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Bank Was Robbed; Where's His Check?


QUESTION: I live in Mission Viejo and I have a problem. Last August I paid my monthly rent of $730. The rent check usually clears the bank within five days. This time, however, a week went by and it still did not clear the bank.

I went to the management office to find out what was going on. Apparently, the bank to which they made the deposit was robbed.

I offered to write another check for the August rent, but a representative of the company told me that as far as the management company was concerned the rent was paid. She said that she was not supposed to say that and not to spread it around.

I didn't hear anything else until December when the management company's bank called and told me that I needed to write a replacement check for the August rent. The bank representative said that it had been notified previously in writing but I had not.

I told the bank representative that as far as I am concerned the rent is paid and I would check into it with my attorneys. I am on active duty in the U.S. Marine Corps, stationed at the El Toro air station. The bank says it's not their fault that they got robbed.

I say that I have paid the rent. The bank says I owe a month's rent. They have even offered payment plans. Who is right? Do I owe the rent or not?

ANSWER: In the last edition of Apartment Life we said that "Legally (rent) payment connotes both delivery of a negotiable instrument . . . and its negotiation." You may get the credit for finding the exception to this rule.

If the property management company is saying that your August rent is paid, you may have no further obligation for it.

Of course, if the property management company gives you a notice about the August rent, you will likely have to pay it. Before you do that, make sure again that your previous check has not been negotiated and immediately stop payment on it.

Since you have no agreement, or relationship, with the bank, it would seem that you are not required to write it a replacement check, barring a notice from the property management company or a court order.

At its option, the bank could debit its customers' account, the management company, and trigger a request for repayment by you. It is probably trying to avoid the potential negative public relations ramifications of such an action, however.

In another vein, the bank was very likely insured for the loss that resulted from the robbery and the insurance company could be trying to mitigate its costs.

Whether or not you ultimately have to pay the August rent really just depends on how far the management company, bank and/or insurance company want to push the issue. If push comes to shove, you will have to pay the rent.

Water Heater May Be a Health Problem

Q: I live in a rent-controlled apartment in Santa Monica that has been plagued by problems with its water heater. I understand that problems come up from time to time, but the hot water in our apartment complex has been turned off several times over the past few months.

We never get notification of when the hot water is going to be turned off. Is the landlord required to notify the tenants in advance if it is going to be turned off for repairs? If yes, how much?

Recently, because of a faulty part, the water heater was shut off from Friday night until Monday morning. The landlord says it is not his fault that it broke and could not be fixed until the next business day. Is he correct? If not, what recourse do tenants have?

A: State law, Civil Code Section 1942 (CC1942), allows tenants to repair some maintenance problems and deduct money from the rent to pay for the repairs if they are not fixed within a reasonable amount of time after the landlord has been notified of them either orally or in writing.

I always recommend to landlords and tenants alike that they notify each other in writing of virtually everything relating to their rentals.

CC1942 says, ". . . (b) For purposes of this section, if a tenant acts to repair and deduct after the 30th day following notice, he is presumed to have acted after a reasonable time. . . ."

The repair and deduct remedy may only be used twice during any 12-month period. It doesn't appear to apply to your situation under any circumstances, however. Even though some courts have interpreted the law to mean that "emergency" maintenance problems must be fixed within three days, you fall short of that standard because the hot water was turned off from "Friday night until Monday morning," which is half a day short of three days.

According to a Santa Monica Rent Control Board staff attorney, who declined to be identified: "The tenant has no recourse under the Santa Monica Rent Control law. It could be a health department violation so you may want to give them a call."

According to Terrence Powell, environmental health specialist for the Los Angeles County Health Services Environmental Health/Health Facilities Department, "When it's determined that no hot water is available for a particular unit, then their Santa Monica owner will be cited for repair under L.A. County Code 7583, Ordinance No. 819."

"In any other area of the county the applicable code would be Title 1, Section 11.20190. This is the exact same code with a different name."

From Santa Monica, the complaint line for L.A. County Health Services is (310) 315-4579.

Postema is the editor of Apartment Age Magazine, a publication of the Apartment Assn. of Greater Los Angeles (AAGLA), an apartment owners' service group. Mail your questions on any aspect of apartment living to Apartment Life, AAGLA, 21 S. Westmoreland Ave., Los Angeles, Calif. 90005-3995.

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