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Ad Specified Nonsmoker, But Tenant Is Lighting Up

June 07, 1998|KEVIN POSTEMA | SPECIAL TO THE TIMES; Postema is the editor of Apartment Age magazine, a publication of AAGLA, an apartment owners' service group, and manager of public affairs for the California Apartment Law Information Foundation, which disseminates information about landlord/tenant law to renters and owners in California

QUESTION: I own a duplex in Silver Lake. I recently advertised for a nonsmoker for the lower unit. The girl who rented the apartment claimed that, because she was using "the patch," she hadn't smoked in three months and was a nonsmoker.

Shortly after moving in, though, she started smoking heavily. We live above her and now, at my request, she only smokes outside the unit. Even then it still really bothers us.

We have a month-to-month rental agreement with her but it contains no reference to smoking. I did make it clear in the ads that I do not rent to smokers. Can I now give her a few months' notice to quit smoking or leave?

ANSWER: You can give the tenant a 30-day notice to change the terms of the tenancy that prohibits smoking in or on the property.

It usually is better, as you suggest in your letter, to give her "a few months" to make other living arrangements if she can't or won't quit smoking at the property, particularly since vacancy rates are relatively low. That way the tenant has plenty of time to do something so it should not be a problem for her, and happy tenants are always the best tenants.

Unfortunately, no matter how nice you may try to be, there are always a few people who don't respond to anything, except court orders.

If the tenant still won't cooperate after the notice of change of terms of tenancy expires (i.e., she keeps smoking and won't move), you will have to give her a three-day notice to abide by the rental agreement, which now includes the no-smoking provision, or move out.

If that doesn't work, you will have to evict the tenant from the duplex. For that, you should get a lawyer who specializes in landlord/tenant law.

Repair Costs May Be Deducted From Rent

Q: After moving into a Los Angeles apartment earlier this year, I discovered 10 items needing repair. The owner refuses to fix anything, claiming that I rented the unit "as is," which is not true. The lease says nothing about "as is." Can I make the repairs and deduct the money from the rent?

A: Here's how it is, regardless of any lease or rental agreement language about "as is":

Under California Civil Code section 1941.1, all residential rental units in the state must contain all of the following features:

(a) Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.

(b) Plumbing or gas facilities which conformed to applicable law in effect at the time of installation, maintained in good working order.

(c) A water supply approved under applicable law, which is under the control of the tenant, capable of producing hot and cold running water, or a system under the control of the landlord, which produces hot and cold running water furnished to appropriate fixtures, and connected to a sewage disposal system approved under applicable law.

(d) Heating facilities which conformed with applicable law at the time of installation, maintained in good working order.

(e) Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order.

(f) Building, grounds and appurtenances at the time of the commencement of the lease or rental agreement in every part clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, and all areas under control of the landlord kept in every part clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin.

(g) An adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the time of the commencement of the lease or rental agreement, with the landlord providing appropriate serviceable receptacles thereafter, and being responsible for the clean condition and good repair of such receptacles under his control.

(h) Floors, stairways and railings maintained in good repair.

If your apartment is not habitable according to the code, there is a provision of the code, Section 1942, which allows you to repair the damages in your apartment and deduct up to one month's rent for the cost of repairs.

The code requires you to give the landlord a 30-day notice (I always recommend a written notice) of your intention to repair and deduct. You can only do this twice in any 12-month period.

If you use the repair-and-deduct remedy to solve your problems, do so very carefully. For instance, if you make a repair that is considered aesthetic and not a habitability issue, you could be given a 3-Day Notice to Pay (the rent) or leave. Failure to comply with it could result in your eviction.

Also, even though you are well within your rights to use this remedy, it will, invariably, anger your landlord and probably cause what may already be frayed relations to deteriorate even further.

*

Postema is the editor of Apartment Age magazine, a publication of AAGLA, an apartment owners' service group, and manager of public affairs for the California Apartment Law Information Foundation, which disseminates information about landlord/tenant law to renters and owners in California. Mail your questions on any aspect of apartment living to AAGLA, 12012 Wilshire Blvd., Los Angeles, CA 90025.

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