Commission on Landlord-Tenant Affairs
for Montgomery County, Maryland
|In the Matter of
Guy 0. Stallworthy
Silvia N. Torres
Case No. H-1506
|George Schneider & Susan Schneider
Rental Facility: 1015 Woodside Parkway Silver Spring, Maryland
The above-captioned case having come before the Commission on Landlord-Tenant Affairs for Montgomery County, Maryland, pursuant to Sections 29-14A, 29-38, and 29-40 of the Montgomery County Code 1994, as amended ("the Code"), and the Commission having considered the testimony and evidence of record, it is, therefore, this 17th day of April, 1997, found, determined and ordered, as follows:
On February 22, 1996, Guy 0. Stallworthy and Silvia N. Torres ("Complainants"), former residents of 9807 Rosensteel Avenue, Silver Spring, MD (" the Property"), filed a formal complaint with the Montgomery County Division of Consumer Affairs. Complainants alleged that Susan and George Schneider ("Respondents"), owners of the Property: (1) refused to replace the basement carpet that was damaged following a flood on January 19, 1996; (2) applied mildew retardant chemicals to the carpet which adversely affected Complainant Silvia N. Torres' asthma condition; (3) made unreasonable requirements for frequent gutter maintenance and cleaning; (4) assessed unjust damages against them for the basement flood; (5) breached their lease agreement by failing to make timely and adequate repairs; and, (6) assessed unjust damages against their security deposit, in violation of Section 8-203 (1) of the Real Property Article, Annotated Code of Maryland.
Respondents contend that: (1) the flooding of the basement on January 19, 1996, was caused by Complainants failure to keep gutters, downspouts and exterior drains clear of leaves and other debris, in violation of Paragraph 18(d) of the lease agreement between the parties; (2) they responded to the flooding problem immediately by sending workmen to assist Complainants with removal of the water from the basement; (3) on January 20, 1996, the water damaged carpet was cleaned and treated for mildew; and, (4) Complainants breached their obligation under the lease by failing to properly clean the gutters, and therefore, are responsible for costs incurred by
Respondents to restore the damaged carpet and other damages related to the flood; and Complainants breached the lease agreement by improperly terminating their tenancy.
After determining that the matter was not susceptible to conciliation, the Chief of the Division of Consumer Affairs duly referred the above-named case to the Commission on Landlord-Tenant Affairs (" the Commission") for its review. On July 2, 1996, the Commission accepted jurisdiction of this matter and determined to hold a public hearing, which began on October 29, 1996, and concluded on that date. The Commissionextended the time period within which it would decide this matter pursuant to Section 7.1 of Appendix L, "Regulations on Commission on Landlord-Tenant Affairs" of Chapter 29 of the Code, and hereby decides as follows:
Based on the testimony and evidence of record, the Commission makes the following findings:
1. On September 16, 1995, Complainants and Respondents executed a two year lease agreement ("Lease") for the rental of the Property, which commenced on October 1, 1995, and ended on September 30, 1997. The monthly rental rate was $1,350.00.
2. On September 16, 1995, Complainants paid Respondents a security deposit in the amount of $2,700.00, which was properly receipted in the Lease.
3. On January 19, 1996, following a heavy rainfall, the basement of the Property was filled with a substantial amount of water. Complainants notified Respondents of the flood immediately.
4. In response to Complainants' notification of the basement flood, Respondents took the following steps:
5. Respondents' witness, James King, Woodside Design & Construction, Inc., testified at the hearing that when he inspected the gutters at the Property on January 22, 1996, he found them full of decayed material, and he was unable to run water through the gutter system.
6. Complainants testified that on January 25, 1996, the day after the treated carpet had been reinstalled by Respondents' contractor, they informed Respondents that the carpet continued to smell of mildew and therefore, the basement was not usable.
7. On January 30, 1996, Complainants notified Respondents in writing that, "The fundamental cause of the flooding was thus inadequate drainage at the front of the house; an immediate contributing factor may have been ice damming of the gutters. In either case, we are clearly not liable." By the same correspondence, Complainants also advised Respondents that: (1) due to the condition of the basement they were denied use of approximately 1/3 of the habitable space of the Property; (b) the presence of mildew in the basement constituted a health hazard to both the Complainants and their two very young children; and, (c) the old carpet should be removed and new carpet installed.
8. On February 4, 1996, in response to Complainants' January 30th letter, Respondents failed to contradict or refute Complainant's assertion that "...flooding was caused by inadequate drainage at the front of the house." Rather, Respondents stated, "Your letter claims that the basement flooding was caused by inadequate drainage below ground. There may or may not be drain tile at the footing perimeters or the tile may have been blocked by tree roots or infiltration over time. This is pretty much impossible for us to ascertain without excavating to footing depths' around the entire perimeter of the house." Respondents also stated, "What is clear is that the basement remains dry if the gutters and downspouts are kept clear." Regarding Complainants' request that the basement rug be replaced, Respondent stated, "We believe that the carpet was cleaned in a timely and professional manner in accordance with industry standards and that there is no evidence that indicates replacement." They further advised Complainants that the following expenses had been incurred as a direct result of the basement flooding for which Complainants were liable: (a) $305.00 for "Installing expansion grout, replacing concrete slab over temporary sump pit, reinstalling sump pump, and plugging holes in walls;" (b) $1 10-00 for "Cleaning gutters and downspouts;" and, (c) $886.20 for emergency flood service and carpet cleaning.
9. Respondents testified that the basement flooding was the direct result of the Complainants' failure to properly clean the gutters, downspouts and exterior drains. In support of their assertion, Respondents referenced the invoice from Woodside Design & Construction, Inc., dated February 4, 1996, which indicates the Respondents paid $110.00 to have the gutters and downspouts cleaned on that date (Page 16, Commission's Exhibit #1).
10. Complainants testified that the basement flooding was caused by severe weather conditions, not the lack of proper gutter cleaning. In support of their assertion, Complainants provided copies of newspaper articles (Complainants' Exhibits #2, 2A, 2B, 2C, 2D, 2E, 3, 3A, and 3B) . The articles discussed the blizzard which occurred on January 6, 1996, and the heavy rainfall over the metropolitan area on January 20, 1996.
11. The Complainants also introduced two letters into evidence supporting their contention that the basement flooding was caused by the severe weather conditions. The first letter from Mr. C. B. James, Aetna Life & Casualty Insurance Company, Baltimore Claims Office, Complainants insurance carrier, dated March 4, 1996, advised Respondents that, in his opinion, the basement flooding at the Property on January 19, 1996, was the result of "...a blizzard that accumulated 30+ inches of snow in the area...heavy rainstorms" and, "rising temperatures ... that caused a melt down of the 30+ inches of snow." Mr. James further advised Respondents that, "In no way did the Torres family contribute to the loss that occurred to your property on 1/19/96." The second letter, dated October 11, 1996, (Complainants Exhibit 429) was also from Mr. C.B. James. In this letter sent to Complainants, Mr. James stated, in pertinent part, that, "I denied the Schneider claim for damages to the basement for the simple reason the house, the basement, the sump pumps, the creation and/or lack of a drainage system was all under the care, custody and control of the Schneider family. There was nothing that you could have done to have alleviated the problem, plus none of the situation was under your care, custody and control. I definitely deemed it as an Act of God for the simple reason you had no control over the creation of a 33 inch snow storm followed by a massive melt down, with rain storms, that again caused flooding up and down the east coast of the United States."
12. In Commission's Exhibit 41, at page 18, there is a hand-written letter from Jean M. Welsh, MD, dated February 9, 1996, in which she states, "Ms. Torres has a long history of asthma & allergies to mold. Recently the basement of her present dwelling, was flooded causing much mold. This has resulted in asthma exacerbation associated with increased coughing, shortness of breath, especially when she's in the house. My advice to Ms. Torres is that she move, unless the rug can be removed or cleaned very well."
13. On February 9, 1996, Complainants issued Respondents a written notice of their intention to vacate the Property by March 10, 1996, citing a variety of reasons, including (a) "...substantial changes in the leasehold beyond our control and because of unreasonable requirements you have imposed on us for maintenance of the house;" (b) Complainant Silvia Torres....... continual allergic asthma while in the house due to exposure to mildew from the carpet and/or chemical treatment of the carpet carried out Jan. 24th.;" (c) "We believe our children are also at risk of developing similar allergic reactions;" and, (d) "The requirement of extraordinary frequent cleaning of gutters made to us by you only one week ago."
14. Complainants testified that the carpet was never restored to its original condition and that Respondents refusal to replace the carpet in the basement made the basement uninhabitable and caused an allergic reaction in Ms. Torres, requiring her to take medication including steroids. Complainants also testified that because of the uninhabitable basement they lost the use of a bedroom and a recreation room.
15. On February 12, 1996, Respondents acknowledged receipt of Complainants' notice to quit and vacate the Property by March 10, 1996, and advised them that they would be held liable for rent for the entire month of March 1996.
16. On March 5, 1996, the Complainants vacated the Property having paid rent through March 10, 1996, in the amount of $450.00.
17. Respondents testified that the Property was re-rented as of April 1, 1996.
18. On April 9, 1996, Respondents sent Complainants, by first class mail, an itemized list of damages which advised them that their security deposit plus accrued interest had been withheld "...for damages resulting from your failure to adhere to the requirements of the lease to keep gutters, downspouts and exterior drains clear of leaves and other debris," (S 1,3 82.45), lost rental income for the period March 10-31, 1996, ($900.00), "damages discovered at end of tenancy," ($984.83), and advertising expenses in the amount of $48.00, for a total damage claim of $3,315.28. The notice also advised Complainants that their security deposit had accrued interest in the amount of $52.61. By the same correspondence, Respondents also made demand for Complainants to promptly pay to them $562.67, which sum represented the Complainants security deposit ($2,700.00) plus accrued interest ($52.61) less the damages claimed ($3,315.28).
19. In pertinent part, the Lease executed by Complainants and Respondents on October 1, 1995, states:
Paragraph 5. Good Repair Except as otherwise provided herein, the Landlord will maintain the said property in good repair and tenantable condition and will be responsible for all major repairs not due to the fault or negligence of the Tenant during the continuance of this lease. Repairs or replacement of equipment provided due to normal wear and tear shall be at the expense of the Landlord.
Paragraph 18. General Maintenance Tenant will, at his own expense: d) keep gutters, downspouts and exterior drains clear of leaves and other debris;
Paragraph 19. Notice of Defects or Malfunction Tenant will give Landlord prompt notice of any known defect, breakage, malfunction or damage to or in the structure, equipment or fixtures in or on said property. This covenant, however, does not obligate, and is not to be understood, interpreted, construed, or in any way to imply that Landlord is obligated or expected to repair or correct such defect, breakage, malfunction, or damage except as provided for in paragraph--Good Repair, on page 1, Paragraph 5.
Paragraph 37. Destruction by Casualty If the said property shall be partially damaged by fire, rain, wind or other cause without the fault or negligence by Tenant, the damage shall be repaired within a reasonable time by and at the expense of Landlord and the rent, according to the extent that the property is rendered untenantable, shall be adjusted or suspended until such repairs are completed.
20. Complainants testified that they cleaned the gutters and downspouts in accordance with their lease. They also testified that one of the downspouts did not properly fit over the gutter, and introduced a photograph into evidence which allegedly depicted the improper fit.
21. Mercedes Criales, a former neighbor of the Complainants testified that she had observed Mr. Stallworthy cleaning the gutters prior to the snowstorm on January 6, 1996.
22. Cindy Denchfield, another former neighbor of the Complainants testified that she had observed that one of the downspouts did not fit into the gutter. She also testified that she observed the Property after the Complainants had vacated, and that, except for the water damage in the basement, the Property had been left in excellent condition.
23. The Commission finds credible the testimony presented by the Complainants that they took reasonable steps to keep the gutters clean.
24. The Commission is not persuaded by the arguments and evidence presented by the Respondents in support of their contention that the flood damage was caused by the Complainants failure to clean the gutters.
25. The Commission finds that the severe weather events most likely caused the flood damage. It makes this finding based upon the testimony of the Complainant, the newspaper articles relating to the severe weather vents, and common sense. The Commission is not basing their finding upon the letters in evidence written by the insurance carrier, and does not give great weight to this evidence.
26. The Commission finds that while the Property was left in very good condition, the Property was damaged beyond normal wear and tear and that Respondents incurred actual expense to repair those damages. The Commission finds that the following damages to the Property were: (a) caused by the Complainants as a result of their tenancy and in excess of ordinary wear and tear; (b) not related to the basement flood; and, (c) were properly deducted from Complainants' security deposit:
remove curtain rods, patch and paint holes 37.50
clean stove 20.00
re-install bathroom towel bar 35.00
remove paper towel holder/adhesive, patch holes 35.00
1/2 leaf and branch removal 70.00
CONCLUSIONS OF LAW
1. Complainants and Respondents executed a two year Lease agreement for the rental of the Property, which commenced on October 1, 1995, and was to expire on September 30, 1997.
2.. At the commencement of the tenancy, Complainants paid Respondents a security deposit in the full amount of $2,700.00, which was properly receipted in the Lease.
3. Complainants were not negligent regarding their maintenance responsibilities and obligations pursuant to paragraph 18(d) of the Lease (at page 3 of Commission's Exhibit #1), and did not cause the basement flood. Respondents are solely responsible for any and all damages and/or repairs which were the direct result of the basement flooding, which occurred at the Property on January 19, 1996.
4. Complainants promptly notified Respondents that the basement had flooded, in compliance with their obligation contained in paragraph 19 of the Lease, "Notice of Defects or Malfunction" (at page 3 of Commission's Exhibit #1).
5. Respondents failed to restore the basement to its original condition following the flood on January 19, 1996, in that the carpeting emitted odors and contained mildew and/or mold, rendering the basement uninhabitable.
6. Respondents were informed of these conditions on January 25, 1996, the day on which the carpeting had been reinstalled and the date on which Complainants informed the Respondents that the basement was not usable. Respondents created a defective tenancy as of February 4, 1996, when they informed the Complainants that they held the Complainants responsible for the flood damage and when they refused to correct the conditions in the basement regarding the carpet.
7. Complainants are entitled to an immediate termination of their lease as of the date of the defective tenancy on February 4, 1996, pursuant to Chapter 29, Section 29-43(b)(1) of the Montgomery County Code. Complainants requested that their lease be terminated as of March 10, 1996, and gave proper notice to vacate, on February 4, 1996, as of March 10, 1996, pursuant to Chapter 29, Section 29-26(t) of the Montgomery County Code.
8. In pertinent part, Sections 8-203f(1) and (2) and (g)(1) and (2) and (h)(1) of the Real Property Article, "Security deposits," Annotated Code of Maryland, state:
8-203. Security deposits.
(f) Return of deposit to tenant,, interest. - (1) Within 45 days after the end of the tenancy, the landlord shall return the security deposit to the tenant together with simple interest which has accrued in the amount of 4 percent per annum, less any damages rightfully withheld. (2) Interest shall accrue at six-month intervals from the day the tenant gives the landlord the security deposit. Interest is not compounded.
(g) Withholding of deposit - Generally,- tenant's right to be present at inspection of premises. --- (1) The security deposit, or any portion thereof, may be withheld for unpaid rent, damage due to breach of lease or for damage to the leased premises by the tenant, his family, agents, employees, or social guests in excess of ordinary wear and tear. The tenant has the right to be present when the landlord or his agent inspects the premises in order to determine if any damage was done to the premises, if the tenant notifies the landlord by certified mail of his intention to move, the date of moving, and his new address. The notice to be furnished by the tenant to the landlord shall be mailed at least 15 days prior to the date of moving. Upon receipt of the notice, the landlord shall notify the tenant by certified mail of the time and date when the premises are to be inspected. The date of inspection shall occur within five days before or five days after the date of moving as designated in the tenant's notice. The tenant shall be advised of his rights under this subsection in writing at the time of his payment of the security deposit. Failure by the landlord to comply with this requirement forfeits the right of the landlord to withhold any part of the security deposit for damages. (2)The security deposit is not liquidated damages and may not be forfeited to the landlord for breach of the rental agreement, except in the amount that the landlord is actually damaged by the breach.
(h) Same - Notice to tenant. - (1) If any portion of the security deposit is withheld, the landlord shall present by first-class mail directed to the last known address of the tenant, within 30 days after the termination of the tenancy, a written list of the damages claimed under subsection (g)(1) together with a statement of the cost actually incurred.
9. Complainants vacated the Property on March 5, 1996, having paid February 1996, rent in the full amount of $1,350.00, and pro rata rent for the period March 1-10, 1996, (10 days), in the amount of $450.00. The panel concludes that the correct amount of rent due for the pro rata period March 1, 1996, through March 10, 1996, is $443.80, based on the following calculation:
$1,350.00 (monthly rent) x l2 months = $16,200.00 (yearly rent)
365 days = $44.38 (daily rent) x 10 days = $44.38
10. Respondents issued the Complainants an itemized list of damages, sent by first class mail, within thirty (30) days after the termination of their tenancy, in compliance with Section 8203 (h)(1) of the Real Property Article, Annotated Code of Maryland.
11. Respondents credited Complainants with $52.61 in accrued security deposit interest. However, the panel finds that, based on Complainants' tenancy terminating as of March 10, 1996, Complainants occupied the Property for five (5) months and ten (10) days (October 1, 1995, through March 10, 1996), which is a period of less than six (6) months. Therefore, pursuant to Section 8-203(f)(1) and (2) of the Real Property Article, Annotated Code of Maryland, Complainants security deposit earned no interest.
12. Respondents rightfully withheld $197.50 from Complainants' security deposit.
13. The Commission concludes that the cost of all other repairs assessed against Complainants' security deposit by Respondents were either related to the January 19th basement flood or the result of normal wear and tear to the Property and therefore, pursuant to Section 8-203(g)(1) and (2) of the Real Property Article, Annotated Code of Maryland, those charges were not rightfully withheld.
14. Complainants failed to provide sufficient or conclusive probative evidence to support their claim that they incurred any actual damages as a result of Respondents failure to restore the basement, to its original condition.
15. Complainants' request for interest accrued on their security deposit pending the outcome of these proceedings is also denied.
16. Complainants ' request for treble damages regarding the Respondents handling of their security deposit is denied.
17. Respondents' withholding of Complainants' entire security deposit, and their assessment of damages related to the basement flood, were improper, not supported by the testimony and evidence of record and a violation of State security deposit law. Therefore, the panel concludes that Respondents' improper handling and disposition of Complainants, security deposit also caused a defective tenancy.
In view of the foregoing, the Commission on Landlord-Tenant Affairs hereby orders Respondents to pay Complainants the sum of $2,508.70, which sum represents Complainants' security deposit ($2,700.00), plus overpayment of March 1996 pro rata rent ($6.20), less damages rightfully withheld ($197.50).
The foregoing was concurred in unanimously by Commissioners William Devany, Joan Himmelhoch and Bettie Powers.
Should the Commission determine that the Respondents have not, within fifteen (15) calendar days of receipt of this Decision and Order, made a bonafide effort to comply with the terms of this Decision and Order, it may refer the matter to the County Attorney for enforcement.
The parties are hereby notified that Section 29-44 of the Montgomery County Code 1994, as amended, declares that failure to comply with this Decision and Order shall be punishable by a civil fine Class A violation as set forth in Section I- 1 9 of the Montgomery County Code 1994, as amended.
Any party aggrieved by the action of the Commission may file an administrative appeal to the Circuit Court of Montgomery County, Maryland, within thirty (30) days from the date of this Order, pursuant to the Maryland Rules governing administrative appeals.
Joan Himmelhoch, Panel Chairperson
Commission on Landlord-Tenant Affairs