Condo occupant rebels over lack of light

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Apr. 15, 2010

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Rent it Right

Janet Portman
Inman News

Q: I've recently rented a privately owned condo. The landlord failed to disclose the constant noise from 8 p.m. to 11 p.m. and 4 a.m. to 8 a.m. The noise varies from delivery trucks to dumpster trucks, generators and more.

The noise disrupts my sleep and affects my performance at work. He also misled me to believe that natural sunlight comes through the windows. The lack of natural light puts me in a state of depression, which is taking a significant toll on my mental and physical health.

I have e-mailed my landlord multiple times regarding my concerns but he refuses to allow me to end my lease. Is there anything I can legally do to get out of the contract without losing my security deposit or having to pay rent until the end of the lease? --Hanah P.

A: Disclosures to potential renters, like disclosures to potential house buyers, are a tricky subject. Well, only half-tricky, because some disclosures are explicitly required by law, and as long as you know the law, it's easy to know what to say. Federal law requires all landlords to disclose the known presence of lead paint hazards, for example.

Many states have detailed disclosure requirements, such as the need to tell tenants the name and address of the property owner or manager (most states); whether any of the deposit is nonrefundable; whether the tenant will share utilities; whether the building has outstanding code violations; and most recently, whether the property is subject to a notice of default or is already in foreclosure.

My favorite is the rule in Oregon that requires certain landlords to tell tenants of the opportunity to recycle.

The second half of the disclosure rule isn't so neat and tidy, however. It simply says that the landlord must disclose all information that he knows, or should know, the prospect would want to consider before making a decision; and the duty to disclose rises as the ability of the prospect to learn the information in another way decreases.

So, say you were dealing with a family with school-age children, and the closest elementary school is on the other side of a busy thoroughfare. Do you need to point this out or can you assume that if the safety of the route to school is important, the family will check it out before renting?

My guess would be the latter, because the family can easily figure out how to get to the school and draw their own conclusions.

Or suppose your rental abuts an open space: a large and wooded tract in an already rural area. Do landlords need to disclose what types of wildlife live there and occasionally stray beyond its boundaries? Again, probably not, because -- this is the "Duh!" rule -- people are expected to have a certain amount of common sense born of experience in the world.

On the other hand, hidden defects or important aspects of a rental, which neither reasonable diligence nor common sense could uncover, are more apt to be subjects of required disclosure.

That the backyard tends to flood from heavy winter rains, for example, would be a candidate for disclosure, as would the regular Sunday morning gatherings at the house next door for a barbecue breakfast and worship, making sleeping, parking and smoke-free Sunday mornings impossible.

Most reasonable renters would want to know these things before committing, and renters would have no reason to ask or know about them, unless they're looking at the property on a Sunday morning (or during a heavy winter rain).

Within this framework, let's look at the two complaints you have about your landlord's candor and honesty. First, candor: You say that he did not tell you about the noise.

I doubt that any state law or local ordinance requires a landlord to disclose normal city noise, so we're thrown into the second category of disclosure requirements: Was this noise something that any tenant would want to know about, and is it something that you could not easily learn yourself (or be expected to know)?

Here, I'm afraid you may fail the "Duh!" test. If the building is in an urban environment, where dump trucks and delivery trucks normally operate at wee hours, you may be expected to know that they will make noise. As long as the noise frequency and decibels are nothing extraordinary, this is a fact of urban life that residents expect and learn to live with (or they flee to the country).

Your second complaint, however, concerns dishonesty rather than mere nondisclosure. Your landlord allegedly represented that sunlight would flood your windows. If the landlord knew this was untrue, that was a misrepresentation, not a failure to disclose. And on this score, you may have a better case.

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