Insect infestation pushes renter to breaking point

Can tenants withhold rent or break lease under dire circumstances?

Question: I live in a moderate-size apartment complex and pay more than $1,000 for a one-bedroom with a nice view. I love my apartment, but this building has lots of bugs, including spiders, ants, large water bugs, cockroaches, termites and silverfish. I had pest control spray once last summer, but the termites were back in full force after a week. I’ve had people tell me, “It’s common in this area and you’re going to have bugs no matter what.” I think this building needs to be tented or condemned. Do I have any rights and do I just move on and let the next person deal with this?

Tenants’ attorney Kellman replies:

You have the right to live in a unit maintained by the landlord to be free of significant defects affecting habitability. The laws in most jurisdictions recognize insect infestation as a defect affecting habitability. Of course the law will not protect you if you are not keeping your unit clean and such poor housekeeping is the cause of the insects. Also, most jurisdictions will not recognize termites as “insects” that affect habitability unless the infestation becomes very severe. While it is true that in the real world we must accept the limited and occasional presence of certain insects in or around our homes, we are not required to share our homes with them as if they were roommates. Keep your home clean and notify the landlord verbally of any significant presence of insects and then by letter if no action is taken. If your landlord is still unresponsive, you may contact your local housing inspector for assistance. Although withholding rent is an option, great care must be taken since if you are proven wrong as to the level of infestation, you could be evicted. You may also simply vacate the home, but be sure to give proper notice before doing so. If you are on a lease, you may use the insect infestation as grounds to break that lease, but you should seek legal counsel before attempting to break any lease.

Question: I am a landlord. I signed a lease agreement with a young woman on the first of the month. The young lady filled out and returned the move-in inspection report and made no comments of any problems with the unit. She paid full rent for the first month, plus a security deposit. She was given the keys on the first, but she did not start to move in until the last week of the month. Her father and mother had not seen the apartment prior to her signing the lease, and they apparently do not like the apartment. The father told me he would not allow his daughter to move in and has since notified me he is “rescinding the lease” and wants full restitution of February’s rent and security deposit. I have never heard of a lease being rescinded. What does he mean?

Landlords’ attorney McKinley replies:

I am assuming that the young woman who entered into the lease for your rental property is over the age of 18, and of sound mind. If so, she has the legal capacity to enter into a contract. Once you and she have both signed the rental agreement, and you have delivered a copy to her, you have formed a valid contract. Additionally, since she was given the keys on the first of the month, she has had legal possession of the property since that time, even if she elected not to move her belongings into the property until the last part of the month. In essence, she voluntarily accepted the benefits of the contract, so she is responsible for the obligations of the contract. Your tenant’s parents have no contractual relationship with you, no authority to act on behalf of their daughter, and therefore no authority to even attempt or threaten to rescind the contract.

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A residential lease agreement could be rescinded only if you committed some sort of fraud or misrepresentation in order to induce the tenant into signing the lease, or if you have failed to provide habitable premises. To the contrary, it appears from your question that your tenant had the right to, and did, inspect the property before moving in, and that her move-in inspection report did not note any defects in the property. Based on these facts, it does not appear that there are any valid grounds for your tenant to rescind the lease, and you are under no obligation to refund the rent or security deposit. If your tenant elects to move out early, she will be responsible for all rent due under the lease until the lease expires, or until you find a new paying tenant, whichever occurs first. You will still be required to provide her an accounting of the security deposit within 21 days after she vacates, but the security deposit would be applied to any cleaning, damages (except ordinary wear and tear), and unpaid rent, including rent due under the lease.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and James McKinley, member of the Moffitt & Associates law firm, which represents landlords.

E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

Questions should be brief and cannot be answered individually.


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