Renters' Forum

Broken Air Conditioning Is No Justification for Withholding Rent

By Robert Griswold, Steven R. Kellman and James McKinley
Saturday, September 8, 2007

Q: I live in an apartment, and my air conditioning broke down on a Saturday during the hottest weekend of the year. I called the manager, and he said he could not fix it until Monday. I think I should not have to pay rent for the three days I did not have AC. What do you think?

A: Steven Kellman, an attorney for tenants, replies: Building and housing codes require basic health and safety conditions like proper heat and plumbing, but they do not require that your apartment have air conditioning. If you have AC in your unit, it must be maintained by the landlord because that is a feature you are paying for in the rent. The landlord has a duty to fix the AC as soon as is reasonably possible.

On hot days, when AC service calls are probably at a peak, it is not uncommon to take a few days to get a unit repaired, so fixing the AC on Monday after a Saturday breakdown may be fine.

As to deducting the rent, it may cause more trouble than it is worth: You may face an eviction for doing so. You can deduct rent only for certain repairs that you made after reasonable notice to the landlord. Here, the AC has already been repaired, so your deduction would be for "demanded compensation," which is generally not allowed. You may be entitled to a break in the rent for those days, but it is better to have an agreement with the landlord than to risk your home for three days' rent.

I have tenants on a lease that has expired, and they have refused to sign a new lease. What are my rights with respect to evicting them with no lease? I am concerned that if they decide to leave, I could lose a month or two of rent trying to find a new tenant, especially if their notice comes when I am traveling.

James McKinley, an attorney for landlords, replies: Generally, when a lease expires and tenants remain in possession of the premises with the landlord's consent, a month-to-month tenancy is created. All other terms and conditions remain in effect. You retain all rights to evict your tenants. You could terminate their tenancy by giving them 30 days' notice. If your tenants do not vacate within 30 days, you could then file an unlawful-detainer (eviction) action against them. But rather than evicting your tenants, you may want to consider raising the rent. Also, during a month-to-month tenancy, if your tenants fail to pay rent, you have the right to serve a legal notice to pay rent or quit, and commence eviction proceedings if rent is not paid as required by the notice.

Tenants' attorney Kellman replies: Why are we talking about losing rent with a vacancy or evicting these tenants simply because they have not signed a renewal lease? Once the lease expires, you are still protected, and it is not necessary to sign a new lease at all; the expired lease simply converted to a month-to-month tenancy with all the same terms and conditions, except that the end date has passed and is no longer part of the agreement.

You get all the benefits of your original lease, and you now get the right to raise the rent if you feel the market supports that action. The only downside may be that now, after one year of tenancy, you have to give a 60-day notice to evict instead of a 30-day notice. But no one said these were bad tenants, only that they are a bit shy about signing a new lease. If they decide to move, you can then worry about finding new tenants, but why force them to decide to move? Some month-to-month tenants remain in their unit for many years without the necessity of renewing leases.

Keep in mind that over time, you may wish to increase the security deposit, which can be done with a simple 30-day notice changing that term in the agreement. To resolve your concerns, perhaps you should allow them to remain in possession under the current month-to-month tenancy so you can travel with less stress.

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 at rgriswold.inman@ Questions should be brief and cannot be answered individually.

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