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Suing Landlord in California for Security Deposit & Termite Infestation

This is a discussion on Suing Landlord in California for Security Deposit & Termite Infestation within the Landlord vs Tenant Issues forum, part of the REAL ESTATE & PROPERTY LAW category; California. I wish to sue my former landlord who terminated my lease after 20 years. I have not received my ...

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Old Dec 2nd, 2009, 10:06 PM   #1
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Default Suing Landlord in California for Security Deposit & Termite Infestation

California. I wish to sue my former landlord who terminated my lease after 20 years. I have not received my security deposit and I wish to sue for breach of warranty of habitability. Do I send a demand payment letter for both? How do I determine amount since the problem was termite infestation? I was not only concerned with structural safety of building but the safety of my own personal belongings (furniture, books, etc.)

Termites swarmed inside my apt. for 3 years straight (every Sept) plus there were kick-out holes in several rooms indicating they were inside interior walls. Exterminator recommended tenting, but LL would only allow spot treatment. After the third swarm I'd had enough. Shortly thereafter, LL raised rent. I refused to pay the rent increase until health dept. inspected and said building was safe. I called the health dept myself 3 times, but never rec'd a callback.

Several months later, LL insisted on inspecting apt with exterminator. Mgr. told me they discovered areas that needed to be treated and would be scheduling. Instead, I rec'd a 3-day pay or quit notice and a termination of lease notice. Upon a lawyer's advice, I paid and moved out. He told me I could sue for breach of warranty of habitability but suggested I do it in small claims court since California judges seem to favor LLs. However, I'm not sure how to pursue. Thanks for any advice you can offer.
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Old Dec 3rd, 2009, 12:07 PM   #2
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Default Re: Suing Landlord in California for Security Deposit & Termite Infestation

You lived there for 20 years, and 3 years after you first knew of terminates, and just now want to sue for uninhabitable conditions? If you lived there for 3 years after you first learned of a pest problem, you may have a hard time convincing a judge that the unit was uninhabitable. If it truly was uninhabitable, you would not have been able to live or stay in the unit for any length of time, let alone for 3 years. Further, the LL received a report of habitability from the health department (a government agency) when they inspected. You will have a very hard time proving this case when a government agency said the building was OK.

Termites are a natural pest in CA. They swarm every year. Lots of places end up having them and have to be treated. The LL took action each time they appeared and did treat the building as needed. This will also work against your case. Had the LL not treated or responded to the pests, you may have had a case. But taking such action shows that he was not neglectful of the situation.

Finally, why would the LL serve a Pay or Quit notice to you unless you failed to pay the rent? If you planned to rent withhold, did you deposit the rent as required, on the due date, with the clerk of court? If it is deposited with the clerk of court as required, the LL cannot take action such as this against you. If not, which I suspect, you illegally withheld rent. You failed to follow the rent withholding procedure as per the law. And you were properly served. This also will work against you.

I seriously doubt you could win this case. Look at the facts as they will be presented to court. You reported termites and the LL treated. You again reported them the next year and he treated. A 3rd year you reported, he treated, and you then want to claim uninhabitability. (How was this different than the previous 2 years? You had not considered the place uninhabitable then.) You withhold rent without depositing it with the clerk of court. You receive the proper notice for this. A government agency, the health department inspects and declares the building OK. (Wouldn't they have noticed an uninhabitable condition?) You pay the delinquent rent. (Why, if the place was uninhabitable?) I'm sorry, but I cannot see a case for uninhabitablility.

The deposit is another matter altogether. The LL has 21 days, after you vacate and return the keys, to get to you an itemized statement plus any deposit that is left. Has it been 21 days yet? Have you received a statement of damages? If it has been 21 days and you have not (assuming you left a forwarding address), you need to send a demand letter to the LL. Demand your deposit in a letter and make sure to give him your forwarding address. Mail this letter by certified mail, return receipt requested, and keep a copy of the letter and the postcard that comes back to you. If he fails to return it to you, file in small claims court to get the deposit and any penalties allowed by CA state law for his bad faith in keeping the deposit.
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Old Dec 3rd, 2009, 02:27 PM   #3
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Default Re: Suing Landlord in California for Security Deposit & Termite Infestation

I am in agreement with the advice offered above.

You will not win your case. Don't waste your time or your money pursuing this. A judge would make mincemeat out of you and probably throw you out of his court for not only filing a frivolous lawsuit but for wasting his/her time.
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Old Dec 3rd, 2009, 05:55 PM   #4
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Default Re: Suing Landlord in California for Security Deposit & Termite Infestation

Thank you for your responses. However, I need to clarify a few things that were apparently misunderstood. The health dept. did not respond to my requests and never came to inspect the building. After the first swarm inside a bathroom, the exterminator thought they flew in from outside since there were signs of termites on the balcony. Of course, now I know this was a ridiculous assumption. After the second swarm, a year later, a different exterminator came. He said that he thought they were coming from the roof into the ceiling fan and said he was going to the roof to check. I never heard anything else. After the third swarm (again a year later), this same exterminator came out. When I asked him what he had found in the roof the prior year, he said he'd never been up there. However, this time he went up there and discovered that's where they were and spot treated the area. I have received all the reports from his company and they all indicate that tenting of the building (plus others in the complex) was recommended over spot treating.

Was my apartment uninhabitable? Technically no. But it was unsafe and unhealthy - just as if cockroaches or rats were running about. To have to pay more to live in this condition was preposterous to me. I wrote the LL and asked him how he could justify a rent increase for a termite-infested apartment. I never received a response.

I only withheld the $25 rent increase and I did have that money in an account. When the mgr. contacted me after 3 months of not paying the rent, I told her that I would pay it when the health dept inspected and said the bldg was safe. Did they want to call them or should I? I also sent a letter to the LL stating same. Again, no response. As I said, I called the health dept 3 times and never rec'd a callback. Five months after this is when the mgr. called and said the LL wanted to come in with an exterminator to inspect my apt. I rec'd a call that more areas needed to be treated. Next thing you know my lease is terminated and I had 30 days to move. I had to hire a moving company, put my belongings in storage and live in a hotel for 6 months.

I considered staying and fighting the LL over a retaliatory eviction. (The LL/mgr. also accepted rent beyond the 30-day period as I needed more time because of problems with the mover.) However, when I contacted a lawyer, he advised me to move and then sue for breach of warranty of habitability in small claims court. It seems to me that I was within my right to withhold rent in this situation. Also, by their own admission, more areas required treatment so it still wasn't "fixed".

I certainly don't want to incur the wrath of a judge or be laughed out of court. Do you still feel that I don't have a case? Also, would you please let me know if you are a lawyer or legal professional? Thank you!
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Old Dec 3rd, 2009, 09:38 PM   #5
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Default Re: Suing Landlord in California for Security Deposit & Termite Infestation

The LL did respond to your requests and called in an exterminator. He took action each time. How thorough the exterminator is depends on his expertise, not the LL's actions. Of course an exterminator recommended an extensive course of action. He gets paid for a larger job. A painter would recommend that you repaint an entire apartment rather than spot paint. A roofer would recommend that you replace the whole roof rather than repair one area. It means more money in their pocket. The fact is that he did treat the place. That is all that was required and the exterminator did do this.

The place was not uninhabitable as you now agree. But complaining now of unsafe or unhealthy conditions is a moot idea. You no longer live there. The time to sue for this is when you live there, not after. Termites are not tantamount to vermin or roaches. No judge will think so. Termites are a fact of life in your area. They are an exceedingly common occurrence. Additionally, just because one area is repaired or fixed, this does not mean that other areas will not require repair or treatment months later. So further requests to treat 5 months after the fact have no bearing on the previous ones. The fact is that further treatments will always be needed at some future time in your area of the country.

You were properly notified of a rent increase. You do not have the option to refuse to pay a rent increase that is properly imposed because you do not agree with it. Your only option is to refuse to pay it by moving out. That is why you were given the P/Q notice. They are under no obligation to call the health department. (Why would they call them to satisfy your complaints?) If you wanted to contact them and they wanted to come inspect, that is your option. Apparently, the health department did not think that a common termite swarm justified a need to inspect. Otherwise, they would have come to the property. They saw no justification for that in your calls.

Finally, it does not sound as if you were terminated under lease. Had you signed a lease within the last 12 months? It sounds as if you were a month to month, or tenant at will, whose lease had run out long ago. If so, unless you were under rent control, the LL needed no reason of any kind to end this tenancy. All he had to do was to serve you notice telling to to move out. Where you moved or how you did so has nothing to do with the LL and you cannot sue him for that. Moving expenses are your responsibility just as preparation expenses to ready a unit (cleaning, painting, advertising, etc.) is his. And allowing you extra time to move out does not invalidate his request that you do so. It actually works in his favor to show how accommodating he was.

I'm sorry, but I cannot see a case here. Wish I could tell you differently. I've seen lots of tenants who actually had cases against their LLs. But they usually involve neglect on the LLs part by his failure to act on requests, actual vermin or disease ridden pests, or uninhabitable conditions (no heat, hot water, shut off of utilities, constructive evictions, etc.) I see none of these in your case.
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