By Robert Griswold, Steven R. Kellman and James McKinley
Saturday, January 27, 2007

Q We have been in the same rental house for the past eight years. Last Monday night, we were awakened by a strange noise in the kitchen and discovered that the kitchen was on fire.

My wife and I got our kids out first, then the dog, and everyone is okay. We also managed somehow to get the garden hoses out and fight the fire ourselves, and we put a good deal of it out before the firefighters arrived. However, there is severe damage to the house and smoke and soot damage to our belongings.

The cause of the fire, according to the fire department report, was the dishwasher. It got stuck in the dry cycle and evidently heated the wiring to the point that it started a fire behind the dishwasher. We do not have renter's insurance. Our landlord's insurance company will cover the repair of the house, but not any of our losses, including the cleaning of our belongings. We have had to secure temporary housing at a considerably higher rate than we have been paying, and our world has been turned upside down.

We have had a great relationship with our landlords over the past eight years, but we think that this fire was a result of their negligence and think they should pay for our repairs and assist with the additional cost of our temporary housing. We are not paying rent on the house at this time. We have not had any discussions with them yet; we have talked with a lawyer, but we really don't want to sue if we don't have to.

The landlords want us back after the house is rebuilt and we would like to move back in then. But we're looking at four to five months that we have to live somewhere else. What are their legal responsibilities to us?

A Property manager Robert Griswold replies:

Well, first, I am sure you now understand why you should have had renter's insurance. If you did, then you would have submitted a claim to your insurance carrier and it would have covered your losses and made you whole, providing for your alternative living expenses as well. Your insurance carrier would most likely seek reimbursement against the landlords for your losses, as the cause of the fire was not any negligence on your part.

Of course, this is all moot because you don't have a renter's insurance policy. Because you don't have renter's insurance, you should try to make a claim directly with the landlords' insurance carrier. That carrier is likely to deny your claim, as you are not its insured.

Next, you need to decide if you want to pursue legal action. You could file a small-claims action if your losses are less than the small-claims limit in your jurisdiction or if you are willing to accept partial payment of your losses.

Or you can hire a lawyer and pursue a full-blown civil action. You have already made some inquiries in this area and know that it will be expensive.

Sometimes just hiring a lawyer to send a letter indicating the facts and demonstrating that you will take further action if necessary can be enough to get the landlord's insurance company to be fair and reasonable.

Of course, the magnitude of your casualty loss in dollars and the jurisdictional limit for small claims may be the deciding factor of whether small claims (with its nominal cost and swift results) is preferable or if you need to gear up for a long and expensive battle. While you are at it, go out and buy a renter's insurance policy!

I was renting a room in a house, but I have since had to move out. I have been going through some tough times -- (anxiety and depression. The living conditions were unhealthy for me, so I am now stuck trying to find someone to sublease my room. I simply can't afford to pay rent at two homes. I was trying to find out if there is any way to break a lease in this type of situation. If not, is there a way that I can "buy out" my lease?

Property manager Griswold replies:

While it is understandable that your personal issues are serious challenges for you, they are not legal grounds to unilaterally terminate your lease. You have a business relationship with your landlord and a contractual responsibility to meet, regardless of your situation. So unless you have a legitimate basis to claim that your landlord breached your rental agreement, you must fulfill your legal obligation.

However, I would advise you to contact the landlord and see what you can work out. He may be understanding and work with you or unilaterally agree to release you from any further commitment under the lease. This would be completely voluntary by the landlord.

If that doesn't work, then you can make a financial offer to your landlord to buy out the lease, but the landlord does not have to agree. However, the landlord must make an effort to mitigate or reduce the potential loss in future rent obligations by attempting to re-rent the room to someone else.

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 Tenants Legal Center, and James McKinley, member of the Moffitt & Associates law firm, which represents landlords. E-mail your questions to Griswold atrgriswold.inman@retodayradio.com. Questions should be brief and cannot be answered individually.

2007Inman News Features Distributed by Inman News Features