Inspection Would Have Kept Gutter From Being Landlord's Problem

Q: I own a single-family house that I am renting. Last week, when I was at the rental to perform some requested maintenance, the tenant mentioned that water was overflowing from the roof onto the front porch. This is "the same problem as last year," was the tenant's comment. This is the first time that she had bothered to mention this to me.

When I arrived at the property, the gutter was plugged and water had been running over the side of the flat roof onto the front porch. This excessive water had caused dry rot to form on the corner of the roof where the downspout is, so obviously the problem had existed for some time. Also, the water has damaged the front door. Who is responsible for maintaining the downspouts, the tenant or the landlord?

A: Property manager Griswold replies:

Unless there is a specific written agreement, the landlord would generally be responsible for maintaining building systems such as gutters. This does not mean that the tenant does not have any responsibility to make sure that the gutters are clean or to notify you if they are not, but ultimately the landlord is the one who needs to make sure the gutters and other aspects of the building are periodically inspected. You also do not really have any viable recourse for the tenant's failure to notify you of the problem last year. This is why it is important to reach a mutual written agreement incorporated into your lease that provides you the right to access the property, interior and exterior, on at least an annual basis to inspect and repair it. This is a win-win for the landlord and tenant but often overlooked. That results in tenants who suffer from a poorly maintained property and landlords who end up paying much more down the road to make repairs upon tenant turnover.

Recently I made an oral agreement with my landlord to buy the house I have been renting for more than eight years. We agreed on the purchase price and that I would pay the closing costs while he would address some cosmetic issues at the house. He agreed to fix the roof that has leaked for more than five years and take care of any work that may be needed to get a clear termite report.

 As part of the agreement, I needed to acquire credit approval, which I immediately did. He needed to complete the lot split, or division of the property, as there are two houses on one lot. He told me he would have it done in 90 days. I fixed all the windows, which were in terrible shape from neglect. I also sanded and painted the awnings to help get a clear appraisal and unconditional loan approval by the lender.

Then a few months ago, my landlord approached me about adjusting the proposed boundaries of our properties by taking four feet, or about 220 square feet, from the back of my property to add to his property. We compromised and agreed on half of his request, or about 110 square feet, and that the purchase price would remain the same.

I thought everything was settled until he called to tell me he is backing out of our agreement. He said that he thinks that with the lot split, the property is worth twice as much as he originally thought and that he essentially wants to cut me out of the deal. Do I have any legal recourse? Can I make him hold to our oral agreement? Is there anything I can do?

Property manager Griswold replies:

You need to contact a lawyer who specializes in real estate transactions. As a real estate professional, I can tell you that an oral agreement for the transfer of real estate is not valid. Clearly, you and your landlord made a big mistake by failing to put your agreement to buy the property in writing.

If you do not have a lawyer, then I recommend you contact your local bar association referral hotline, which is listed in most phone directories. It is highly likely that the owner will prevail in your situation, unless you get a lawyer immediately to begin protecting your rights. I wouldn't scrimp on the cost of a competent lawyer who has extensive experience specifically in these types of real estate transactions. Not all lawyers have such experience.

Remember that it will be your burden of proof and your landlord will steamroll right over you unless you get a good legal adviser to help you.

You also may be able to seek additional damages for the property improvements you made in anticipation of purchasing a portion of the property. So be sure you immediately document and put the owner on notice for the work you did in preparing the property for the appraisal. You should ask your lawyer about any rights you may have to place a lien on the property for your labor and materials.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold and San Diego lawyers Steven R. Kellman, director of the Tenant's Legal Center, and Ted Smith, principal in a firm representing landlords. E-mail your questions to Griswold at rgriswold.inman@retodayradio.com. Questions should be brief and cannot be answered individually.

© 2006 Inman News Features