QI am unhappy with my new apartment. There are things about the apartment that I didn't know. For example, I work late on the weekends and I am awakened to people doing laundry at 7 a.m. I was unaware that my bedroom was above the laundry room. There are many other things I am unhappy about. Is there any way I can get out of my one-year lease because of these things?

ALandlord's attorney

Smith replies:

As the landlord's attorney, I do not see facts here that would justify getting out of your one-year lease. The landlord's covenant of quiet enjoyment does not extend to providing a perfectly sound-free environment. The noises you refer to -- walking, normal talking and moderate sounds from the laundry room -- are inherent in multi-unit apartment housing.

I note that you are the one with the unusual hours. The other tenants seem to work normal hours. Use of the laundry room at 7 a.m. is reasonable.

The law requires substantial, even unbearable noise or very significant deficiencies in the rental unit to constitute a violation of the quiet enjoyment covenant or implied warranty of habitability. You are falling short of these requirements. That means there is no justification for breaking the lease.

Try to work it out with the apartment manager. From a customer-service standpoint, he might agree to move you to another location in the complex, but he is not legally required to do so.

I am a landlord. I have a signed and dated receipt and $1,000 holding deposit agreement from a qualified rental applicant. It says the applicant will pay the remaining balance of one month's rent plus security deposit, minus the holding deposit. It also says, "The landlord and applicant agree that if applicant cancels or fails to sign rental agreement and pay funds, the landlord may retain the deposit." The applicant has called to say she lost her job and will not be moving in and she can't afford the higher rent. Can I keep any part of the $1,000? I know I have to start to advertise again and find another qualified applicant. What are my legal rights?

Landlord's attorney Smith replies:

You did a good job by having the prospective resident sign a holding deposit agreement. Without a written agreement, the law is unclear as to what deductions are proper. After approval, the applicant did not have the right to cancel the agreement to rent. The provision in the holding deposit agreement allows you to retain at least a portion of it. You have indicated that your agreement allows you to retain the entire $1,000 holding deposit in the event of cancellation. Some judges could disagree with this and require you to show the court what your actual monetary losses are. Some courts would hold that you can deduct only the daily rental value from the date of cancellation until the premises are successfully re-leased, together with advertising and other costs. Either way, if you choose to retain the entire $1,000 or your actual losses, if less, provide a written accounting, and, if applicable, any refund, within 21 days of the applicant's cancellation.

Tenant's attorney Kellman replies:

The law disfavors penalties in rental contracts as being improper liquidated damages clauses. Here, you have a clause in your agreement mandating that the tenant forfeit the entire holding deposit, regardless of the damage you may suffer, if any.

This is unfair and probably unenforceable, even if you want to keep only a part of it. You may try to soften the problem by keeping only a portion of the money, but that does not make that provision valid. You would arbitrarily choose how much to keep without regard to any standard of how much to keep and under what circumstances. How much is too little or too much?

By keeping any money, you risk a claim for that money. There are option-type contracts that keep a unit off the market pending a possible formation of a contract. Here, the entire option amount may be retained upon the failure to enter into a contract within a given period. Those agreements must be specific and meet certain legal guidelines to be valid. Your agreement does not appear to be one of these.

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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