<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by llch:
We have lived in our place for almost 8 years and have new tenants liveing below us. They play their stereo at an unacceptale level, enought to rattle our window and shake our floor. We have complained to our management company, but to no avail. We have documented all of the when and hows of the situation. We wrote a formal letter of complaint to the management with our documentation, but have yet to see any action taken. The management company will not return our calls and are very evasive and non-cooperative when we go to their offices. We have filed a verbal complaint with the local police department which has been placed on their computers. They have been summoned to the tenants home twice by us and the police have given us citation numbers for reference for our evidence to give to management. In addition, we have tried to contact the owner directly and he has refused our calls. Do we have any legal recourse? My husband has lost many hours at work due to this problem trying to solve it within the proper channels. We are all under much duress and strain due to the fear of retribution from the nasty tenants below us.
Thanks for your guidence,
Frustrated Renters<HR></BLOCKQUOTE>
My response:
Implied in every rental agreement, both residential and commercial, is a covenant of "quiet enjoyment": The landlord impliedly promises to allow the tenant possession and "quiet enjoyment" of the premises during the contract term and not to, through act or omission, disturb the tenant's possession and beneficial enjoyment of the premises for the purposes contemplated by the rental agreement. [Ca Civil § 1927; Marchese v. Standard Realty & Develop. Co. (1977) 74 Cal.App.3d 142, 147, 141 Cal.Rptr. 370, 373]
Civil Code Section 1927. An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same.
Most covenant of quiet enjoyment cases are intertwined with the doctrine of "constructive eviction." Constructive eviction is developed further in connection with termination of tenancies generally. Traditionally at least, there could be no actionable breach of the covenant (either through an affirmative damages action or as a defense or offset to an unlawful detainer for nonpayment of rent) unless the tenant vacated the unit: i.e., there either had to be an actual eviction, or conduct so serious on the part of the landlord as to cause the tenant to vacate (a "constructive eviction"). [Kulawitz v. Pacific Woodenware & Paper Co. (1944) 25 Cal.2d 664, 670, 155 P.2d 24, 27; Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 847-848, 122 Cal.Rptr. 114, 117; Clark v. Spiegel (1971) 22 Cal.App.3d 74, 99 Cal.Rptr. 86; and see Green v. Super.Ct. (1974) 10 Cal.3d 616, 625, 111 Cal.Rptr. 704, 710, fn. 10 (dicta)]
However, some cases have taken a more liberal approach, holding that a tenant can recover damages for a breach of the covenant although still in possession of the premises. These cases recognize that tenants may lose the benefits of their rental agreements by conduct which is something less than complete ouster--i.e., "some act of molestation, affecting to . . . [tenant's] prejudice, the possession of the covenantee." [See Guntert v. City of Stockton (1976) 55 Cal.App.3d 131, 140-141, 126 Cal.Rptr. 690, 695, 127 Cal.Rptr. 602 (opn. on denial of rehng.).
Under the liberal rule that the aggrieved tenant has the right to "stand upon the lease" despite a breach of the covenant, the tenant may remain in possession and bring an affirmative damages action against the landlord. [Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 513-514, 33 Cal.Rptr.2d 572, 578; Guntert v. City of Stockton (1976) 55 Cal.App.3d 131, 141, 126 Cal.Rptr. 690, 695; Marchese v. Standard Realty & Develop. Co. (1977) 74 Cal.App.3d 142, 148, 141 Cal.Rptr. 370, 373]
Under another view (apparently), the tenant may remain in possession and seek injunctive relief. [Guntert v. City of Stockton, supra, 55 Cal.App.3d at 151, 126 Cal.Rptr. at 702 (dicta noting that trial court had granted injunction against landlord's interference with tenant's quiet enjoyment); Petroleum Collections Inc. v. Swords, supra, 48 Cal.App.3d at 847, 122 Cal.Rptr. at 117 (stating that tenant may "remain in possession and seek injunctive or other appropriate relief"); see also Lee v. Placer Title Co., supra, 28 Cal.App.4th at 513-514, 33 Cal.Rptr.2d at 578 (lease limited tenant's remedies to damages or injunctive relief)]
Good luck, and see an attorney to bring a lawsuit against the landlord and the other tenant.
IAAL
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