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(CA) Demand Lost Rent from Property Manager for Delay in Pulling Water Heater Permit

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justalayman

Senior Member
The bill was what it was. You paying less than the bill and making the pm pay any portion of the bill would be unjust enrichment.

So, you have a valid offer to engage into a contract with all the work performed by the comtractors to prove you could have it done for less? It really doesn’t matter if you do. I can find a dozens places that charge more than you were charged. Will you pay the pm the difference because he saved you that much? Of course not.

You were charged a reasonable fee even if it wasn’t the cheapest place.

Owner relied on PM statements (via meetings, phone and emails) that he would have the required permits pulled. Thanks.
. Unless he had a fiduciary duty to you that is irrelevent. Given your continued statement he was not empowered to engage contractors, he obviously had no fiduciary duty to you for those issues.


And again: the pm could not pull the permits but regardless, you have continued to say he didn’t have the authority to do that anyway. Since he couldn’t pull the permits or legally engage the contractors, you surely have no right to treat him as if he did.

Why would you even entertain the pm applying for the permits since he didn’t have the authority to engage the comtractors? Since the pm couldn’t engage the contractors, how would he ever know when it was possible to apply for permits? Were you in the process of engaging the contractors so a permit would be issued? If so, then you or the comtractors would apply for,the permits. The pm wouldn’t even have the information available to apply for a permit so,why would you agree to have the pm apply for permits if he had no authority to act as your Agent in this mattter?


You’re goimg around in circles. You’re trying very hard to say the pm didn’t have the authority to engage the comtractors yet you want to hold him liable for issues possible only if he did have the authority to engage the contractors. You really need to make up your mind and pick a position to stand on.


If you have any other gas appliances in the building using the same exhaust flue, you need to address that issue. Backflow of carbon monoxide from other appliance can kill the occupants of the building.
 


emery84

Member
The bill was what it was. You paying less than the bill and making the pm pay any portion of the bill would be unjust enrichment.
You continue to argue the same point which I already answered in my last post. The bill was for something the owner never ordered nor approved and is not the FMV:
emery84 said:
Unjust enrichment is when an owner is overcharged $500 for something they did not order, then coerced to pay for it. Paying the fair market value is not unjust enrichment.

. Unless he had a fiduciary duty to you that is irrelevent. Given your continued statement he was not empowered to engage contractors, he obviously had no fiduciary duty to you for those issues.

And again: the pm could not pull the permits but regardless, you have continued to say he didn’t have the authority to do that anyway. Since he couldn’t pull the permits or legally engage the contractors, you surely have no right to treat him as if he did.

And again: the pm could not pull the permits but regardless, you have continued to say he didn’t have the authority to do that anyway. Since he couldn’t pull the permits or legally engage the contractors, you surely have no right to treat him as if he did.

Why would you even entertain the pm applying for the permits since he didn’t have the authority to engage the comtractors? Since the pm couldn’t engage the contractors, how would he ever know when it was possible to apply for permits? Were you in the process of engaging the contractors so a permit would be issued? If so, then you or the comtractors would apply for,the permits.
My statement is not "he was not empowered to engage contractors." That is your vague statement. I specifically said, "PM had limited authority (given via meeting and emails) to manage property, including having a plumber diagnose water heater, give an estimate and coordinate pulling of the permits by the plumber and electrician." PM did not have the authority to spend $2,500 on repairs without owner's approval.

The pm wouldn’t even have the information available to apply for a permit so,why would you agree to have the pm apply for permits if he had no authority to act as your Agent in this mattter?


You’re goimg around in circles. You’re trying very hard to say the pm didn’t have the authority to engage the comtractors yet you want to hold him liable for issues possible only if he did have the authority to engage the contractors. You really need to make up your mind and pick a position to stand on.
No. You’re going around in circles by continuing to use the vague term "engage the contractors" and arguing that point, which I never made.

Again, PM "had the information available to apply for a permit." Because, the plumber asked him if he wanted the plumber to apply for the permit. PM declined. Again, PM said he would have the plumber and electrician pull the permits.

If you have any other gas appliances in the building using the same exhaust flue, you need to address that issue. Backflow of carbon monoxide from other appliance can kill the occupants of the building.
I believe it's a dedicated flue in the water heater closet. Thanks for the warning and replies.
 
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justalayman

Senior Member
It is fmv because a regular contractor bid the job at that price. As I said, I can guarantee I can also find more expensive contractors. The law doesn’t expect every contractor to have the exact same price.


The pm doesn’t appear, per your description, to have the legal ability to pull a permit. In my area it would require the contractor to apply for the permit or if you are an owner (as opposed to an llc, partnership, or other incorporated entity), you could pull a permit. The pm could not pull a permit for the situstion you describe. Maybe you should check with the building department and see if the pm could in your area.


Engage the contractors is not a vague statement. You may not understand what I’m referring to but it isn’t vague. It refers to the ability to enter into a contract on your behalf with the contractors. You’re saying the pm did not have that authority. If he didn’t, then surely whether a prermit is obtained or not is also outside the scope of his duties. He would have no obligation to chase the contractors for the permits because he was not in a position to act on your behalf regarding the contract.

And because of that and the pm’s misunderstanding of his duties, if you refuse to pay the full bill it would amount to an unjust enrichment to you.
 

emery84

Member
It is fmv because a regular contractor bid the job at that price. As I said, I can guarantee I can also find more expensive contractors. The law doesn’t expect every contractor to have the exact same price.
PM’s illegal, unauthorized purchase and installation of water heater, not notifying and not providing estimate to owner until after installation, damaged owner by taking away owner’s ability to:
  • View written estimate, understand and agree to terms: warranty, make, model, price, permit, etc
  • Get a second opinion
  • Get other estimates
  • Repair water heater
  • Choose another plumber or electrician
  • Choose a different type (gas), model or brand of water heater
  • Demand permit
  • Pay a lower price, etc.
PM's demand for reimbursement for unauthorized purchase is proven to be unjust by owner’s three estimates for installation of same make and model water heater (including Home Depot). It is not uncommon for PMs to get 3 estimates for large jobs.

The pm doesn’t appear, per your description, to have the legal ability to pull a permit. In my area it would require the contractor to apply for the permit or if you are an owner (as opposed to an llc, partnership, or other incorporated entity), you could pull a permit. The pm could not pull a permit for the situstion you describe. Maybe you should check with the building department and see if the pm could in your area.
PM has the legal ability to contact plumber and electrician and inform them that he changed his mind and wants the permit now, which the PM did. PM contracted, communicated with and purchased water heater from plumber and electrician without involving owner. PM’s lack of legal ability to pull permits himself does not release him from his duties, obligations nor absolve him from damage caused by his unauthorized actions.

Forcing owner to apply for permit themselves would unjustly shift liability and costs for repairs from contractors (who are legally responsible) to owner, as advised by city permit office. PM’s illegal, unauthorized purchase, declining of permit and installation of water heater and delay in permit caused damages in loss rent to owner.

Engage the contractors is not a vague statement. You may not understand what I’m referring to but it isn’t vague. It refers to the ability to enter into a contract on your behalf with the contractors.
Ok. Yes, PM did not have the legal authority to contract without owner’s approval.

You’re saying the pm did not have that authority. If he didn’t, then surely whether a prermit is obtained or not is also outside the scope of his duties. He would have no obligation to chase the contractors for the permits because he was not in a position to act on your behalf regarding the contract.

And because of that and the pm’s misunderstanding of his duties, if you refuse to pay the full bill it would amount to an unjust enrichment to you.
Yes, PM was not authorized to spend $2500 for the water heater. The rest of your reply is answered above, as it is somewhat redundant. Having contractors pull permits is not outside of the scope of PM’s oral agreement and duties. The PM has the legal ability, obligation and promised to have the permits pulled, as explained above. Lack of a written agreement does not give the authority for PM to spend for repairs without owner’s approval. There was not a misunderstanding of his duties. Owner's multiple requests for a written estimate for water heater (including, warranty, make and model) were ignored, while the PM was having the water heater installed. Prior to this, PM got owner's approval for all repairs on multiple occasions. However on the largest repair and as the PM was exiting, PM chose not to get approval from owner. PM's actions (1. unauthorized purchase, 2. demand reimbursement of high price, 3. delaying obtaining permit) were unjust and damaged the owner.

Thanks. Any feedback on points raised is welcomed.
 
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justalayman

Senior Member
PM’s illegal, unauthorized purchase and installation of water heater, not notifying and not providing estimate to owner until after installation, damaged owner by taking away owner’s ability to:
  • View written estimate, understand and agree to terms: warranty, make, model, price, permit, etc
  • Get a second opinion
  • Get other estimates
  • Repair water heater
  • Choose another plumber or electrician
  • Choose a different type (gas), model or brand of water heater
  • Demand permit
  • Pay a lower price, etc.
PM's demand for reimbursement for unauthorized purchase is proven to be unjust by owner’s three estimates for installation of same make and model water heater (including Home Depot). It is not uncommon for PMs to get 3 estimates for large jobs.


PM has the legal ability to contact plumber and electrician and inform them that he changed his mind and wants the permit now, which the PM did. PM contracted, communicated with and purchased water heater from plumber and electrician without involving owner. PM’s lack of legal ability to pull permits himself does not release him from his duties, obligations nor absolve him from damage caused by his unauthorized actions.

Forcing owner to apply for permit themselves would unjustly shift liability and costs for repairs from contractors (who are legally responsible) to owner, as advised by city permit office. PM’s illegal, unauthorized purchase, declining of permit and installation of water heater and delay in permit caused damages in loss rent to owner.


Ok. Yes, PM did not have the legal authority to contract without owner’s approval.


Yes, PM was not authorized to spend $2500 for the water heater. The rest of your reply is answered above, as it is somewhat redundant. Having contractors pull permits is not outside of the scope of PM’s oral agreement and duties. The PM has the legal ability, obligation and promised to have the permits pulled, as explained above. Lack of a written agreement does not give the authority for PM to spend for repairs without owner’s approval. There was not a misunderstanding of his duties. Owner's multiple requests for a written estimate for water heater (including, warranty, make and model) were ignored, while the PM was having the water heater installed. Prior to this, PM got owner's approval for all repairs on multiple occasions. However on the largest repair and as the PM was exiting, PM chose not to get approval from owner. PM's actions (1. unauthorized purchase, 2. demand reimbursement of high price, 3. delaying obtaining permit) were unjust and damaged the owner.

Thanks. Any feedback on points raised is welcomed.
His action was not illegal.

I’m not going to address this any longer. Don’t pay the guy whatever you want to short him. He is free to sue you and let the court tell you to pay him, which I have no doubt the court will.

You cannot lawfully charge him for the rent you claim you lost. If you think he owes you for lost rent, sue him but until a court says he owes you, he doesn’t owe you thst money.
 

emery84

Member
His action was not illegal.
His action was illegal. For one, under CA BPC 10130, 10131 & 10145 a broker's license is required to manage another person's property and a broker's trust account for rents. Only PM's personal name on all paperwork (e.g., lease, etc.) and bank account for rents is evidence of his illegal action.

I’m not going to address this any longer. Don’t pay the guy whatever you want to short him. He is free to sue you and let the court tell you to pay him, which I have no doubt the court will.
If PM sues, the judge will ask, Do you have a broker's license to manage property? Is there a written management agreement? Present evidence of you giving owner a written estimate. Present evidence owner approved the water heater. PM will have no valid evidence. On the other hand, owner will present evidence to the contrary..

At that point, judge may say owner owes nothing, given PM's actions. Does owner want to keep the water heater? If yes, owner will present counter suit with estimates..

You cannot lawfully charge him for the rent you claim you lost. If you think he owes you for lost rent, sue him but until a court says he owes you, he doesn’t owe you thst money.
If there is not a settlement, PM will sue and owner will counterclaim for damages.
 

justalayman

Senior Member
Good luck with whatever you do. You’re stuck in your position believing it’s in the bag for you. I don’t believe you’re correct. I suggest you not change your position constantly regarding the pm’s position, as you did here, if this ends up in court. A judge isn’t going to argue with you about things and your lack of a single position will surely injure your veracity.



You seem to have ignored this section of the law:

10131.01.
(a) Subdivision (b) of Section 10131 does not apply to (1) the manager of a hotel, motel, auto and trailer park, to the resident manager of an apartment building, apartment complex, or court, or to the employees of that manager, or (2) any person or entity, including a person employed by a real estate broker, who, on behalf of another or others, solicits or arranges, or accepts reservations or money, or both, for transient occupancies described in paragraphs (1) and (2) of subdivision (b) of Section 1940 of the Civil Code, in a dwelling unit in a common interest development, as defined in Section 4100 of the Civil Code, in a dwelling unit in an apartment building or complex, or in a single-family home, or (3) any person other than the resident manager or employees of that manager, performing the following functions, who is the employee of the property management firm retained to manage a residential apartment building or complex or court and who is performing under the supervision and control of a broker of record who is an employee of that property management firm or a salesperson licensed to the broker who meets certain minimum requirements as specified in a regulation issued by the commissioner:



(A) Showing rental units and common areas to prospective tenants.



(B) Providing or accepting preprinted rental applications, or responding to inquiries from a prospective tenant concerning the completion of the application.



(C) Accepting deposits or fees for credit checks or administrative costs and accepting security deposits and rents.



(D) Providing information about rental rates and other terms and provisions of a lease or rental agreement, as set out in a schedule provided by an employer.



(E) Accepting signed leases and rental agreements from prospective tenants.



(b) A broker or salesperson shall exercise reasonable supervision and control over the activities of nonlicensed persons acting under paragraph (3) of subdivision (a).



(c) A broker employing nonlicensed persons to act under paragraph (3) of subdivision (a) shall comply with Section 10163 for each apartment building or complex or court where the nonlicensed persons are employed.



(Amended by Stats. 2012, Ch. 181, Sec. 1. (AB 806) Effective January 1, 2013. Operative January 1, 2014, by Sec. 86 of Ch. 181.)


Based upon a previous statement by you:

There is no written management contract in place, even though owner asked for one multiple times. As a result in the owner's mind, the only agreement is x percentage of rent when tenant is placed, then x amount of rent per month. No authority was given to contract work for repairs, for emergencies, without owner approval, etc. There is a written month-to-month lease agreement between RE sales agent (acting as manager/landlord) and tenant.

It appears the person fits in the above noted exception of requiring a brokers license.
 

emery84

Member
Good luck with whatever you do. You’re stuck in your position believing it’s in the bag for you. I don’t believe you’re correct. I suggest you not change your position constantly regarding the pm’s position, as you did here, if this ends up in court. A judge isn’t going to argue with you about things and your lack of a single position will surely injure your veracity.
I didn't say in the bag. That's why I asked.. There was no "change of pm’s position." The position/oral agreement has always been: manage the property and obtain prior approval of owner for all expenditures (e.g., obtain owner approval before contracting/engaging for repairs). You seem not to understand the distinction.

You seem to have ignored this section of the law:



Based upon a previous statement by you:




It appears the person fits in the above noted exception of requiring a brokers license.
You are misunderstanding the law. What "noted exception" do you see?
 
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emery84

Member
justalayman said:
Look up unjust enrichment and see why you need to pay the pm for the entire bill.
PM cannot claim unjust enrichment. Because, PM never gave the owner "the choice to reject the benefit (water heater):"
Cornell Law School said:
Guiding Principles

There are two principles which help to refine the circumstances under which a plaintiff cannot bring an unjust enrichment claim:

2. choice principle
1. The plaintiff cannot confer a benefit upon the defendant without giving the defendant the choice to reject the benefit, and then expect something in return from the defendant
1. ex: The plaintiff cannot paint the defendant's house in the middle of the night when defendant is sleeping, and then expect the defendant to pay the plaintiff for the plaintiff's efforts (assuming that the two parties had not contracted for this service to be performed at this time).​
justalayman said:
The bill was what it was. You paying less than the bill and making the pm pay any portion of the bill would be unjust enrichment.
emery84 said:
While owner was waiting for the diagnosis and written estimate, PM was having the water heater installed without owner’s knowledge or approval. . . .

Unjust enrichment is when an owner is overcharged $500 for something they did not order, then coerced to pay for it. Paying the fair market value is not unjust enrichment. . . .

The bill was for something the owner never ordered nor approved and is not the FMV:
 
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emery84

Member
You've obviously got all the answers...why are you here again?
To give some facts on a situation, discuss the relevant laws, definitions and take a position to see if there are any misunderstandings on my part. I posed answers to discuss their validity and get opinions, which I mentioned I appreciated:
emery84 said:
Owner is not sure if they mitigated damages enough and can lawfully deduct lost rent. . . .

Thank you for your replies. . . .

Thanks for the warning and replies. . . .

I didn't say in the bag. That's why I asked.
 
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Zigner

Senior Member, Non-Attorney
To give some facts on a situation, discuss the relevant laws and take a position to see if there are any misunderstandings on my part. I posed answers to discuss their validity and get opinions, which I mentioned I appreciated:
No, you are here merely to point out how every response is wrong. You're better off speaking to an attorney.
 

emery84

Member
No, you are here merely to point out how every response is wrong. You're better off speaking to an attorney.
No. I am here as I explained in my last post.

My last answer may have come off definitive, However, it is the answer CA DRE explained when discussing owner's situation, what attorneys say, as well as the CA law:
emery84 said:
For one, under CA BPC 10130, 10131 & 10145 a broker's license is required to manage another person's property and a broker's trust account for rents. . . .

You are misunderstanding the law. What "noted exception" do you see?
 

justalayman

Senior Member
You obviously do not understand what you quoted about unjust enrichment. What you quoted would not apply to your situation. The pm didn’t perform work for you he is seeking to get paid for. He is seeking reimbursement for work you wanted and needed that he paid for simply to facilitate the work being done In an expeditious manner.





As to What exception? This exception

a) Subdivision (b) of Section 10131 does not apply to (1) the manager of a hotel, motel, auto and trailer park, to the resident manager of an apartment building, apartment complex, or court, or to the employees of that manager,

With that, I’m done. Sue or don’t sue; pay or don’t pay.
It’s your decision and you will have to deal with the results of your actions.
 

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