreasonably delayed or refused to repair the problem. The code also provides that you cannot deduct more than one month’s rent. This remedy could come back to bite you because the landlord could try to evict you for nonpayment of rent. You don’t want to be a defendant in an unlawful detainer lawsuit, because, even if you’re right, it will cost an arm and a leg to defend the suit. And I rarely think it’s good idea to try to represent yourself in an eviction.

The better, although slower, approach is to call a Housing Inspector. She will definitely write a Notice of Violation for the problem you describe. Usually that gets the landlord to act because he could be fined by the City if he waits. An NOV also starts the clock for you to consider not paying your rent. Civil Code §1942.4 essentially provides that you can refuse to pay your rent 35 days after the NOV, if the landlord hasn’t done anything to fix the problem.

Join the San Francisco Tenants Union. They can help you evaluate your case and decide upon the best strategy to get the drain unclogged and to recover your damages. Good luck.

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The opinions expressed in these articles are those of the author, do not constitute legal advice and the information is general in nature.

Seek the advice of an attorney for any specific problem.

You understand that no attorney-client relationship will exist with Crow & Rose unless we have agreed to represent you. You should not respond to this blog with any information that you believe is highly confidential.

If you are seeking legal representation from Crow & Rose please respond by either calling us at (415) 552-9060, or going to our contact page and filling out the form.

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by Nov 11, 2010
Toilet Traumas

Toilet Traumas

Habitability

I am a huge fan of your column, but because my property managers are usually pretty great and responsive to problems, I never thought that I would have a question for you.

However, I have an ongoing problem with the toilet in my bathroom, which has been “fixed” twice before already (I’ve lived in my place three years), but is acting up again.  The problem has to do with the hose that fills up the tank that holds the clean water; it gets clogged and then will suddenly spray water all over my entire bathroom–often when I’m doing things like….oh…trying to get ready for work in the morning.

Anyway, this same thing just happened again, for the third time. Since it happened on a Sunday, I had to call the “emergency line” for my property managers.  I left them a voicemail, but never heard back.  They will be in the office on Monday, and by the time you answer my question, I’ll have dealt with this issue, but since I’m sure I’ll have this plumbing problem again, I thought I’d ask for future reference:  If I have called several times and can’t get in touch with the property managers, and if the toilet is unusable (which it is), is it within my right to call a plumber myself, have that person fix it, and deduct that bill from my next month’s rent?

My other question is this: at what point can I get a “second opinion”about the plumbing (and I’m prepared for your answer to be “never,” if that’s the case)?  I feel that the problem with my toilet may even be the toilet itself, or even the pipes (the pipes in my neighbor’s apartment sprung a huge leak in Dec., sending a flood of water into the restaurant below his unit.  What I’m saying is that I have a feeling whatever “fixing” has occurred with my toilet may just be temporary “quick-fixes” designed to stave off replacing things (like the toilets and maybe even the pipes) that need to be replaced rather than “repaired.”  So…if I think that’s the case, can I call out a plumber to assess what’s happening with my plumbing and see how that person’s “diagnosis” compares to the one arrived at by the contractor who works for my property managers?

I’m channeling Dr. Leonard “Bones” McCoy, the irascible doctor from the original Star Trek: “Dammit, Jim, I’m a lawyer, not a plumber!” Except that I was a plumber of sorts in a past life. Back in my painter/handyman days, I crawled under a lot of toilets. No, I’m not going to regale you with any anecdotes about what you can find there.

Let’s face it; toilets are a big part of our lives. That’s why you should know how they work.

If you are experiencing a leak in the supply tube or supply line, the spray or dripping will likely occur at the fixture connecting to the tank or the pipe coming from the wall. There should be a valve at the wall as illustrated. If there isn’t a valve, the landlord should install one. If the supply line leaks, you should be able to turn it off.

In older buildings, the line could be ¼ inch copper tubing. Usually that’s the culprit. Copper tubing can crimp and bend at the fitting points and lose the ability to seal. When I was working in the trades, we routinely replaced copper tubing with flex hose. You can go to Cole Hardware or any plumbing supply store and find the appropriate length for about five bucks. Turn off the water, remove the old supply line and replace it with the flex hose.

Or print this and show it to the management repair person.

If the leak is or spray is coming from the valve, it should be replaced. It is unlikely that the line is clogging up. If it is that means there is something wrong with the water supply.

You’d likely see clogging in other faucets in the unit. That’s a problem, you’re drinking it!

Indeed, given your description of the neighbor’s leak, there could be serious issues with the plumbing.

California Civil Code §1942 provides that a tenant can “repair and deduct” if the tenant gives the landlord reasonable notice and if the amount is less than one month’s rent. The law presumes that reasonable notice is 30 days unless circumstances warrant otherwise.

In your case, it would be reasonable to call a plumber and bill the landlord because loss of the toilet could be considered to be an emergency. If, at the end of the month, the landlord serves a three-day notice to pay the amount you deducted, pay it. Then file a petition for decrease in services with the Rent Board.

You can always get a second opinion, just don’t expect the landlord to pay for it.Depending on other conditions in the apartment, you may want to call a Housing Inspector from DBI.

Next week I’ll talk about jiggling the handle and “Oh my God! What’s that?!”

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The opinions expressed in these articles are those of the author, do not constitute legal advice and the information is general in nature.

Seek the advice of an attorney for any specific problem.

You understand that no attorney-client relationship will exist with Crow & Rose unless we have agreed to represent you. You should not respond to this blog with any information that you believe is highly confidential.

If you are seeking legal representation from Crow & Rose please respond by either calling us at (415) 552-9060, or going to our contact page and filling out the form.

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by Jul 21, 2010
What Constitutes a “Decrease In Services”?

What Constitutes a “Decrease In Services”?

Tenant Law

I have lived in a particular flat in the Mission for about 3 years. It was in horrible shape when I moved in, but my partner and I cleaned it up. The landlord always comments on how great it looks.

The problem is that there are a number of maintenance issues that never seem to get addressed. There are some wiring issues in the front of the flat where the lights don’t work. The roof leaks in several places, as well as the windows. The linoleum in the kitchen is peeling and there is a chronic mold problem in the bathroom (tub needs to be re-grouted).

Also, it doesn’t appear that we have regular trash service as we throw it out on our back stairs and it doesn’t get taken away every week. He also has refused our request for our FREE recycling and composting bins. I’ve written a couple of letters and I pretty much get a flat out “no” (in terms of the lights, flooring, garbage bins) or it takes him months to get anything done (like the roof, which is still a work in progress).

I almost want to call an inspector to force him to make the fixes, however I’m afraid that we will have to move out for an extended period of time and we risk losing the place. Our landlord only owns one rentable property, the rest of the building is his small business.

His main excuse is a lack of funds, which I can sympathize with. However, I would like to know what our options are. As I mentioned, the place was pretty much in worse condition when I moved in so I’m not sure if a “decrease in services” rent reduction is the way to go.

Of course you have a decrease in services! You’re living in a unit with a leaking roof, faulty wiring, persistent mold and no garbage service. You could be describing a trailer in Mississippi as opposed to a flat in San Francisco and your rent should be reduced accordingly.

This may be difficult to fathom, but you could be living in a death trap. I recently spoke to a tenant who described similar living conditions that were a pain in the ass but bearable because the rent was cheap. Bearable until the electrical outlets started sparking and a fire broke out in her young daughter’s bedroom.

Your landlord is a classic Cheese Ball. He’s so cheap he squeaks. He’s not above collecting your overpriced San Francisco rent. He’s happy to take all of the tax write-offs that are available to him and not to you. He’s a shabby little version of an insurance company–he wants to take your money and provide nothing in return. Believe me, the landlords who cry poor, like insurance companies, are some of the richest ones out there because they’ve squirreled away all their dough. In the worst cases these landlords kill tenants.

As I describe in Wet, Cold, and Moldy, my first SF Appeal column, you have already notified the Cheese Ball and now you need to do something about it.

Call a housing inspector from the Department of Building Inspection. Check to see if the building has complaints or violations from the past.

What? No garbage pick-up? You throw the garbage on the back stairs? Are we still living in the 18th century? Landlords are absolutely required to provide garbage service for both residential and business tenants. San Francisco Health Code 291.1, et seq. (and following sections) is clear on this point. Landlords who fail to provide garbage service can be convicted of a misdemeanor.

Will you be forced to move from your apartment because of the repairs? I think it is unlikely because the repairs do not, from your description, seem to be extensive enough to render your unit completely uninhabitable.

You may, however, reconsider moving out when you get sick of the landlord coming over every day to “inspect” rather than doing any work on the place. For this reason I insist that landlords use licensed contractors and that they provide 24-hour written notice pursuant to Civil Code 1954.

When all the violations are in place you should certainly file a petition at the Rent Board to reduce your rent due to substantial decreases housing services or call a competent tenant attorney to considering filing a lawsuit.

Good luck. You’re going to need it.

Is This Legal Advice?

Ask yourself four questions:

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The opinions expressed in these articles are those of the author, do not constitute legal advice and the information is general in nature.

Seek the advice of an attorney for any specific problem.

You understand that no attorney-client relationship will exist with Crow & Rose unless we have agreed to represent you. You should not respond to this blog with any information that you believe is highly confidential.

If you are seeking legal representation from Crow & Rose please respond by either calling us at (415) 552-9060, or going to our contact page and filling out the form.

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by Jun 2, 2010
I Stopped Paying My Rent Because Of Maintenance Issues, Now I’m Getting Evicted

I Stopped Paying My Rent Because Of Maintenance Issues, Now I’m Getting Evicted

Habitability

My landlord gave me a three day notice for not paying rent and I want to know if I should let it go and fight the eviction. We started renting the house four years ago, the first problem started the day we moved in with the heater not working properly this continued for a year until the landlord replaced the heater. Another time, the landlord took three months to fix broken flashing on the roof over my daughter’s bedroom. Every time it rained, it rained in my daughter’s room. I only me paid half rent during that time. The landlord and property management take their time on any request I make for repairs. Should I fight the eviction?

This is a great question. I hear versions of it all the time. My first response, without knowing all the facts, is almost always no.

We have a saying in the lawyer business, “It’s better to be a plaintiff in a lawsuit than a defendant.” Even though you may have a viable defense based upon what looks like the landlord’s violation of the implied warranty of habitability, the cost to defend an unlawful detainer could run tens of thousands of dollars and there is no guarantee that you will win.

Believe me, there are still judges out there who do not understand that breach of the warranty of habitability is a valid defense to eviction for nonpayment of rent, more than 35 years after the seminal 1974 California Supreme Court decision in Green v. Superior Court.

Your case could also be compromised by the fact that the landlord seems to have compensated you for some of the decreases in services by accepting less rent when the house was less habitable. The landlord is going to claim that he always repaired the conditions (eventually) and that he discounted the rent fairly as consideration for your inconvenience.

You don’t mention if you have notices of violation from the local code enforcement agency, nor do I know if all of your complaints have been made in writing. Those are key elements to a defense to an eviction. That’s one of the reasons why I harp on communicating in writing and calling a housing inspector.

If you live in San Francisco, you have an excellent venue to adjudicate your habitability claims–the San Francisco Rent Board. If you file a petition for decreases in services, you become the petitioner (“plaintiff “) in the case and the landlord has to defend against your claims. You don’t have to hire a lawyer to make your case at the Rent Board. In San Francisco, it is almost always preferable to pay the rent during the notice period and then file a petition at the Rent Board.

If you do not live in a city that has rent control, that’s usually a more compelling reason to pay your rent during the notice period. In general, courts in non rent controlled jurisdictions are even more hostile to tenants than they are here. If you pay the rent, then you will have time to strategize about how to make the landlord accountable, rather than only three days to figure out how to defend a lawsuit.

I should mention here that many landlords’ lawyers arrange to serve three-day notices to pay or quit on Fridays. Why? Because Saturdays and Sundays count. That way a tenant only has Monday to consult an attorney. Luckily the San Francisco Tenants Union is open on the weekends. But if you see me there, it’s very, very likely I’m going to tell you to pay your rent.

Is This Legal Advice?

Ask yourself four questions:

Have you spoken or written to us personally?
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Did you pay us?

The opinions expressed in these articles are those of the author, do not constitute legal advice and the information is general in nature.

Seek the advice of an attorney for any specific problem.

You understand that no attorney-client relationship will exist with Crow & Rose unless we have agreed to represent you. You should not respond to this blog with any information that you believe is highly confidential.

If you are seeking legal representation from Crow & Rose please respond by either calling us at (415) 552-9060, or going to our contact page and filling out the form.

Crow & Rose, Tenant Lawyers

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by May 19, 2010
How Do I Get My Landlord To Pay For Property Damage They Caused?

How Do I Get My Landlord To Pay For Property Damage They Caused?

Habitability

The neighbor below me had the ex-apartment manager work on her radiator and he didn’t put the parts back together correctly. He still works for the management company, Laramar S.F. Urban. She turns it on, and leaves for the day. The pipe to the radiator wasn’t sealed correctly, so steam filled the apartment for more than 8 hours, saturating the walls and ceiling, causing the kitchen linoleum to peel, and when the fire alarm finally went off as the front door was opened, the hallway filled with so much steam, it was raining.

Laramar scraped some paint, put down some tile and want her to move back in. She’s terrified that that the lead at 380 ppm (she had the radiator water tested) means it’s going to outgas lead and who knows what else, and mold is growing, and Laramar has done nothing for her; she’s living at her office. This happened January 7th, 2010 and she’s faithfully paid her rent. DBI says the work done so far is substandard and not enough.

What should my neighbor be doing to get paid back for all of her things, and get moved into a different unit? She doesn’t want to move back in to the old place, it’ll take too long for them to really do the right kind of repairs, and now she’s scared of the place. In part, because she saw the men scraping away at the bubbled paint, and realized none of the lead safety procedures for repairs were being followed. I should tell you this is a person takes immaculate care for her place, pristine custom white carpets and padding, that sort of thing. Thanks, the upstairs neighbor, wondering about his lead exposure….

This happens more than one might think. I have represented two clients with similar fact patterns. In one case the repairman forgot to install the safety valve on the radiator. My client was gone for the weekend and the apartment got a steam bath for two days! Yikes, the photos were frightening…sheets of paint hanging from the walls and ceilings; floorboards popping up; electronic equipment dripping water.

In his case, he was able to make and settle a claim with the landlord’s insurance company. Unfortunately, your case might not be as easy: I am currently working on a case involving Laramar. It took the DBI housing inspector a week to find out where he even needed to send the notice of violation. But whoever and wherever they are, they’re still liable for you neighbor’s damages if they made the defective repair.

Notwithstanding the difficulty dealing with the landlord, I’m still perplexed that your neighbor “faithfully paid her rent” for three months, while, if you are correct, there were substantial uncorrected violations cited by DBI.

Civil Code 1942.4 essentially provides that a landlord may not demand rent or collect rent if, 1) the unit is substantially uninhabitable; 2) a notice of violation has been issued; 3) the conditions have not been abated for 35 days beyong d the service of the notice; and 4) the tenant did not cause the defective conditions.

Now, am I telling your neighbor to stop paying her rent? No. But could she have legal justification to do so? Yes. You neighbor should seek the advice of a tenant lawyer or a knowledgable tenant counselor immediately. She should go to the San Francisco Tenants Union.

Given the facts as you have stated them, it is clear that the landlord should, at least, pay for any damaged personal belongings and any expenses she incurred staying away from the premises.

We all know that lead in the environment is especially harmful to children. If you have children and the landlord wants to repair this type of damage in the unit, you should immediately call the Childhood Lead Prevention Program of the San Francisco Department of Public Health. If they write a violation they require that it is abated by a licensed lead removal specialist. Those guys wear HAZMAT suits!

Lead is also harmful to adults. The only way to determine if the “offgassing” is harmful would be to test the unit thoroughly. I tend to think that you are not in danger, but it would be interest to test other areas of the building to rule that out.

The bottom line is that your neighbor must become more proactive. She must develop a strategy to deal with this that may include terminating her lease and suing for constructive eviction. She will likely have to sue for damages anyway. Sure, it may be difficult to collect, but caving into fear, or inaction and faithfully paying the rent affirms a landlord’s belief that they are above the law.

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by Apr 8, 2010
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