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  1. #1
    Join Date
    Jun 2009
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    2

    Default Landlord Wants a Year of Back Rent

    My question involves an eviction in the state of: California

    12 years ago, tenant rented unit from landlord (owners/managers) in rent controlled Los Angeles.

    They did not disclose that the unit they rented was legally uninhabitable -- that the former tenant moved because the roof leaked - a lot.

    The landlord had "cosmetically" repaired the unit so it showed no signs of significant damage other than it was old and had plaster patches, typical in similar old buildings in Los Angeles.

    There was never a written rental agreement -- the tenant paid six months rent and moved in establishing an oral agreement.

    The first year of tenancy, a couple of small leaks sprouted. Landlord had her friend come in and patch cracks -- this actually worked -- for a while.

    A few more leaks sprouted but rain season had ended. Tenant had notified landlord and was told problem was fixed.

    Next year of tenancy, leaks got worse. Tenant notified landlord (verbally) and was told they were fixing problem.

    Third year of tenancy, leaks were significant -- creating an uninhabitable situation. Tenant again notified landlord verbally and was told they were fixing problem but it got worse.

    Tenant then noted to landlord that this was unacceptable -- the landlord told tenant he should move.

    Tenant noted that the landlord had a legal responsibility to fix the roof and again, the landlord suggested he move.

    Tenant stopped paying rent.

    Landlord requested payment but tenant noted the condition of the unit was legally uninhabitable.

    The unit continued to progressively get worse year after year and tenant continued to live in unit but still wasn't paying rent.

    This continued for nine years.

    About 3 years ago, the owners were cited by LAHD for the roof and were required to bring it into compliance.

    The roof finally stopped leaking (but only this year). However, there was, and still is, significant damage in the unit from the water (mold, large holes in ceiling, cracked plaster) along with other problems such as broken toilet, moldy backsplash in bathroom, etc.

    The owners (a family) had died off over the years and now there was one sole owner left.

    She came to my friend's unit when the building was being re-roofed, banged on his door and demanded he pay an amount of rent that was above the original rent he paid when he first rented the unit several years earlier. He said no and would not sign an agreement.

    The owner later came back with another agreement with a different rent amount and the tenant still would not sign it based on the still existing problems in the unit.

    The landlord continued to dog the tenant for rent - but the tenant refused to pay based on the grounds that the property was still legally uninhabitable.

    The owner then served a 3 day pay or quit notice with a year's worth of rent but she did not follow up with an Unlawful Detainer

    Two more years go by and tenant still has same arrangement -- doesn't pay rent.

    About a week ago, the owner served the tenant with a 3 day pay or quit notice and followed up today with an Unlawful Detainer, both claiming the tenant owes a year's worth of back rent, different amounts than the 3 day pay or quit served two years ago.

    The tenant asked the landlord for a copy of his rental agreement and she noted she didn't have one because he refused to sign it. .

    We're curious about the 9 years that have passed in which the rent was "renegotiated" to where he has had to pay nothing (or what ever amt he felt like) and the fact that the owners never contested this until now and doesn't have a signed agreement showing any amount of rent.

    If the owner(s) accepted these terms by the fact that they've never moved to seek an eviction during the past 9 years, what legal standing does she have to evict him now for non-payment of rent if this 'implied consent" agreement has been in place for nine years?

    Do the nine years of the owner(s) "agreeing" to the terms of non-payment constitute an implied consent agreement that is binding?

    And how can she file the 3 day pay or quit and Unlawful Detainer and ask for a year's worth of rent based on the original rent (when the unit was supposedly "habitable" when first rented) if for the past nine years, they've accepted / agreed to non-payment of rent and there is no signed rent agreement that says otherwise?

    The unit is still legally uninhabitable (along with many other code violations in the building).

    Who is right in this case?

    The tenant whose renegotiated agreement to not have ot pay rent constitutes an "implied consent" agreement because owners did nothing for nine years and let it stand?

    Or the landlord's recent demand for the tenant (with no signed agreement) to pay rent and back rent for a year based on a figure that goes back 8-9 years or more that was only in play for maybe 3-4 years at most during which time the unit became uninhabitable and they refused to fix it?

    Does the implied consent agreement of non-payment for rent for the past nine years supersede the first agreement when tenant was paying rent for what he thought was a habitable unit and which the landlord is now trying to reinstate as the current rent despite having no signed agreement?

    Looking forward to your thoughts, opinions, etc.

    Thank you.

  2. #2
    Join Date
    Mar 2008
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    1,995

    Default Re: Implied Consent Agt / California

    I don't have time right now to dig up Los Angeles landlord tenant laws for all the circumstances you mentioned.

    There's two issues here. One is the "habitability of the unit" which the tenant is entitled to. The other is the rent that the landlord is entitled to.

    Taken to the extreme, tenants can define "habitability" to the extent that no rent is ever due. Say the landord fixed the roof, the tenant can next say "the range is not working right, I'll pay rent as soon as a new range is delivered" and so on.

    To avoid the appearance of coming up with excuses and never having to pay any rent, in this case, for nine years, most jurisdictions have laws that allow tenants to pay the rent into escrow, and then tell the landlord the money will then be paid from escrow as soon as things are fixed.

    Now you have a situation where no rent is paid based on the tenants say so that the place is "uninhabitable". You can take all the pictures you want of mole, ceilings falling down, but someone can easily point out that if the place is so intolerable, then, why stay there all these years.

    As attornies also serve as escrow agents, I suggest you find one right away, start paying some rent into escrow, and then take up the issue of all the rent not paid for all these years.

  3. #3
    Join Date
    Jun 2009
    Posts
    2

    Default Re: Implied Consent Agt / California

    If the rent was renegotiated, by implied consent, tenant doesn't pay rent and landlord accepted this agreement for 9 or more years, how is that not binding?

  4. #4
    Join Date
    Mar 2008
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    1,995

    Default Re: Implied Consent Agt / California

    I don't know the whole story with your landlords, and you mentioned that the ones that made the deal with you had passed on.

    We have rent control here where I am in NY, and our family owned properties in San Francisco as well, with rent control. I had a friend whose family had some rent control tenants, who also paid no rent.

    Finally, the parents passed away, the kids inherited the place, and was told the agreement was, the tenants pays no rent. Except for the topsy turvy world of rent control no one on this planet can look at you straight in the face and say "too bad, you pay the taxes, you pay the maintenance, you pay for heat, and I don't have to pay any rent at all".

    First, there is NO time duration agreed to for the "so called" rent holiday, so even if the previous landlord waived the rent, there is no agreement with the current landlord or management to waive the rent. I know from the landlording business that some rent control tenants are so obnoxious that landlords rather NOT collect rent at all, or it is so pitally small that's not even worth the bother, so this is not news to me.

    Actually I like to see what argument someone can make to a judge that says the "I got a deal to live rent free for life, and you have to uphold it", and hear what a judge would have to say about it.

  5. #5
    Join Date
    May 2009
    Posts
    12

    Default Re: Implied Consent Agt / California

    How long has your friend been living at the residence? When did his lease start? How long has he been living there without paying the rent (a full 9 years)? Did he sublease or assume the prior tenants' lease? Without providing specific dates, it's difficult to ascertain who has rights and who doesn't, but with this information you could get a clearer idea of what your friend's legal options are.

    I think that what you're looking at right here is what is legally known as a "constructive eviction." Although the premises are uninhabitable and the owners may have breached a duty of care to provide habitable premises, it sounds like the tenants have waived their right by continuing to live there for the last 9 years. But if your friend started his own new lease, whether he had waived this right would depend on how long he had been living there and withholding rent.

    Statement of the law: If the landlord does an act or fails to provide some service that he has a legal duty to provide, & thereby makes the property uninhabitable, the tenant may terminate the lease and may also seek damages. The following conditions must be met:

    1. The acts that cause the injury must be by the landlord or by persons acting for her.
    2. The resulting conditions must be very bad, so that the court can conclude that the premises are uninhabitable. Typical examples: flooding, absence of heat in winter, etc.
    3. The tenant MUST MOVE OUT, thereby showing that the premises were uninhabitable. If he doesn't vacate WITHIN A REASONABLE TIME, HE HAS WAIVED THE RIGHT TO DO SO.

    However, another legal standard may be at play here called the "implied warranty of habitability," which is generally tenant-favorable. The standard applied to determine if it's uninhabitable is by looking at your local housing code, or the court asking whether the conditions are "reasonably suited for human residence." Since you yourself admit the premises are uninhabitable and refer to housing code violations, it's likely that this has been breached.

    The tenant's 4 remedies at law, are to either:
    1. move out & terminate lease (see constructive eviction above);
    2. make repairs directly & offset the cost against future rent obligations (which they haven't done because you said she hasn't been paying the rent);
    3. reduce or abate rent to an amount equal to the fair rental value in view of the defects of the property (again not applicable becuase you said she has't been paying the rent); or
    4. remain in possession, pay full rent, and seek damages against the landlord.

    Because your friend has failed to follow either of those 4 legal remedies, it's likely that he is considered to be a "holdover tenant," a.k.a. a tenant who continues in possession AFTER the termination of his right to possesion. The landlord has 2 options against him:

    1. EVICTION. The landlord may treat the hold-over tenant as a trespasser and evict him under an unlawful detainer statute. This is what it seems like the landlord has done to your friend.
    2. CREATE A PERIODIC TENANCY. The landlord may at her sole discretion bind the tenant to a new periodic tenancy.

    NOTE: If the landlord uses force or self-help to remove a holdover tenant, or does things like changing the locks and locking out the tenant, it is prohibited by the state. Landlords MUST go through the court process, via eviction or whatever.

    You had best have your friend consult a lawyer ASAP.

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