How Do I Get My Landlord To Pay For Property Damage They Caused?

Dave’s here to answer your questions every Wednesday, so send them to him at tenant@sfappeal.com

The neighbor below me had the ex-apartment manager work on her radiator and he didn’t put the parts back together correctly. He still works for the management company. She turns it on, and leaves for the day. The pipe to the radiator wasn’t sealed correctly, so steam filled the apartment for more than 8 hours, saturating the walls and ceiling, causing the kitchen linoleum to peel, and when the fire alarm finally went off as the front door was opened, the hallway filled with so much steam, it was raining.

They scraped some paint, put down some tile and want her to move back in. She’s terrified that that the lead at 380 ppm (she had the radiator water tested) means it’s going to outgas lead and who knows what else, and mold is growing, and the landlord has done nothing for her; she’s living at her office. This happened January 7th, 2010 and she’s faithfully paid her rent. DBI says the work done so far is substandard and not enough.

What should my neighbor be doing to get paid back for all of her things, and get moved into a different unit? She doesn’t want to move back in to the old place, it’ll take too long for them to really do the right kind of repairs, and now she’s scared of the place. In part, because she saw the men scraping away at the bubbled paint, and realized none of the lead safety procedures for repairs were being followed. I should tell you this is a person takes immaculate care for her place, pristine custom white carpets and padding, that sort of thing. Thanks, the upstairs neighbor, wondering about his lead exposure….

This happens more than one might think. I have represented two clients with similar fact patterns. In one case the repairman forgot to install the safety valve on the radiator. My client was gone for the weekend and the apartment got a steam bath for two days! Yikes, the photos were frightening…sheets of paint hanging from the walls and ceilings; floorboards popping up; electronic equipment dripping water.

In his case, he was able to make and settle a claim with the landlord’s insurance company. Unfortunately, your case might not be as easy: I am currently working on a similar case. It took the DBI housing inspector a week to find out where he even needed to send the notice of violation. But whoever and wherever they are, they’re still liable for you neighbor’s damages if they made the defective repair.

Notwithstanding the difficulty dealing with the landlord, I’m still perplexed that your neighbor “faithfully paid her rent” for three months, while, if you are correct, there were substantial uncorrected violations cited by DBI.

Civil Code 1942.4 essentially provides that a landlord may not demand rent or collect rent if, 1) the unit is substantially uninhabitable; 2) a notice of violation has been issued; 3) the conditions have not been abated for 35 days beyond the service of the notice; and 4) the tenant did not cause the defective conditions.

Now, am I telling your neighbor to stop paying her rent? No. But could she have legal justification to do so? Yes. You neighbor should seek the advice of a tenant lawyer or a knowledgable tenant counselor immediately. She should go to the San Francisco Tenants Union.

Given the facts as you have stated them, it is clear that the landlord should, at least, pay for any damaged personal belongings and any expenses she incurred staying away from the premises.

We all know that lead in the environment is especially harmful to children. If you have children and the landlord wants to repair this type of damage in the unit, you should immediately call the Childhood Lead Prevention Program of the San Francisco Department of Public Health. If they write a violation they require that it is abated by a licensed lead removal specialist. Those guys wear HAZMAT suits!

Lead is also harmful to adults. The only way to determine if the “offgassing” is harmful would be to test the unit thoroughly. I tend to think that you are not in danger, but it would be interest to test other areas of the building to rule that out.

The bottom line is that your neighbor must become more proactive. She must develop a strategy to deal with this that may include terminating her lease and suing for constructive eviction. She will likely have to sue for damages anyway. Sure, it may be difficult to collect, but caving into fear, or inaction and faithfully paying the rent affirms a landlord’s belief that they are above the law.

Crow & Rose's legal practice emphasizes eviction defense, wrongful eviction and other landlord tenant and real property matters.

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