Spring Real Estate 2006

Publication Date: Friday, April 28, 2006

What happens when a disaster destroys rental housing?

by Martin Eichner

Q All of the recent coverage of the damage caused by Hurricane Katrina has made me realize that I need to understand how a similar disaster would impact my tenancy. I just signed a one-year lease. What would happen to the lease if some disaster destroyed my apartment building and what about compensation for my property inside the unit?

A If a fire, flood or earthquake destroys the premises that you rent, your rental obligation ends, despite the existence of an un-expired lease. You would be entitled to have your full security deposit refunded, as long as the fire or other event was not caused by your negligence. The landlord would not owe you any further compensation such as relocation expenses or reimbursement for your lost personal belongings.

The only exception would be if the event was caused by, or magnified by some negligence on the part of the landlord, or by the landlord's serious violation of a building code requirement. An example would be if inadequate electrical wiring caused the fire. One possible alternative for protecting your property would be to obtain renter's insurance, but you would need to be very careful to determine whether some natural disasters such as earthquakes or floods are excluded from protection.

Q Unfortunately, I have been the victim of domestic violence at the hands of my husband. We live in an apartment under a one-year lease. One of the reasons I am afraid to take action is that if he is removed from the unit, or if I leave, I will still be responsible for the rent payment, which I cannot afford on my own. Do I have a right to break the lease because I am a victim of domestic violence?

A There is no statute that specifically allows a lease to be broken in your situation. However, you could argue that your husband's actions constitute criminal activity, which could cancel the lease. Also, you could argue that his conduct, whether he is removed or you leave, makes it impossible for you to fulfill the lease.

The law recognizes the doctrine of "impossibility" as grounds to void a contractual obligation. In light of your situation, your landlord may be willing to resolve the matter of the lease obligation either with you directly or through your local housing mediation program. If you obtain a restraining order, you might consider providing a copy to the landlord to encourage him to be more accommodating.

Q I recently bought a house and remodeled the rooms into individual, one-bedroom rental units. Since it is located in a residential neighborhood, I don't want to disturb the neighbors with too much noise. Therefore, I want to rent to single individuals only. Is it legal for me to do so?

A No, you cannot rent to single tenants only. Under California state guidelines, a reasonable occupancy limit is considered to be two times the number of bedrooms, plus one additional person for the rental as a whole. Under this formula, a one-bedroom unit would fit three people, a two-bedroom unit would fit five people, and so forth. Any limits more restrictive than this may be considered discriminatory, due to the disparate impact they have on families with children.

However, Section 503(b) of the Uniform Housing Code states that any room used for sleeping for two people must be at least 70 square feet, and must increase the minimum floor area by 50 square feet for each additional person. Moreover, every residential unit must have at least one room that is at least 120 square feet. Therefore, if the bedrooms or overall units are especially small, you may be able to limit the occupancy to two people.

Restricting the units to single occupancy, however, will always be seen as overly restrictive because of the more negative impact on families with children. As such, you should also avoid any statements or advertising that discourage families with children who are seeking housing.

Q I specifically rented a house that has a side door entrance near the garage and driveway because I am disabled and need to avoid long walks and stairs. The property owner has given me a notice stating that I can no longer use the side door as an entrance or front door. What are my rights?

A You should notify your property owner of your disability and ask for what is known as a "reasonable accommodation." Federal and state fair housing laws prohibit discrimination based on disability, and discrimination against persons with disabilities is specifically defined to include "a refusal to make reasonable accommodations in rules, practices or services when such accommodations may be necessary to afford such persons equal opportunity to use and enjoy a dwelling."

Based on the needs of your specific disability and absent a legitimate compelling reason supporting the landlord's position, your property owner should make an exception to his or her policy of not allowing tenants to use the side door.

If your property owner denies your request, or if you need assistance in making the request, you may contact Project Sentinel at 888-FAIR-HOUSING or your local fair housing agency.

Q My parents recently arrived from India for a six-month stay. My mother is doing the cooking now and is preparing native Indian dishes for my family. I received a notice from the apartment manager that my neighbors have complained about the odors and I need to stop cooking this type of food. Is this notice valid? Can the manager make my mother stop cooking?

A No, the manager cannot dictate what food is cooked in your house, particularly if the manager prohibits certain cuisines based on national origin. California and federal fair housing laws prohibit discrimination on the basis of national origin. This means that housing providers and managers cannot set different terms or conditions for tenants on the basis of where they come from or their ancestry. Telling your family not to cook Indian food is an example of discrimination based on your national origin.

Less obvious examples might include steering Indian families to less desirable units due to cooking odors, which we have also seen in our office. The notice, therefore, is not valid. However, it would not be unreasonable for the manager to relay any complaints received about the odors, so long as the goal is to improve neighborly relations.

If you have experienced this type of discrimination, please call Project Sentinel at 888-FAIR-HOUSING or your local fair housing agency. Fair housing agencies can help you pursue discrimination complaints and resolve disputes while minimizing the chance of retaliation.

Q I'm very good friends with the resident manager of the complex I live in. Recently we were discussing the "pre-departure inspection" law that went into effect January 2004. She says the tenant must ask for the inspection and I said the landlord or the agent has to offer the inspection. Who is correct?

A The short answer is that you are correct and here's why. Civil Code § 1950.5 states that once a landlord or his or her agent becomes aware that a tenant is moving, the landlord or agent "shall notify the tenant in writing of his or her option to request an initial inspection and of his or her right to be present at the inspection." This inspection is to be no earlier than two weeks before the tenant's last day.

Civil Code 1950.5 continues to state the inspection date must be scheduled at the convenience of all parties, the landlord must give a 48-hour written notice confirming the appointment, and the tenant should be given an itemized statement specifying repairs or cleaning that may affect deductions from the tenant's security deposit. By receiving the itemized statement, a tenant then has the option of either performing the repairs or cleaning or not. The only exceptions are hidden damage, such as stains under furniture, or damage caused during the subsequent move-out.

It is good practice for both parties to conduct a second walk-through inspection after move-out to document if any of these exceptions exist. At the same time, both parties should take still photographs of the entire unit to document the overall level of repair and cleanliness.

Q I manage a large apartment building. About 10 families in the building want to join the citywide garage sale and hold their own sale in the common area of the complex. The property owner says no because she feels there are safety issues. The tenants disagree. They say "if the city allows garage sales, why can't they have one?"

A Even though your city allows residents to conduct public garage sales, your property owner is not obligated to allow a similar activity on his private property. Perhaps you could help the tenants put together a plan that would eliminate any safety or health concerns the property owner may have. Your local mediation program is an ideal resource to work out these concerns.

If this is not successful, the tenants could contact the organizer of the city garage sale to get names of private property neighbors who may agree to let them join them. Also, nearby churches may be willing to lend their parking lot to you -- perhaps for a donation from the sale proceeds.

Martin Eichner edits RentWatch for Project Sentinel, an organization founded in 1974 that provides landlord tenant dispute resolution and fair housing services in Northern California and administers rental-housing mediation programs in Palo Alto and Mountain View. Call (650) 856-4062 for dispute resolution or (650) 321-6291 for fair housing.