This week’s question comes from a concerned parent in south Marin, who asks,
Q: “My daughter and four roommates have lived in a two-bedroom apartment in San Francisco for the past two years. When they first moved in, they agreed with the landlord that they would be billed monthly for the water bill. It did not say so in the lease, however. As the year went on, they were never billed even though they asked him repeatedly for it via email. Now, two years later, he is demanding the racked-up $1,000+ water bill for August 2017 through July 2018 to be paid with their rent check for June 1st. Is this legal? How should they handle this situation?”
A: Dear Concerned Parent, It is difficult to answer this question without the benefit of reviewing the lease document. However, I will answer generally with my understanding drawn from seeing numerous lease agreements as both a renter and landlord.
The rental of an apartment is a contractual arrangement, comprising a landlord’s offer to lease under specific terms and a tenant’s acceptance of those terms. California Civil Code § 1941.1(a)(3) dictates that the landlord bears responsibility to render an apartment habitable by providing water facilities meeting specific regulatory criteria. Generally, a lease agreement includes provisions pertaining to payment for utilities provided, so I would first suggest that you look at the lease to see what, if anything, it says about utilities and which party bears the expense for them.
Next, you should look toward the end of the lease agreement to see if it has an “merger” or “integration” clause, which would look something like this: “This Agreement contains the entire agreement between the Parties to this Agreement and supersedes any and all prior agreements, understandings, representations, and statements between the Parties, whether oral or written, and whether by a Party or such Party’s legal counsel. The Parties are entering into this Agreement based solely on the representations and warranties herein and not based on any promises, representations, and/or warranties not found herein. No modification, waiver, amendment, discharge, or change of this Agreement shall be valid unless the same is in writing.” These types of clauses are standard in most contracts, including lease agreements, and indicate the parties’ agreement that the contract’s only enforceable provisions are those set forth within the “four corners” of the document, including any addendums or modifications signed by all contracting parties.
Therefore, if your daughter’s lease agreement includes a merger clause and does not include any specific provision for water payments, she can make a strong argument that any oral agreement to pay water bills, outside the four corners of the lease, is unenforceable.
If the lease document contains no merger clause, however, the landlord could argue that an oral contract existed requiring the tenants to pay for water on a monthly basis and point to the roommates’ emails asking for the water bills to demonstrate the nature, existence, and/or terms of that contract. In this scenario, your daughter could still raise a “waiver of rights” defense to the landlord’s claim. Parties to a contract may waive certain contractual rights by not acting upon them. Here, your daughter could argue that her landlord, having not presented any monthly bills in the past two years, has waived any right to demand payment for that bill now.
Your daughter could bolster this waiver argument by citing to California Civil Code § 1954.205, Bill for water service; calculation; inclusion of other lawful charges, which sets forth the law regarding landlords billing for water services. The following relevant parts would apply here: “(a) As part of the regular bill for water service, a landlord shall only bill a tenant for the following water service: (1) A charge for volumetric usage, which may be calculated in any the following ways: (A) The amount shall be calculated by first determining the proportion of the tenant’s usage, as shown by the submeter, to the total usage as shown by the water purveyor’s billing. The dollar amount billed to the tenant for usage shall be in that same proportion to the dollar amount for usage shown by the water purveyor’s billing. . . . (a) Submeters shall be read within three days of the same point in each billing cycle. (b) Payments shall be due at the same point in each billing cycle.” If your daughter can show that her landlord failed to read the submeters (if any) regularly and provide the bill as required, this evidence would further substantiate an argument that he waived his contractual right to demand payment of the water bills.
I hope this helps you, your daughter, and her roommates. If the landlord doesn’t back down, I suggest that she consult the San Francisco Tenant’s Union for more advice at www.sftu.org.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions and topics for future articles to firstname.lastname@example.org.
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