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RealEstateAnswer, Lawyer
Category: Real Estate Law
Satisfied Customers: 27594
Experience:  10+ years in handling Leases, Landlord-Tenant, Foreclosures,Mortgages, and Eviction cases
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We have a landlord tenant issue. We have a standing pond on

Customer Question

We have a landlord tenant issue. We have a standing pond on the property. The lease said "Pond as Is", we disagreed with this from the beginning, after we noticed it in the lease. Since the Zika virus scare, we have asked to have the pond drained and agreed to pay half the cost. Owners refuses to help. Are we able to have the work done and deduct half the cost from our lease payment?
Submitted: 11 months ago.
Category: Real Estate Law
Expert:  RealEstateAnswer replied 11 months ago.

Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help with your question and concern

Expert:  RealEstateAnswer replied 11 months ago.

Does the lease advise who is to maintain the pond? I say this because I understand it is "as is" but not sure what that exactly means, in regard to caring for it and management of it.

Customer: replied 11 months ago.
I believe the lease means that the condition of the pond stays as it is when we moved in. It is just standing water and the pump associated to it was already broken, so its is no condition to maintain....just standing water infested with mosquito larve.
Expert:  RealEstateAnswer replied 11 months ago.

Thank you. The pond can not simply be drained, unless the landlord wants to agree and allow this. I say this because you can not materially alter something on the rental property, without permission and in this case, draining it would effect the pond and its condition. Now, the landlord can certainly agree to this and share in the cost but without permission you can not simply do it and then deduct it from the rent. However, since the Zika is a health and safety concern and there is standing water, which is a problem, you can demand that the landlord treat the pond, to prevent any additional outbreak. The standing water is the issue and if it will not be drained, then it needs to be treated and if the landlord is responsible for pest control and things of that nature in the lease, they would be obligated to do so.

Customer: replied 11 months ago.
We have complained about the standing water in the pond from the onset of our taking possession of the property, I didn't see it in the backyard, my husband did, but I didn't go far enough into the backyard to see it on the day we viewed it. And I am upset my husband said nothing about it! We loved the house, he loved the size of the yard. We were in from Birmingham for 2 days to find someplace to rent in this area. We had seen quite a few rentals that day, from the management company, and this house was the second to last. We were excited at the possibility to get the house and viewed and signed the lease electronically. The day we moved in, I saw the pond, searched the lease for info on it, and saw the "As is" statement in Para 21 under Special Clauses, after a statement regarding the Washer and Dryer. The statement says. "Washer, Dryer and Pond are as is and not warranted." I raised the issue in the walk thru papers and documented our concern about the standing water and the then talk of the Zika virus, sent written requests to have the pond drained and filled with dirt, and, I asked in writing to have the lease revised. 4 months went by without a word from the property manager on it. When a Zika virus case was discovered in Miami (it was outside the US at the time of our renting the property), I raised the issue again, and have kept on them for a decision. They gave us permission to drain it, but they claimed no responsibility to help with the cost, until we stated we would have the work done and deduct 1/2 of the cost from our rental payment. They agreed to have a quote done for the work and did. It came back with an estimate of $ 900 dollars, now they back out again, to say we can have it done, but, they will not help to pay. Our position is, it is their responsibility to make conditions safe for us and have again stated we will have the work done and pay half the cost. This means we will have to short our lease payment by half the cost of the work. Will we have a legal leg to stand on once we do this, is where it stands.
Expert:  RealEstateAnswer replied 11 months ago.

I do not believe you will. I say this because the lease stated that the pond was "as is" and you took it in its current condition and the landlord advised they would not be doing anything to it. They do not have to pay for, drain and fill the pond and alter it, unless they want to and in this case, they are allowing it ( since you need their permission) but they do not have to pay. I am in Florida and very familiar with the virus and that standing water increases the chance of it and the mosquitoes, so if anything, the argument ( depending on the if the lease addresses pest control), would be for them to spray or remedy the virus IF it is present and there is a high risk of getting infected. I think if you simply do this and deduct, without their permission, they will try and evict you for unpaid rent and they could succeed, since they never agreed to allow this.

Customer: replied 11 months ago.
The conditions have changed. We questioned the issue from the onset, wrote the problems we felt were at issue in the papers we submitted back to them within the 48 hours of getting here, mind you we moved from another state. There is a health advisory from the CDC regarding removal of standing water. Does this not fall in the safe conditions category? After reading the Florida Landlord Tenant Handbook, even if they process to evict us, we will be able to deposit the amount we withhold out the rent, into an account to request a hearing on the matter. Why do you think this do not fall under the category "Safe housing conditions"?
Expert:  RealEstateAnswer replied 11 months ago.

Yes, you are correct. If there is issue with rent and their claims it was unpaid and disputes, it can be deposited with the clerk of court. As I shared, it can be argued that the landlord has a duty to correct this, since it could render the property uninhabitable. However, they would need to treat it and correct it or be in violation of the lease and you could vacate. To simply drain the lake, change the condition of the property and then deduct it from the rent could be problematic. It would be one thing if you paid to have the property and lake treated but in this case you are draining the pond and materially changing the property

Expert:  RealEstateAnswer replied 11 months ago.

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