gary@ISM780B.UUCP (09/19/85)
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This note involves a real-life landlord-tenant dispute. Due to its
complexity it is rather lengthy and contains two parts, a BACKGROUND
and a list of 10 QUESTIONS. The dispute involves a triple net lease
(tenant pays a proration of utilities, insurance and taxes) for a
live-in artist loft studio in a warehouse. The locale is L.A. Please
reply by e-mail or notes. (There may be disenting opinions so notes may
be the best forum.) Thank you very much in advance for your advice.
BACKGROUND:
On June 26, a tenant signs two copies of a month-to-month "lease
agreement" to commence on July 1, pending negotiations for a long-term
lease, and returns them to the landlord expecting both to be signed
and one of them to be returned to him. Factors involved in the
upcoming negotiations include (1) a number of building and safety code
violations; (2) a number of needed repairs which include replacing
broken glass and fixing a leak in the roof; and (3) water damage to
the tenant's possessions which occurred while the previous lease was in
effect, and for which the tenant considers the landlord responsible.
On August 16 the tenant receives a letter stating that (1) the
building had been sold and closed escrow August 9; (2) there would be
extensively remodeling; and (3) fumigation is "tentatively" scheduled to
commence on August 29 (at which point the tenant would have to vacate
the premises for two days). This letter is from the new owner/landlord
and is the first information the tenant had received about the sale.
The tenant decides to bail out and rents another place. On August 23 he
telephones the new landlord to inform him that he will be moving out by
September 1.
The tenant has not yet received back a fully executed copy of the
month-to-month agreement which he signed and sent to the previous owner.
(Having returned both originals, he has no copy.) However, the previous
lease included under "Rent" a deposit equal to one month's rent (a
Security Deposit clause indicated a sum of "$NONE"), and the tenant
increased his deposit to equal the new rent when he signed the new
month-to-month agreement. (In fact the original lease termed this
deposit "last month's rent".) Thus, he assumes that the last month's
rent is already covered by the deposit, expects it to apply to August
rent (which he had not yet paid), and so informs the new landlord.
The new landlord claims that the tenant is obligated to give 30-days
notice, and that he therefore must pay rent for September. This is
contrary to what the tenant had been told, namely, that (1) even
though it is written in the lease, the requirement for 30-days notice
is not enforceable for month-to-month rental; and (2) legally there is
no such thing as a "month-to-month lease" -- a "lease" can only apply
to a term longer than one month.
On August 24, the tenant receives a hand-delivered letter from the new
landlord which (1) says a 30-day notice must be given; (2) says the
``Security deposit ... is not a "last month's" rent and cannot be
credited as same''; and (3) confirms the fumigation date of August 29-30.
On August 26 the tenant sends the new landlord a letter reiterating his
intention to leave and disputing the 30-day's notice requirement and
deposit issues. The letter also explains his reasons for leaving,
including (1) the fact that he had not yet received his copy of the
month-to-month agreement (thus affirming that it was in effect); (2)
that he was not informed the building was being sold or in escrow when
he signed the monthly agreement; (3) the short notice for remodeling and
fumigation (less than 5 day's confirmation); and (4) the existence of
building and safety code violations.
On August 27 the tenant receives a letter from the previous owner
demanding rent for August. Enclosed is one of the original copies of
the monthly agreement which the tenant had signed; neither the previous
nor the new landlord had signed it.
On August 28 the tenant receives a certified letter from the new
landlord which is a duplicate of the one hand delivered August 24
(saying the "Security Deposit" is not "last month's rent" and confirming
that fumigation is to commence the next day).
The tenant vacates the premises on August 29 and 30 for fumigation
services. A hand-delivered letter from the new landlord is left in
the premises which threatens "inconvenience" if August rent is not
paid, and points out that the increased deposit is (now) under a clause
labeled "Security Deposit". Enclosed is a copy of the letter from the
old landlord (received August 27) and a photocopy of the month-to-month
agreement with the old landlord's signature. (Although the lease is
signed, the signature is not dated and as far as the tenant knows, it
could have been signed after he gave the new landlord notice.)
Reading the agreement carefully the tenant discovers that what began as
"last month's rent" in the original lease, and changed to "rent deposit"
in the next lease, had indeed now become a general purpose "Security
Deposit" (which includes but is not limited to rent) in this new monthly
lease agreement, reimbursable 10 days after the lease expires.
On August 31 the tenant begins to move. While he is away, a friend
who is helping him move is given a summons (intended for him) -- he is
being sued for August's rent in small claims court. (In the confusion
of the move the summons is lost.) That evening, he himself is served
with a photocopy of the summons. The landlord asks the tenant if he is
moving and implies that September's rent will be owed (not covered by
the "Security Deposit") because less than 30-day's notice was given.
Shortly thereafter the landlord begins remodeling the premises vacated
by the tenant, including tearing down the under-code loft and stairs.
(The tenant has slides of the code violations and evidence of water
damage.)
In summary, the landlord thinks that both August and September rent must
be paid, and that the "Security Deposit" minus whatever deductions will
be returned to the tenant on (or about) October 10. The tenant thinks
that the deposit in question is a "last month's rent" which applies to
August, that under the circumstances a full 30 day's notice was not
required, and that therefore nothing is owed for September.
QUESTIONS:
1. Is a lease of any sort effective and binding before both parties
receive a fully executed copy, i.e., a copy with both lessee's and
lessor's signature on it thus affirming the agreement?
2. While a building is in escrow, is it legal for the old owner to
enter a lease agreement with a prospective tenant without at least
informing the tenant that the building is being sold? E.g., is a lease
signed under such conditions binding?
3. Legally is there such a thing as a "month-to-month lease"; i.e.,
even though such an agreement is signed, is anything in it enforceable?
Two people have advised the tenant that a month-to-month rental means
that you pay for a month then you stay for a month, and that a lease
-- a contract in effect -- is irrelevant.
4. Specifically is a clause which requires 30-day's notice enforceable
in a month-to-month lease agreement? (The landlord claims that there is
even a law which requires a month's notice for monthly rentals.)
5. When a building contains numerous building and safety code
violations (e.g., loft and staircase poorly constructed and without
safety railings; electrical wiring not enclosed in conduit and stapled
along a leaking wall; sink drains connected to the same sewer pipe as
toilets but not separately vented; etc.) does the tenant have the legal
right to vacate on short notice reguardless of what a lease might say?
6. The tenant paid first and last month's rent as stipulated in his first
lease, then paid more money to "increase deposit to accomodate [sic] new
rent" under a second lease ("Security Deposit. ... $NONE ..."), and
then paid an increase to equal the new rent under a general purpose
"Security Deposit" clause in a third (month-to-month) lease. It was not
pointed out that the deposit money had been redefined between leases,
and the tenant, having failed to find another rental and signing lease
under stress "at the last minute", didn't notice the redefinition.
Can the tenant legitimately claim that the money is and always had been
understood to cover last month's rent and nothing else (i.e., that the
(old) landlord "conned" him with respect to the deposit money)?
7. How much confirmed notice must a landlord give a tenant before must
vacate the premises for fumigation services? Is 13 day's tentative and
5 day's confirmed notice adequate by law? (The lease doesn't seem to
mention such a situation specifically.)
8. During fumigation, the tenant(s) are required to vacate the premises
from 8 am one day to 6 pm the next day; the landlord offers two day's
reimbursement on the rent. Are the tenants entitled to more than this,
considering (1) the inconvenience (plants and animals must be removed and
food must be bagged); (2) the fact that hotel costs (e.g.) would be more
than two day's rent; and (3) that the premises in question are partially
used for commercial purposes resulting in potential loss of income?
9. Is a photocopy of a summons to appear in small claims court (the
"PLAINTIFF'S CLAIM AND ORDER TO DEFENDANT") binding? In other words, is
it necessary to serve the defendant the original or (pink) carbon copy
of the official summons received from the court before he must comply?
10. The small claims court summons indicates a certain sum for rent and
utilities "7/85 to 8/85". Can this be taken as meaning "July"? The sum
in question actually applies to August. Can this be argued as a technical
error that invalidates the plaintiff's claim?
Whew! Thanks again for your time and reponses.
Gary Swift, INTERACTIVE Systems Corp., Santa Monica, Ca., (213) 453 8649
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