Palo Alto Weekly

Real Estate - March 30, 2012

RentWatch

Can ex-wife keep husband from moving back into rental unit?

by edited Martin Eichner

Q My sister and her husband recently decided to split up their marriage. He moved out of the apartment, which they had rented under a one-year lease, and filed a divorce case. However, a few months later, he told my sister he couldn't afford his new place. He said that he was planning to move back into the apartment where she was still living.

My sister doesn't want him back. Can she stop him?

A If both husband and wife were parties to the rental agreement for the apartment where they had lived together, they both remain legally responsible for the agreement. The husband remains legally liable for the rental obligations under the lease whether he physically moved out or not, unless the lease was amended to remove him.

Since he is financially responsible for the lease, under tenant-landlord rules, he should be able to enjoy its benefits, which includes the right to live there. There is no easy remedy available for your sister under tenant-landlord law, assuming your brother-in-law is unwilling to voluntarily amend the lease to remove himself as a party.

Even if he was willing to be deleted from the lease, perhaps to end his financial responsibility, the landlord would also have to agree to amend.

Your sister may have a better remedy under family law. In the family-law court, she could request a restraining order or other appropriate order in the divorce case that physically removes her husband from the apartment. The family court that hears the divorce case could also address the impact on your brother-in-law's financial liability if he is removed.

If he is threatening to return immediately, then some type of immediate order from the family court would be the fastest way to resolve the rights of both husband and wife.

Q For more than five years, I have lived in a house I rent. Throughout this whole time, I have been forced to go into my own pocket to pay for the most basic repairs, such as emergency plumber calls. I have paid for repairs myself because my landlord always takes too long to respond.

I have been very careful to keep copies of all the repair bills I paid, which total more than a month's rent. I have found a new place to live that I think is newer and in better condition. I would like to skip payment of the last month's rent in my current home as a way to make sure I am compensated for at least some of the bills I had to pay. Will I be able to do that?

A A landlord has a duty to provide habitable rental premises. As described in California Civil Code Section 1941.1, that duty includes adequate plumbing. A landlord must respond to a repair request as quickly as reasonably possible, given the specific issue. For example, an emergency water leak requires an immediate response.

If you properly notified your landlord of the need for an emergency repair and he failed to respond as quickly as possible, he violated his duty. This rule applies as long as the emergency repairs were not due to your own fault, such as flushing a tennis ball down the toilet.

You should always make requests for repairs in writing so that you can prove that you made the request. If you need to call the landlord to report an emergency, follow up with an email or other written request so you will have a record of your request.

Even if you can prove that your landlord violated his duty to provide habitable premises, you still need to pick your remedy. If you can prove that you gave proper written notice, that the landlord did not respond as quickly as possible, and that you incurred these expenses for repairs that were within the landlord's duty of habitability, you can deduct the cost from your rent up to the amount of one month's rent, once a year.

However, if you deduct, the landlord may force the issue by serving a three-day notice to pay rent or quit, which if followed with an unlawful detainer eviction case, could involve you in an expensive and risky court case. A small claims court case would be a safer alternative. If you had a written rental agreement, you can sue for damages within the last four years, so you might need to exclude bills incurred outside the four-year statute of limitations.

However, you can include your damages for the landlord's failure to make the repairs, such as time off work to wait for the plumber, and you won't need to hire an attorney.

Martin Eichner edits RentWatch for Project Sentinel, an organization founded in 1974 that provides landlord tenant dispute resolution and fair housing services in Northern California and administers rental-housing mediation programs in Palo Alto, Los Altos and Mountain View. Call 650-856-4062 for dispute resolution or 650-321-6291 for fair housing or email mediate4us@housing.org.

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