• Decision and Order
• Background
• Findings of Fact
• Conclusions of Law
• Order

On August 6, 1997, Dennis H. McCune (the "Complainant"), filed a complaint with the Office of Landlord-Tenant Affairs, within the Department of Housing and Community Affairs (the "Department"), in which he alleged that David Swanner (the "Respondent"), owner of 4108 Warner Street, Kensington, MD (the "Property"), a single-family rental property in Montgomery County, MD: 1) failed to deliver the Property to him at the commencement of the lease term, October 20, 1996, in a clean, safe and sanitary condition; and, 2) refused to refund his security deposit after he notified the Respondent in writing of his intention not to take possession of the Property.

Specifically, the Complainant asserts: 1) on or about October 15, 1996, he entered into an eight and one-half (8½) month lease agreement with the Respondent for the rental of the Property which commenced October 20, 1996, and was due to expire on June 30, 1997, and paid a security deposit of $975.00; 2) on moving into the Property on October 21, 1996, he noticed several problems, including a moldy odor in the rear addition to the Property along with a problem with the gas oven, which he immediately reported to the Respondent; 3) on October 22, 1996, the Respondent sent him a fax which stated, "I strongly urge you to cease using the stove and summon emergency service from the Washington Gas Light Company", which he did; 4) on October 23, 1996, a contractor from the Washington Gas Company inspected the stove and found, "Signature range saturated in grease and presents a possible fire hazard-should not be used until corrections are made"; and 5) On October 23, 1996, he vacated the Property, turned in his keys and notified the Respondent that he could no longer stay under those conditions.

The Complainant is seeking a refund of his entire security deposit ($975.00), plus interest accrued from the termination of his tenancy, October 23, 1996, to the date of the hearing. He is also requesting the refund of pro-rata October 1996 rent in the amount of $450.00.

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 February 11, 1999, and ended on that date.

Furthermore, the Commission extended 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 the County Code.

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 Complainant, Dennis McCune, and the Respondent, David Swanner. Two witnesses, John and Mary Liipfert, who were summoned at the Respondent’s request, were not present at the hearing. Both witnesses notified the Commission in writing of their inability to be present for the hearing.

The Commission entered into evidence, as Commission’s Exhibit No. 1, the contents of the case file compiled by the Department. There was no objection by the Complainant but the Respondent questioned whether the correspondence from the absent witnesses would be considered. The Respondent requested that the letter written by John and Mary Liipfert, page 18 of Commission’s Exhibit No. 1, not be considered since the Liipferts were not present and he could not cross examine them regarding the letter’s contents. The Commission granted this request, and page 18 of Commission’s Exhibit No. 1 was stricken from the record.

The key issue in this case is whether or not the Respondent breached his lease with the Complainant in violation of Section 29-30 (a)(3) of the County Code and Paragraph 9 of the lease, entitled, "Maintenance."

The Complainant submitted into evidence at the hearing 14 photographs (Complainant’s Exhibit # 1A - 1G) which he asserted depicted the condition of the Property at the commencement of his tenancy, and a short video tape (Complainant’s Exhibit #2), depicting these same conditions. The Complainant testified that he had inspected the Property on October 15, 1996, and expressed an interest in renting it from the Respondent. Based on that inspection, he submitted a rental application, but he did comment to the Respondent at this inspection, there was a "musty odor" in the house. He was informed by the Respondent that this odor was probably due to the fact the house had been closed up for awhile. The Complainant was subsequently approved and took possession of the Property on October 20, 1996, at which time he moved in most of his possessions. On October 23, 1996, he attempted to use the gas stove and detecting an odor of gas, notified the Respondent. The Respondent informed the Complainant, through facsimile, to stop using the stove immediately and call the gas company, which he did. The technician from the gas company wrote on the Complainant’s service ticket, " Signature range saturated in grease and presents a possible fire hazard- should not be used until corrections are made" (Complainant’s Exhibit #3). The smell from the porch remained and the Complainant discovered it was emanating from the carpet on the porch in the addition to the house, which was constantly wet. The faulty stove and the smell from the wet rug in the addition, taken as a collective caused the Complainant to conclude the Property was not habitable and on October 23, 1996, he informed the Respondent, via telephone message, of his intention to vacate the Property immediately due to its uninhabitable condition.

The Respondent testified that at the time he rented the Property to the Complainant, it was in clean, safe and sanitary condition, and in compliance with all applicable laws. The Respondent also testified that when he was informed of the problem with the stove, he immediately told the Complainant to stop using it and call the gas company for service. The Respondent further testified that before he had the opportunity to affect repairs, the Complainant vacated the Property. At that point, the Respondent notified Weichert Realtors and listed the Property for sale or rent. He also put ads in the Washington Post and had the Realtors place ads as well. The Respondent testified that he replaced the carpet and the underlayment in the addition on November 2, 1996 and replaced the stove on December 5, 1996. He signed a lease with a new tenant on December 2, 1996 (see Commission’s Exhibit #1, p.19). He also repaired a roof leak that apparently was causing the carpet on the porch to be constantly wet.

Upon consideration of the testimony and documentary evidence submitted herein, including the photographs submitted by the parties, the Commission makes the following findings of fact and conclusions of law.

1. Prior to execution of the lease, Complainant inspected the premises with the Respondent, at which time he did not observe any defects or deficiencies but did comment on a musty odor which was presumed by the Respondent to be due to the fact the house had been vacant and closed for a time.

2. The Complainant signed a lease with the Respondent on October 15, 1996, which commenced on October 20, 1996 and was due to expire on June 30, 1997.