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Tenant/Renter Rights

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Tenant/Renter Rights

Understanding your lease agreement

This week’s question comes from a concerned parent in south Marin, who asks,

Q: “My daughter and four roommates have lived in a two-bedroom apartment in San Francisco for the past two years. When they first moved in, they agreed with the landlord that they would be billed monthly for the water bill. It did not say so in the lease, however. As the year went on, they were never billed even though they asked him repeatedly for it via email.  Now, two years later, he is demanding the racked-up $1,000+ water bill for August 2017 through July 2018 to be paid with their rent check for June 1st. Is this legal? How should they handle this situation?”
A: Dear Concerned Parent, It is difficult to answer this question without the benefit of reviewing the lease document. However, I will answer generally with my understanding drawn from seeing numerous lease agreements as both a renter and landlord.

The rental of an apartment is a contractual arrangement, comprising a landlord’s offer to lease under specific terms and a tenant’s acceptance of those terms. California Civil Code § 1941.1(a)(3) dictates that the landlord bears responsibility to render an apartment habitable by providing water facilities meeting specific regulatory criteria. Generally, a lease agreement includes provisions pertaining to payment for utilities provided, so I would first suggest that you look at the lease to see what, if anything, it says about utilities and which party bears the expense for them.

Next, you should look toward the end of the lease agreement to see if it has an “merger” or “integration” clause, which would look something like this: “This Agreement contains the entire agreement between the Parties to this Agreement and supersedes any and all prior agreements, understandings, representations, and statements between the Parties, whether oral or written, and whether by a Party or such Party’s legal counsel. The Parties are entering into this Agreement based solely on the representations and warranties herein and not based on any promises, representations, and/or warranties not found herein. No modification, waiver, amendment, discharge, or change of this Agreement shall be valid unless the same is in writing.” These types of clauses are standard in most contracts, including lease agreements, and indicate the parties’ agreement that the contract’s only enforceable provisions are those set forth within the “four corners” of the document, including any addendums or modifications signed by all contracting parties.

Therefore, if your daughter’s lease agreement includes a merger clause and does not include any specific provision for water payments, she can make a strong argument that any oral agreement to pay water bills, outside the four corners of the lease, is unenforceable.

If the lease document contains no merger clause, however, the landlord could argue that an oral contract existed requiring the tenants to pay for water on a monthly basis and point to the roommates’ emails asking for the water bills to demonstrate the nature, existence, and/or terms of that contract. In this scenario, your daughter could still raise a “waiver of rights” defense to the landlord’s claim. Parties to a contract may waive certain contractual rights by not acting upon them. Here, your daughter could argue that her landlord, having not presented any monthly bills in the past two years, has waived any right to demand payment for that bill now.

Your daughter could bolster this waiver argument by citing to California Civil Code § 1954.205, Bill for water service; calculation; inclusion of other lawful charges, which sets forth the law regarding landlords billing for water services. The following relevant parts would apply here: “(a) As part of the regular bill for water service, a landlord shall only bill a tenant for the following water service: (1) A charge for volumetric usage, which may be calculated in any the following ways: (A) The amount shall be calculated by first determining the proportion of the tenant’s usage, as shown by the submeter, to the total usage as shown by the water purveyor’s billing. The dollar amount billed to the tenant for usage shall be in that same proportion to the dollar amount for usage shown by the water purveyor’s billing. . . . (a) Submeters shall be read within three days of the same point in each billing cycle. (b) Payments shall be due at the same point in each billing cycle.” If your daughter can show that her landlord failed to read the submeters (if any) regularly and provide the bill as required, this evidence would further substantiate an argument that he waived his contractual right to demand payment of the water bills.

I hope this helps you, your daughter, and her roommates. If the landlord doesn’t back down, I suggest that she consult the San Francisco Tenant’s Union for more advice at www.sftu.org.   

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What Is The Law Regarding Rental Security Deposits

This week’s question comes from Maria in Fairfield who asks: “My mother rented an apartment on a month-to month basis. She gave the landlord first month, last month and two month’s security. She and the apartment manager had a dispute concerning my brother and his wife who came to stay for several days. They were noisy and upset the tenants. My mom had enough of her harassment and told the manager that she was going to move out.

She gave 30 days notice. She moved out before the thirty days and tried to schedule a walk-through to get her deposit back. The manager said that my mother could come back and clean the apartment and get her remaining items. The manager changed her position and told my mom she could not come back in to clean or get her things. She also said that she would not give my mother back her security deposit because there was a lot of damage. That’s not true.

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Don’t Be Overcharged on Your Rental Deposit

Before beginning this week’s column I want to thank the many readers who sent me get well wishes via the Internet as well as through personal notes. It is very heartwarming to me to not only know that people read this column but to think that they would take the time out of their day to wish me a speedy recovery. This includes my former neighbors in Forest Hill the Vukasin family, Vlaho, Yvonne, Michael and Peter.

I continue to convalesce though now I am out of the hospital, back home with my family, and returning to work well in a wheelchair. I thank God that my injuries are not more severe because, as a trial lawyer, I have the unfortunate experience of sitting across the table from people who have suffered even worse life altering, or life ending experiences.

My own collision and injuries deepen my passion and conviction to help those who find themselves in the situation through no fault of their own.I’m learning a lot about disability access, things you don’t think about until you are confinement in a wheelchair and have to make your way about in a world designed for those who walk. You can bet that some of my upcoming columns will address issues relating to disability rights. As I learn more I will share with each of you so that we can all understand our rights and responsibilities.

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Landlord Must Prove Deposit Deductions

Return of a tenant’s security deposit is covered by Civil Code section 1950.5. The security deposit is the property of the tenant, and sums can only be withheld for items described under 1950.5. These items include: 1) to remedy a tenant’s unpaid rent, 2) to repair damage, 3) to clean the unit, and 4) to restore, replace or return personal property. The deposit cannot be used to repair damages for “ordinary wear and tear” that occurred during the tenant’s term, or to repair any damage that pre-existed the tenancy.
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