Question: I live in an apartment and my air conditioning broke down on a Saturday during the hottest weekend of the year. I called the manager and he said they cannot fix it until Monday. I was without the AC for three days. I think I should not pay rent for three days. What do you think?
Steven Kellman, an attorney for tenants, replies:
Building and housing codes require basic health and safety conditions like proper heat and plumbing, but they do not require that your apartment have air conditioning (AC). If you have AC in your unit, it must be maintained by the landlord because that is a feature you are paying for in the rent. For some of us, AC is a nice bonus, but for others, it may be a medical necessity and excessive heat may actually be very dangerous for some people. Therefore, the landlord has a duty to fix the AC as soon as is reasonably possible. On hot days when AC service calls are probably at a peak, it is not uncommon to take a few days to get a unit repaired so fixing the AC on Monday after a Saturday breakdown may be OK. As to deducting the rent, it may cause more trouble than it is worth since you may face an eviction for doing so. You can deduct rent only for certain repairs that you made after reasonable notice to the landlord. Here, the AC has already been repaired so your deduction would be for demanded compensation, which is generally not allowed. You may be entitled to a break in the rent for those days, but it is better to have an agreement with the landlord than risk your home for three days’ rent.
Question: I have tenants that are on a lease that has expired. My tenants have refused to sign a new lease for their unit. What are my rights with respect to evicting them with no lease? I am concerned that if they decide to leave I could lose a month or two of rent trying to find a new tenant especially if their notice comes when I am traveling.
James McKinley, an attorney for landlords, replies:
Generally, when a lease expires and tenants remain in possession of the premises with the landlord’s consent, a month-to month tenancy is created. All other terms and conditions remain in effect. You retain all rights to evict your tenants should that become necessary. You could terminate their tenancy by giving them 30 days’ notice of termination of tenancy. If your tenants fail to vacate within 30 days, you could file an unlawful detainer (eviction) action against them. Rather than evicting your tenants, you may want to consider raising the rent. Also, during a month-to-month tenancy, in the event that your tenants fail to pay rent, you have the right to serve a legal notice to pay rent or quit, and commence eviction proceedings if rent is not paid as required by the notice.
Tenants’ attorney Kellman replies:
Why are we talking about losing rent with a vacancy or evicting these tenants simply because they have not signed a renewal lease? Once the lease expires, you are still protected and it is not necessary to sign a new lease at all. As James points out, the expired lease simply converted to a month-to-month tenancy with all the same terms and conditions except the end date has passed and is no longer part of the new agreement. You get all the benefits of your original lease and you now get the right to raise the rent if you feel the market supports that action. The only downside may be that now, after one year of tenancy, you have to give a 60-day notice to evict instead of a 30-day notice. But hey, no one said these were bad tenants, only that they are a bit shy about signing a new lease. If they decide to move, you can then worry about finding new tenants — but why force them to decide to move? Some month-to-month tenants remain in their unit for many years without the necessity of renewing leases. Keep in mind that over time, you may wish to increase the security deposit, which can be done with a simple 30-day notice changing that term in the agreement. To resolve your concerns, perhaps you should simply consider allowing them to remain in possession under the current month-to-month tenancy so you can travel with less stress.
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, principal in a law firm representing landlords.
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