Q: I’ve been reading about the presence of lead in the fake grass, or turf, that’s used on playing fields and playgrounds. We have this turf in the toddlers’ area of our apartment’s playground. I snipped a bit off, and took it to a lab to be tested. The technician told me it’s way over our state’s permissible lead levels, and poses a threat to the health of the children playing on it. How should I approach my landlord about this problem? –Sandy C.
A: Although the circumstances are a bit exotic, you’ve done nothing more than discover a possibly dangerous condition in the common area of your rental property. If you had uncovered a loose front step, a degraded sidewalk or a broken banister, you’d bring the matter to your landlord’s attention and ask that he take reasonable steps to remove the danger. The same course is called for here.
Lead chromate was added to the fibers used in artificial turf to make the turf green and retard its fading from the sun. Since about 2003, turf manufacturers stopped using lead in their products, but many thousands of playing fields with old turf are still in use. As the turf weathers, breaks down and creates dust, the lead theoretically becomes airborne and can be ingested, like lead dust from degraded paint, when it’s inhaled or transferred from fingers or hands to mouth. A prominent turf manufacturer disputes this theory, claiming that the molecular makeup of lead chromate makes it less absorbable by the human body than lead dust from household paints (which used lead carbonate), and therefore less of a danger. The Centers for Disease Control and Prevention is leading the investigation of the danger posed by lead chromate in turf.
Your first step should be to alert the landlord of the possibility that the field is dangerous. If it’s old and showing signs of wear, and made of nylon, you have more to worry about than if it’s new, in good shape or made of polyethylene fibers (polyethylene fields have significantly lower levels of lead). Hopefully, your landlord will do the responsible thing and get in touch with your state’s public health agency, to ask for official testing. Meanwhile, keeping your child away from the play area would be a prudent thing to do. If the landlord won’t take action, there’s nothing stopping you from making the call yourself.
Depending on what the official testers find, you might want to consider having your child’s blood checked for elevated lead levels (a simple blood test). If the fields are dangerous, your landlord should remove them (or at least make them off-limits). At the very least, he should post warnings (which would be required by some state’s laws, such as California’s Proposition 65). The landlord’s failure to take these steps would risk injuring those who use the areas, and expose him to lawsuits from injured tenants and guests.
Q: We have a yearlong lease, but would like to leave early. We have asked our landlord whether we may find an acceptable tenant to take over the balance of the lease (six months). The market rate for units like this has dropped by about $150 per month. Our landlord has agreed, but only if we can find a tenant willing to sign a lease for a year and a half, and at our current rent of $1,850. We’re willing to make up the difference in rent for the next six months, but is the landlord’s demand for a year and a half commitment reasonable? –Allan and Shannon
A: When tenants want to break a lease and don’t have a legally recognized reason, in most states their landlords must make reasonable efforts to fill the vacancy. Once the unit is re-rented, the original tenants’ responsibility for the rent ends. But if the market is soft and the landlord can’t re-rent, or if the rate has dropped, the original tenants could be on the hook for the entire balance of the lease, or for the rent differential. …CONTINUED
Let’s assume that your landlord is subject to this duty to try to find new tenants. The critical questions in your situation are whether the landlord’s demand that you find a tenant willing to commit for 1.5 years, and at a higher-than-market rent, are reasonable. You probably won’t find any laws on the books that will answer this question directly. Like lots of legal issues — starting with "reasonable doubt" — a landlord’s "reasonable efforts" means what reasonable landlords would do in this situation. Not too helpful so far, I admit. But when you look more closely at the circumstances of your question, the reasonable course might emerge.
First, is it reasonable to expect you to come up with a tenant who would stay longer than the usual year? Essentially, the landlord is expecting you to not only cover the balance of the lease, but remove the work the landlord would have had to do when your lease expired, had you stayed — namely, find a new tenant who will sign a year’s lease. If this issue were to come before a judge, you may find the judge looking askance at this demand. A landlord who insists that you find a tenant who will commit to six months, or even a year, is reasonable; but demanding an unusually long commitment is both impractical (most tenants expect leases of only a year long) and slippery (using your leave-taking as an opportunity to avoid turnover expenses and work).
Second, what about the issue of the rent? This one’s a little simpler. You’re on the hook for the rent you signed up for, but no longer than your lease term. In six months, the landlord will have to list the unit at market rates, and he cannot use your lease-breaking as a way to subsidize a lower, market rent after you leave.
If you can’t find a tenant willing to pay $1,850 for 1.5 years (and you probably can’t), and the landlord keeps your deposit to cover unpaid rent, you’ll be headed to small claims court to demand its refund (the landlord may take this opportunity to countersue for the balance). You’ll argue that the landlords’ re-renting conditions were unreasonable. There’s a good chance you’d find a judge siding with you, and holding you responsible for only the rent the landlord would have lost had he allowed you to find a tenant willing to pay market rent for six months (you pay the difference, or $900); or market rate for 12 months (again, you pay the rent differential only for the first six).
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at firstname.lastname@example.org.
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