Q: I’ve lived in a 40-unit apartment building for the last five years. Until now, I have paid for water, as required by my lease, based on a submetered water system. Recently, the landlord said the meters are broken and she has decided not to fix them, claiming that they are inaccessible. She is now billing us on an allocation system, based on square footage and number of people in the apartment. My water bill has doubled! Can they bill us for water this way or are they required to use meters? –Leslie P.

A: Shifting the cost of water to tenants is becoming increasingly popular with landlords. Doing so reduces their costs of doing business, and though they could build in the cost of water when setting the rent, many hesitate to do so for fear that they will end up with a higher-than-market rent. Some will argue that when tenants pay for their specific usage, they tend to conserve more, which is important in drought-plagued parts of the country.

Submetering each rental unit is the best way to shift water costs to tenants. The meters read only what you use, regardless of the size of your family or the size of the unit. But submetering can be expensive if it’s done as a retrofit, and as a result, landlords with nonsubmetered properties use what’s known as the "RUBS" method ("ratio utility billing system"). This system attempts to estimate each unit’s usage based on the number of persons in the unit and its square footage. But as we all know, no two people will use the same amount of water — one tenant may be frugal to the point of taking "Navy showers" only or showering at the gym, while another may indulge in 20-minute soaks twice a day.

The key to answering your question lies in the specification, in your lease, that you will pay according to what the submeter says. Your landlord is bound to follow this term of the lease, just as she is bound to deliver parking, if it’s included; or to continue to pay for garbage, if that’s what the lease says. A decision to abandon the meters in favor of an imprecise system just won’t cut it. One wonders, besides, about the motive behind her decision — it’s hard to imagine that the meters are truly out of sight and inaccessible. No utility company would place them where they can’t be serviced, let alone read. One can’t escape the suspicion that the owner is simply looking for a way to make a little money, by having tenants’ water payments add up to more than her actual bill.

Have a talk with the landlord and point out that she is bound by the terms of the lease, just as you are. When the lease expires and she asks you to sign a new one, she is free to abandon the submetering system and use the RUBS method. Until then, she needs to either fix the meters or figure out a way, with tenants’ input, that will result in a fair allocation of costs (your water usage history is the place to start).

Q: I’ve been advertising for a tenant to occupy my single-family rental, and interviewed someone whom I just don’t like. He didn’t look me in the eye; his answers to my questions were evasive; and he began asking about improvements to the house that aren’t necessary. He has a job and appears to have enough income to pay the rent. He’s also a member of a racial minority. If I can’t point to anything besides my unease, am I breaking the law if I refuse to rent to him? –Jake W.

A: Landlords are always on better ground if they can point to objective criteria, such as an inability to pay the rent, or a poor rental or bill-paying history, as the reason they turned someone away. Reasons like this don’t prove that the landlord did not have discriminatory motives — they just make it harder for rejected applicants to prove that the motive was anything but businesslike. …CONTINUED

The federal anti-discrimination laws, which apply everywhere and to most landlords, don’t specifically forbid landlords from using subjective measures like the ones you describe. You can take into account the applicant’s appearance, his demeanor, your estimate of his trustworthiness or truthfulness, or other subjective factors. Indeed, businesspeople utilize such conclusions and opinions in their daily affairs all the time. An owner may legally refuse to rent to an individual simply because he does not like him.

But what you’re legally allowed to do, and the practical consequences to you if you take advantage of this liberty, can be two very different things. If your decision not to rent to someone rests on subjective reasons like this, you must understand that if the disappointed applicant is a member of a protected class, as is your prospect, your decision can be challenged. You must be able to prove to an judge or jury, before a government agency hearing or in a lawsuit, that these factors, and not an unwillingness to rent to members of this racial group, were the basis for your decision.

Because it’s very hard to prove that you weren’t using subjective criteria to mask illegal discrimination, careful landlords’ lawyers will tell their clients never to rely on these amorphous reasons when rejecting a prospect. Instead, by doing the screening that all landlords should engage in, you’ll probably uncover objective facts that will justify, if not take the place of, your subjective conclusions. Take, for example, this prospect’s instant dissatisfaction with aspects of the property. Chances are that if you talk with this person’s past and current landlords, you will hear that he’s a demanding tenant who never leaves the owners in peace. Right there, you’ve got solid evidence to justify a rejection, and it has nothing to do with your personal radar.

The bottom line, to borrow a presidential phrase, is to trust but verify. Your instincts may indeed be correct and have nothing to do with illegal discrimination, but in order to protect yourself, be sure to do the work needed to provide a defense. And never, of course, entertain personal dislikes that are founded on illegal discrimination.

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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