I moved into an apartment complex from FL. Only did business over the phone & pictures on the internet.I was never once told about the extreme construction. From day 1, it has been nothing but a nuisance.I have been asked to vacate my apt for the entire day, the water has been shut off until 6 pm more than I can count, along with power. Did not even have full access to my 2nd fl apt for weeks unless i walked & have asked for compensation or discounted rent but been denied. They called me a liar.Even have witnesses that they told me on day 1 that they would only need to be in apt 1 time. They have entered apt more than I can count & I currently have to vacate from 8-6 for entire week. How can they charge me full price for all the inconveniences? Is this legal? I have pictures to document
This does not sound legal at all. Under California law, all leases have the implied covenant of "quiet enjoyment". (California Civil Code, § 1927). The landlord (and management company) has the duty to preserve the quiet enjoyment of all tenants. (Davis v. Gomez (1989) 207 Cal.App.3d 1401, 1404.)
If you as a tenant unilaterally breach the lease and move out without the approval of the landlord or management company, then the landlord has the right to take your security deposit for the unpaid rent, and bring a lawsuit to recover the rent due for the remaining duration of the lease. Typically, since the landlord has the duty to mitigate damages by finding a replacement tenant, the lawsuit will not be filed right away. A judgment against you which is not satisfied (unpaid) will certainly reduce your credit score.
A tenant will have the opportunity to fight a lawsuit in the event the landlord or management company decides to sue for the balance of the rent due.
Basically, what you as the tenant want to establish in your defense is a "constructive eviction" defense. The concept of a “constructive eviction” exists under the rubric of a breach of the covenant of quiet enjoyment that is implied in every rental agreement. (Stoiber v Honeychuck (1980) 101 Cal.App.3d 903, 925–926.)
Substantial interference is required to establish a breach of quiet enjoyment. An interference by the landlord "by which the tenant is deprived of the beneficial enjoyment of the premises amounts to a constructive eviction if the tenant so elects and surrenders possession, and the tenant will not be liable for rentals for the portion of the term following his eviction." (Kulawitz v. Pacific Paper Co. (1944) 25 Cal.2d 664, 670.)
Minor inconveniences and annoyances are not actionable breaches of the implied covenant of quiet enjoyment. To be actionable, the landlord's act or omission must substantially interfere with a tenant's right to use and enjoy the premises for the purposes contemplated by the tenancy. (Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846.)
If you are a tenant who makes little or no attempts to inform the landlord of the construction noise problems and just quietly move out, this fact would not look favorably in the eyes of the court or a jury. To protect your credit, a much better approach would be to negotiate a lease termination agreement whereby you agree to pay a certain sum in exchange for a full release of any and all obligations under the lease.
However, if the landlord is not willing to enter into a lease termination agreement, then I suggest that before you move out, write another letter to the landlord or management company documenting the entire chronology of events, from the inception of the problem to the multiple requests you made to the landlord or management company regarding this issue.
I agree with the above and would add that it seems that whoever is handling this matter is not sophisticated as to California law. If you are dealing with a property management company and not the owner of the property, the owner would probably not appreciate the potential liablility the agent is creative by what may amount to a "constructive eviction". Incidental inconvenience is very different than what you are describing. Further, the representations made orally or on the internet may be a basis for fraud and your ability to seek to "rescind" the lease based on the false representations. You may wish to seek a free consultation with an attorney who may offer other alternatives based on the specifics of your case and the evidence you may be able to mount to seek either a rental concession or a cancellation of the leases depending on your desires after you consider the best course of action. In any event, if you do have a long term lease any negotiated resolution (terminaton or rental abatement) must be documented in a writing to protect you.
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