Q: We’re tenants in a condominium complex, where we’ve lived for a couple of months. We have just learned that the complex has settled a big lawsuit with the builders, which will mean we’ll need to temporarily move out while workmen repair water damage to the ground floor and garage that was caused by years of leaks and seeps. Although the owner will give us some relief with the rent, he won’t let us out of our lease, which we’ve asked for (we’d rather move out once and be done with it). Do we have any legal grounds to break the lease? –Vicky and Sam S.

A: The answer to your question turns on whether the owner should have told you about the pending lawsuit and the underlying problem before you signed the lease. Many states require landlords to disclose specific information to applicants, such as the details of any shared utility arrangements, any pending suit to foreclose or notice of default under a trust deed or mortgage, and the existence of any outstanding code violations. Some states require landlords to tell tenants of incidents of prior flooding, or any plan to demolish the property. And of course, all landlords must disclose the known presence of lead-paint hazards.

It’s unlikely that any state statute requires landlords to disclose the existence of pending litigation against the property’s builders. But that isn’t the end of the matter. First, the lawsuit was based on recurring water damage, which alone (aside from whose fault it was) is an important piece of information to know before deciding to rent a property.

If you’re in a state that protects consumer transactions, your landlord has a general duty, beyond specifics in the code books, to disclose information about a rental that would affect its value and desirability, if the landlord knows that the tenant is unaware of the information and it’s not within reach of a reasonably diligent tenant. Surely a seasonally damp and flood-prone ground floor would qualify as important information. That this problem is the subject of a lawsuit would only add to your argument, because as a tenant you would face not only the unpleasant conditions, but the possibility that you’d have to move out for a significant amount of time, as well.

So now, what to do? The most satisfying approach would be to file a lawsuit asking a judge to rule on whether your landlord’s failure to disclose will void the lease — technically, you’d be arguing that the nondisclosure amounted to fraud. But this is a complex matter (you’d be asking for a "declaratory judgment"), which you probably can’t bring in small claims court — you’d have to go to regular trial court and hire a lawyer. It would be worth it if you had purchased the property, instead of rented it, and wanted out of the contract (the issues are the same). This approach isn’t practical in a rental context because it will cost you more in lawyers’ fees and court costs that the hit you may take if you simply break the lease.

If you break your lease, in most states you’ll be on the hook for the balance of the rent for the lease term until the landlord — using reasonable efforts — re-rents the place. (Of course, it’s not rentable during construction, and those months should be kept out of the equation.) The worst-case scenario is that the market is soft and the unit doesn’t rent for months, or rents at a lower rent than yours.

Theoretically, you could be sued for months of rent or rent differential, but if that happens, you can defend yourself by bringing up the landlord’s failure to disclose the conditions and the probability of an inconvenient move. If you’re fortunate, the judge will buy your argument that these were material pieces of information that affected the rental’s value and marketability, and you might end up with the judgment you wanted all along: This landlord’s failure to be candid amounts to fraud, which voids the lease and any attempts to hold you to it. …CONTINUED

Q: I recently moved into an apartment complex that seems to be against children. Adults are allowed to make noise well into the night with not even a word said by the manager, but as soon as my two daughters play outside, the manager appears at my door, telling me to quiet my children down. My kids feel that they can’t go outside or even use our own patio. Is this legal? –Brian

A: While it’s perfectly OK for management to make and enforce reasonable noise standards in your apartment community, they cannot do so in a way that singles out members of a legally protected class. Children are a legally protected group; under federal and state law, discrimination against families with children is illegal. Your description of management’s response to your kids suggests that they are countenancing adults’ noisemaking while coming down hard on the normal sounds of kids’ play.

This doesn’t mean that all play noises should be allowed, no more than all adult merrymaking should be allowed, either. A game that involves roller-skating down the hallways is both unsafe and unreasonably noisy; an adult party with high-decibel music is similarly unreasonable.

Aware that children cannot be unfairly targeted, some renters jump to the conclusion that rules directed solely at children are automatically illegal. Not so — if they are based on an obvious, common-sense reason, they can pass muster. For example, prohibiting children unaccompanied by an adult in the swimming pool area is sound policy — no one would argue that a 5-year-old should have the right to use the pool on his or her own. But at which age should a child be allowed unsupervised use — surely 16 is too old, but what about 10? You won’t find a bright-line rule here — even the American Red Cross declines to give a specific recommendation, advising only that each facility make its own rule, and that parents watch their children when they’re around water.

You might want to have a talk with management, pointing out that they are enforcing noise restrictions in a targeted, illegal manner. If you can’t resolve the problem on your own, consider filing a complaint with the Department of Housing and Urban Development (www.hud.gov). Following an investigation of the facts of your situation, HUD may bring you and management in for a conversation (known as a conciliation meeting), hoping to resolve the problem short of formal legal action. If things are as blatant as you describe, the matter should end there.

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 janet@inman.com.


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