QMy son, his pregnant wife and their toddler have rented for 11/2 years. The carpet in their rental home is more than 20 years old and has caused medical problems for the toddler. They have a doctor's statement and sent this to the landlord management firm with their rent check and a request that the carpet be replaced.

The apartment manager indicated that the landlord would replace the carpet but would raise the rent $40 a month. My son told her they could not afford this amount but would compromise and pay $20 a month more. The manager came back with $25 and asked for another year's lease.

My son and his family are hoping to relocate and do not want to sign a lease, but they do want the carpet replaced because of health reasons. My son and his wife have improved the condition of the rental property, making it much more attractive. Therefore, when they do leave, the manager will be able to get more rent from this property. What are their legal rights? Do they have to pay the increase in rent if the carpet is replaced? Do they have to sign a year's lease?

ALandlords' attorney

Smith replies:

Landlords in most states are required to make rental property habitable. The perfect, aesthetically pleasing rental is not required; essential services and minimum living conditions will suffice.

In my opinion, the carpet, even though old, more than satisfies the minimum habitability requirement. Its condition poses no risk to safety. The health claims arising out of the carpet condition are a separate issue.

You must pay rent if you intend to live there. The $25 rental increase is modest and reasonable, especially in the strong rental market in most areas of the country. Your landlord has the right to ask you to sign a new lease. There is nothing illegal about this request. If you intend to remain in possession, you'll have to come to terms with your landlord; otherwise, you'll have to vacate the premises.

You may have a separate action for medical expenses based on the problems from the carpet, but old carpet does not, by itself, render the rental uninhabitable.

Tenants' attorney Kellman replies:

While carpet is not legally required, if it is supplied in the rental, it must be properly maintained. The average carpet used in rentals has a life of seven to 10 years. After that period is up, the carpet is fully depreciated and may be of no real value. Old, worn carpets can cause many health problems and can definitely affect the habitability of a rental.

Carpets can become embedded with dirt, mold, mildew or other contaminants such that they can no longer be effectively cleaned. They can become so worn that they pose a danger from exposed carpet nails and they can be so frayed that they are a trip-and-fall hazard. Once the carpet poses a problem for health and safety, it should promptly be replaced at the sole expense of the landlord with no conditions attached such as signing a new lease or raising the rent.

Keep in mind that in most areas of the country, a landlord can generally raise the rent without a specific reason. (That may not be true in areas with rent control.)

Any medical problems caused by a defective carpet, which should have been replaced years ago, may be the subject of a claim for damages, including the refund of some rent paid for a substandard dwelling.

I am a tenant under a long-term lease. The refrigerator that was included in the rental of the house broke down two weeks ago, spoiling more than $100 worth of food. I notified my landlords and was told that the fridge was left as a convenience to me, and when it broke down, it was my responsibility to buy a new one.

There is no written disclosure of this in my rental agreement; it is not specifically addressed one way or the other. The landlords have refused to replace the refrigerator. I have been without it for two weeks now.

Tenants' attorney Kellman replies:

The refrigerator is part of the rental, just like a garbage disposal or doorbell. While the law does not require your landlords to provide you with a refrigerator (or a garbage disposal or doorbell), if one is provided, it must be maintained in good working order.

Your landlords are simply trying to escape that responsibility by calling the refrigerator a convenience, which, of course, becomes really inconvenient when it breaks down. It is especially inconvenient when your landlord surprises you by inventing a new rule that the refrigerator is now your responsibility.

Simply stated, your landlords are wrong. Unless otherwise agreed upon in your lease, the maintenance of all appliances in your rental is the responsibility of your landlords. While some food loss may be unavoidable, your landlords should reimburse you for the losses that could have been avoided if they had acted promptly and responsibly. They should also provide you with a repaired or replaced, working refrigerator. If they will not cooperate in this matter, maybe they need to cool down in front of a small-claims judge.

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 news@inman.com or rgriswold.inman@retodayradio.com. Questions should be brief and cannot be answered individually.

{copy} 2002 Inman News Features

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