QThree months ago I had to move into a furnished rental in which the maintenance had not been finished. Despite my phone calls, the owner has yet to correct or address the deficiencies. I believe that some of these items may be health and safety issues. For example, there are roaches coming out of the mattress and box springs. The carpet smells and I can see daylight under the sink. This building is in a redevelopment area where a baseball park is being built. I am afraid that the owners do not want to spend any money maintaining the property. I have not paid my full security deposit. Since I can't afford to move, do have any recourse?

ATenants' attorney

Kellman replies:

You are entitled to a safe and habitable dwelling. This includes the furnishings supplied along with the basic structure. The roach infestation, as long as not tenant-caused, is the responsibility of the landlord. Carpet that becomes excessively worn out from age should be replaced. Older carpet may be saturated with mold, mildew or other contaminants that pose a health hazard and simply cannot be fully cleaned. Also, carpeting may become frayed and cause people to trip, or worn down enough to expose carpet nails. Generally, carpet in rentals has a useful life of five to seven years.

As far as seeing daylight under the sink, any holes in a wall or ceiling need to be promptly repaired. Being in an area close to the proposed ballpark is clearly no excuse for your landlord to violate the law.

Landlords' attorney Smith replies:

The landlord's side of this is a bit different. You've confessed to a lease violation by failing to pay the agreed security deposit. For this reason alone, you could be evicted, and it has nothing to do with the condition of the premises.

Steve Kellman, let's get realistic regarding the warranty of habitability required by many state laws. Landlords are required to provide essential services only. The landlord does not have to replace the carpet. An initial cleaning and sanitation will suffice. The landlord should spray for roaches, but you need to watch your housekeeping to avoid attracting further infestation. With the limited information on the "daylight" under the sink, I believe there is sufficient weatherproofing.

Based on this, and contrary to opposing counsel's opinions, you will need to pay both your security deposit and rent if you intend to continue living in this rental property.

Property manager Griswold replies:

The lawyers can posture all day long, but the practical response is to send the balance of your security deposit immediately so that you are in compliance with the lease and cannot be evicted.

Because you can't afford to move, you need to motivate your landlord. The full payment of the security deposit is a start, but you must send the landlord a letter outlining your concerns with a specific emphasis on the health and safety issues.

Remember that landlords do not have to take care of cosmetic issues or any problems caused by your failure to properly maintain and clean the premises or any damage you or your guests cause.

If the landlord does not respond promptly after receiving your letter, then I would suggest you contact the local code compliance department and file a complaint. The building inspection or code enforcement department will inspect your rental unit and contact the landlord regarding any code violations. The landlord will be given a short but reasonable amount of time to address any problems before there's a reinspection to ensure that the work was done properly.

In my experience, code enforcement should be able to assist you, but don't forget that your city council representative or his staff also can be very effective in getting action.

I have lived in an apartment since early 1998. My daughter is in a wheelchair, and this year I asked for a handicapped parking space and a sidewalk ramp. The on-site manager agreed, yet I still don't have the parking space or the ramp after more than nine months. Every month I seem to hear another excuse. I recently was told that the owner had to get permission for the ramp from the city where we live. I called them and that is not true since the ramp would not be on city property. I am tired of the excuses and tired of parking in the red zone to get my daughter safely in and out of my vehicle. What are my rights?

Tenants' attorney Kellman replies:

Under federal fair housing laws, your landlord must allow reasonable accommodations of the rental to people with disabilities. This includes reasonable modifications of the rental unit as may be necessary to afford a disabled person the full enjoyment of the premises.

It appears that your landlord has approved the ramp but has delayed installing one. Perhaps a reason for that delay is that you are waiting for the landlord to pay for its installation. A ramp installed specifically for your unit may be a reasonable accommodation, but the landlord may require that you pay for it. To eliminate this delay, you should consider offering, in writing, to cover that expense.

The handicapped parking space should be promptly provided because the landlord has already approved the request and because the landlord would have to pay for that particular cost if the space is a benefit to others in the common area parking lot. If the handicapped space would be purely for your benefit, you should consider offering to pay that cost also.

The landlord should act immediately on your requests because there are significant monetary damages and penalties it may have to pay if it violates these laws.

Landlords' attorney Smith replies:

Steve correctly points out that the landlord has a duty to make reasonable accommodations based on your daughter's handicap. The physically challenged tenant is allowed to be placed on a par with -- but not better than -- non-handicapped tenants.

Access to the premises and reasonable accommodations are the key. If in the common area and benefiting all tenants, then the ramp costs must be borne by the landlord. The city does not have jurisdiction in this matter.

Federal law further provides that the tenant may make reasonable modifications to the interior, but not structural changes. The law states that the tenant must pay for these modifications.

This would include a ramp exclusively for your rental unit. The landlord has the right to expect work to be done in a workmanlike fashion in accordance with applicable building codes.

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.

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