The above captioned case having come before the Commission on Landlord-Tenant Affairs for Montgomery County, Maryland (the "Commission"), pursuant to Sections 29-14A, 29-38, and 29-40 of the Montgomery County Code, 1994 as amended ("County Code"), having considered the testimony and evidence of record, it is therefore, this 22nd day of April, 1999, found, determined and ordered, as follows:

On May 5, 1998, David Waple and Jenny O’Brien (the "Complainants"), former tenants at 215 W. Diamond Avenue, Gaithersburg, Maryland, a licensed single-family dwelling in Montgomery County, MD (the "Property"), filed a formal complaint with the Office of Landlord-Tenant Affairs, within the Department of Housing and Community Affairs (the "Department"), in which they alleged that David W. Saah, owner of the Property (the "Respondent"): (1) failed to make requested repairs to the Property, including water leaks; (2) began construction of a new house at the rear of lot on which the Property sits, thereby severely limiting their yard space and reducing the value of their leasehold; and (3) contractors building the new house used their electricity and water without their permission which increased their electric and water bills.

In response to the above-referenced allegations, the Respondent contends that: (1) he never authorized the Complainants to repair water leaks in the house and therefore, he is not liable to reimburse them for those costs; (2) he had a building permit to construct a house on a separate lot at the rear of the Property; his lease with the Complainants covered only the lot on which the Property sits and not the separate lot at the rear of the Property where he built a new house; and (3) the Complainants have failed to provide any evidence or documentation that his building contractor or workmen used their water or electricity and therefore, he is not responsible for any increase in their utility bills.

The Complainants are seeking an Order from the Commission for the Respondent to: (1) reimburse them $579.33 for the following repairs they made to the Property: plumbing repairs — $119.00, drywall repairs — $307.00 and clothes dryer repairs — $153.33; (2) transfer the water and electric accounts into his name and they will pay only a set amount each month; (3) reduce the monthly rent as compensation for the loss of their use of a portion of the rear yard; and, (4) provide the assurance that he is in compliance with all applicable codes.

After determining that the complaint was not susceptible to conciliation, the Department duly referred this case to the Commission for its review, and on October 6, 1998, the Commission accepted jurisdiction of the case and scheduled a public hearing which commenced on January 28, 1999, and ended on that date.

The record reflects that the parties were given proper notice of the hearing date and time. Present at the hearing and presenting testimony and evidence were the Complainants, David Waple and Jenny O’Brien, witnesses for the Complainants, Omar and Carolyn Pancoast, the Respondent, David Saah, and attorney for the Respondent, Burman Berger.

Without objection from the Complainants or the Respondent, the Commission entered into the record of the hearing, identified as Commission’s Exhibit No. 1, the case file compiled by the Department. The Commission also accepted into evidence at the hearing from the Complainants, a detailed chronological billing history and analysis of Washington Suburban Sanitary Commission ("WSSC") water/sewer bills and Potomac Electric Power Company ("Pepco") electric bills, receipts for repairs they made to the Property and various correspondence to or from the Respondent, identified as Complainants’ Exhibit No. 1.

FINDINGS OF FACT

Based on the testimony and evidence of record, the Commission makes the following findings:

1. On September 1, 1996, the Respondent and the Complainants executed a hand-written "year-to-year" lease for the rental of all but the basement apartment of 215 West Diamond Avenue, Gaithersburg, MD, which commenced on that date and expired on September 30, 1998. The amount of the monthly rent was $1,200.00.

2. There are two (2) separate dwelling units in the Property, the upstairs unit rented by the Complainants, and a basement apartment. At the time the lease was signed, the basement apartment was unoccupied, however, the Respondent reserved the right to rent the basement apartment to someone else at any time.

3. Pursuant to the terms of the lease, the Complainants were entitled to occupy and use the upstairs dwelling unit only, as well as the yard area of the lot on which the Property sits. Therefore, the Complainants did not rent, and were not entitled to use, any adjacent lot owned by the Respondent.

4. Regarding the payment of utilities, the lease agreement states, "Basement tenant (or) David Saah will pay 1/3 of utilities (mainly electric and WSSC). Main tenant pays 2/3 of bills." Therefore, the Complainants were responsible to pay, in addition to the monthly rent, two-thirds (2/3) of the Pepco and WSSC utility bills; the remaining one-third (1/3) of those utility bills was to be paid by the Respondent or the basement tenant. Furthermore, the parties mutually agreed that the manner of payment was for the Complainants to pay the entire utility bills, which were in their name, and then deduct the Respondent/basement tenant’s portion (1/3) from their monthly rent. Although the rent payment cycle ran from the first day of the calendar month until the last day of the month, the Pepco (electric) bill covered approximately the 15^th day of one month until the 15^th day of the next month, and the WSSC (water) bill was issued quarterly. Thus, the rent payment cycle and the utility payment cycles did not coincide.

5. The Complainants paid the August 1998 rent in full ($1,200.00) and deducted 1/3 of the utility bills received that month from the rent as provided by the lease. Those utility bills covered the period of approximately June 15^th to July 20^th.

6. The Complainants vacated the Property at the end of the lease term, as of September 30, 1998, but did not pay September 1998 rent ($1,200.00). By mutual agreement, the Complainants agreed to forfeit their entire security deposit ($1,200.00) plus accrued interest ($48.00) to satisfy the non-payment of September’s rent and any late fee.

7. The Complainants paid the entire Pepco electric bill for the period July 20, 1998, through September 30, 1998, in the amount of $656.78, and paid the WSSC water/sewer utility bill for the period June 5, 1998, through November 18, 1998, in the amount of $344.60.

8. The Respondent failed to reimburse to the Complainants, pursuant to the terms of the lease, 1/3 of the Pepco electric bill for the period July 20 through September 30, 1998, which sum is $218.92 ($656.78 ÷ 3), or 1/3 of the WSSC water/sewer bill for the period June 5 through November 18, 1998, which sum is $114.86 ($344.60 ÷ 3).

9. The Complainants testified that within a week after they moved into the Property, they verbally notified the Respondent of certain deficiencies in the Property including two (2) water leaks, one in the dining room and one in the pantry, and the Respondent failed to repair them. The Complainants further testified that in September 1997, one year before they vacated the Property, they received a bill from WSSC for the period June 10, 1997 to September 9, 1997 (91 days), in the amount of $893.92, which led them to believe there was a drastic water leak in the house; they verbally reported this problem to the Respondent’s secretary, a woman named Roxy. The Complainants successfully negotiated with WSSC to reduce the amount of bill from $893.92 to $467.56 (See Complainants’ Exhibit No. 1). The Complainants further testified that based on the Respondent’s failure to respond to their complaint and failure to locate and repair the water leak, they had a plumber inspect the upstairs portion of the Property they rented, but he was unable to find the source of the leak in any of the areas the Complainants had access to. The source of the leak was eventually discovered to be the toilet in the basement apartment. The Complainants were eventually given access to the basement apartment where they discovered a leaking toilet, and the Complainants had it repaired. The WSSC bills entered into the record as a part of Complainants’ Exhibit No. 1 reflect a pattern of water usage by the Complainants as well as the drastic increase reflected on the June 10, 1997 to September 9, 1997 billing statement. The Commission finds credible the testimony and evidence of the Complainants that the basement toilet did have a leak which resulted in the Complainants having to pay increased water bills in the amount of $200.00.

10. In February 1998, the Complainants verbally informed the Respondent that water was leaking in the laundry room, pantry, and master bedroom of the Property, and the Respondent failed to respond and make requested repairs. On February 16, 1998, part of the bedroom ceiling collapsed and, based on the Respondent’s failure to repair it in a timely manner, the Complainants made the needed repairs at their own expense. As a part of Complainants’ Exhibit No. 1, the Complainants entered a receipt (Invoice #5141) dated February 17, 1998, from Hopkins & Porter Handymen, in the amount of $307.00 for drywall repairs and a receipt (Invoice #2332) dated February 16, 1998, from Pipe Doctor Plumbing & Heating Co., in the amount of $119.00 for plumbing repairs, into the record. The Commission finds credible the Complainants’ evidence and testimony that the Respondent failed to make necessary plumbing and drywall repairs, which were his responsibility after being put on notice by the Complainants, and the Complainants made those repairs and incurred $426.00 in actual expenses to do so.

11. In February 1998, the clothes dryer in the Property began to malfunction, and the Complainants verbally informed the Respondent of this deficiency and requested that it be repaired. Based on the Respondent’s failure to repair the defective clothes dryer, the Complainants repaired it at their own expense. As a part of Complainants’ Exhibit No. 1, they entered a receipt (Invoice #6381) dated February 17, 1998, from Variety Service Co., in the amount of $153.33 for repair of the clothes dryer into the record. The Commission finds credible the Complainants’ testimony that the Respondent failed to make necessary repairs to the clothes dryer after being put on notice by the Complainants, which was his responsibility, and as a result, the Complainants made those repairs and incurred $153.33 in actual expenses to do so.

12. The Commission credits the testimony of the Complainants that sometime after the commencement of their tenancy, the Respondent rented the basement apartment to a couple and their child, and that those persons eventually fell behind in their rent payments to the Respondent and they vacated prior to being formally evicted.

13. The Respondent acknowledged use of the Property’s utilities by his building contractors. However, the Complainants testified at the hearing that the damages suffered by them, if any, were nominal. Additionally, in accordance with the terms of the lease, the Respondent or basement tenant was responsible of 1/3 of the utilities. Since there was no tenant in the basement apartment during at least some portion of the time construction took place, and the Respondent was responsible for 1/3 of the utilities, he was within his right to utilize said utilities.

CONCLUSIONS OF LAW

1. In accordance with Section 29-30(a)(3) and (4) of the County Code, a landlord is responsible for repairing and maintaining the rental dwelling and all electrical, plumbing and other conveniences supplied by the landlord. Based on the Respondent’s failure to make needed and necessary repairs to the Property after being put on notice by the Complainants, the Complainants made those repairs and incurred actual expense and therefore, the Complainants are entitled to reimbursement of incurred expenses as follows: plumbing repairs ($119.00), drywall repairs ($307.00), and dryer repairs ($153.33). Additionally, the Complainants are entitled to $200.00 for the expense they incurred as a result of a leaking toilet in the basement apartment that resulted in increased water bills they paid.

2. The lease did not cover the adjoining lot. Therefore, the Respondent did not limit the Complainants’ yard space by building on the lot, and the value of their leasehold was not reduced by the Respondent’s building activity.

3. The Respondent acknowledged use of the utilities by the building contractors. However, the Complainants testified at the hearing that the damages suffered by them, if any, were nominal. Additionally, in accordance with the terms of the lease, the Respondent or basement tenant was responsible for 1/3 of the utilities. Since there was no basement tenant, the Respondent was responsible for 1/3 of the utilities and was within his rights to utilize said utilities.

4. Pursuant to the terms of the lease, the Respondent was responsible for payment of 1/3 of the Pepco electric and WSSC water/sewer utilities until the termination of the Complainants’ tenancy on September 30, 1998. Based on the fact that the Complainants paid the entire Pepco electric bill for the period July 20^th through September 30, 1998 ($656.78), and the entire WSSC water/sewer bill for the period June 5^th through November 18, 1998 ($344.60), and did not deduct that amount from any rent payment, they are entitled to be reimbursed by the Respondent for 1/3 of those amounts.

5. The Respondent caused a defective tenancy by failing to make needed and necessary repairs to the Property after being put on notice by the Complainants, and by failing to completely reimburse the Complainants for 1/3 of the utilities pursuant to the terms and conditions of the lease.

6. Because of the defective tenancy, the Respondent is liable to the Complainants for actual costs they incurred to make repairs to the plumbing, drywall and clothes dryer, for the increased water bill, and for a portion of the utilities, pursuant to Section 29-43(c)(2) of the County Code.

ORDER

In view of the foregoing, the Commission on Landlord-Tenant Affairs hereby orders the Respondent to pay the Complainants $1,113.11, which sum represents reimbursement for the cost they incurred to repair the plumbing, drywall, and dryer ($579.33), reimbursement for the increased water bill based on the leaking toilet in the basement apartment ($200.00), and 1/3 of the Pepco electric bill for the period July 20 ^th through September 30, 1998 ($656.78 ÷ 3 = $218.92) and 1/3 of the water bill for the period June 5 ^th through November 18, 1998 ($344.60 ÷ 3 = $114.86).

The foregoing was concurred by the unanimous vote of all Commissioners present for the hearing, being Cynthia Morgan, William Devany, and Jonathan Smith, Chair.

To comply with this Order, Respondent David Saah must forward to the Office of Landlord-Tenant Affairs, 100 Maryland Avenue, 4th Floor, Rockville, MD 20850, within fifteen (15) calendar days of receipt of this Decision and Order, a check payable to David Waple and Jenny O’Brien, in the full amount of $1,113.11.

You are hereby notified that Section 29-44 of the County Code declares that failure to comply with this Decision and Order is punishable by a $500.00 civil fine Class A violation as set forth in Section 1-19 of the County Code. This civil fine may, at the discretion of the Commission, be imposed on a daily basis until you comply with this Order.

In addition to the issuance of a $500.00 civil fine Class A violation, should the Commission determine that you have not, within fifteen (15) calendar days of receipt of this Decision and Order, made a bona fide effort to comply with the terms of this Decision and Order, it may also refer the matter to the County Attorney for additional legal enforcement.

Any party aggrieved by this action of the Commission may file an administrative appeal to the Circuit Court for Montgomery County, Maryland within thirty (30) days from the date of this Order, pursuant to the Maryland Rules governing administrative appeals.

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Cynthia Morgan, Commissioner

Commission on Landlord-Tenant Affairs