Private Nuisance at the Barter Bungalow
Jon Nileprecinct Feline
the Barter bungalow is a rental unit on the north side of central Arcata CA in a district known as NorthTown on the business 101. it is a C-shaped complex of 19 apartments with a parkinglot on the northside & a courtyard in its midst. there are still public style parkbenches inside the courtyard, bespeaking a time when it was perhaps semipublic space near campus with dwellings behind the benches as it were. the locals however speak of gunfights & hurled bottles & the residents describe homeless encampments within the complex. it is thus clear the creation of a security fence enclosing the courtyard is a welladvised idea. although a sizable project, this work was substantially completed when i assumed tenancy there on 2010jan11.
the property is made available to tenants thru California Lifestyles Realty (CLR) & the names of the onsite principals are thus not disclosed, although they are introduced as Mike the property owner, Gary the construction foreman, & Tim the legally blind onsite labourer & chief of recycling. Mike has owned & "continuously renovated" the property since 1986. Gary has been helping him fulltime onsite for 3 years & has tools stored throughout the common areas of the premises. the work is said to be recently intensive because of the security fence & interior remodeling of various units. a verbal headsup is provided to renters that they are paying to lease a construction zone as residential space. one of the circular saws was in fact set up on metal sawhorses in the common space directly outside my apartment when i assumed tenancy.
having rented continuously fulltime since 1981 i have become an ideal tenant although my technical experience with law in matters of instruments of conveyance had hitherto been limited to considerations of habitablity. indeed i had no reason to examine the situation until 2010may, owing to four factors: rain, hiking, accomodation, & disbelief. the Arcata winter kept the construction from being a predictable daily activity, i was spending my days becoming acquainted with the Arcata Community Forest & environs, i was treating the onsite gentlemen personably & with accomodation, never bringing up the subject of their construction activities as i legitimately viewed it as none of my business, & most saliently i had never encountered such a situation in 3 decades of renting & found it unbelievable to say the least. i granted everyone more than contractually due respect during my research of the issues involved, & made no actual complaint, formal or informal, until mid July.
on Friday 2010jun25 it seemed like something was changing, although i was still paying only peripheral attention. the circularsaw which had been absent from my entranceway for perhaps a few days suddenly reappeared outside my unit. i chanced to see the CLR onsite representative Jim Perry in the parkinglot & mentioned the event with admiration & enthusiasm, viewing it as more local colour to be experienced rather than as grounds for suit. "indeed" he replied, "Gary set the saw up outside your neighbors unit & the guy complained so vociferously he moved it back to your place." Jims face then assumed that screwy expression inevitable from a lessors agent who had just uttered such a sentence. i was prepared to laugh hysterically & nearly couldnt contain myself.
this by the way is an important point. im interested in seeing a good lawyer not because i wish to sue, but because i wish to laugh. among this group im unfortunately the only one who sees how hilarious it is, but i can remain under control, your honor.
after a short drive i returned in the early afternoon to find no trace of Gary or the saw. i then specifically mentioned the incident that Monday while writing Julys rent to Lou Cardoso @CLR: "didya hear how things went Friday?" Lou seemed to have a clue. "cool" i replied, "i was left with the impression that for whatever reason id managed to say the right thing to the right person. hope were moving away from saws in the courtyard & continuous construction for whatever reason which is none of my business. interesting how this operation of yours works." i left it at that & handed him the check.
so whats going on?
disclaimers aside the only way to run the place that way would be if it were completely vacant. 35 hours a week (am1000-pm1700 weekdays) a tenant is subjected to any combination of tools, cords, wires, leaning boards, highly disruptive yet unpredictably timed noises, & various discretionary infrastructure projects in differing states of completion. Gary & Tim (& perhaps sometimes Mike) however also share breakfast & lunch together in Tims unit so the truck arrives anytime after am0820 or so & "gardening" noises such as posthole driving can continue as long as pm1800 when they become statutorially illegal. the only "notice" given that one or both of them will suddenly be parked in a doorway for a week or jumping around on the roof is if one maintains a rapport with them & invests effort in curiosity as to whats happening.
the implication is that theyre interested in renting the units, considering theyre mostly filled. what then justifies the wanton & clearly actionable abuse of rentpaying tenants? my initial hypothesis was that its a "shake & boot" operation as they write 6 month leases which become month to month afterwards. a more cogent reading might view it as a turf war between the transient homeless & the owners where Gary is holding the highground via technology & tactics. finally, the argument can be advanced that Mike wants to be sued, perhaps because he has wealth he wishes to share with which he wouldnt part in an ordinary taxable or charitable venue. this is why when it was finally time to rattle his cage (ie "jiggle his handle"; hes a plumber) i was sure to present myself with an enormous spanging bear.
itz like "if youre that eager to give me all this money why dont you just place it in the cup & save us both all the court costs & litigation?" if thats aggressive spanging, so be it. yet there is another point being made: as a tenant i have no difficulty positing an appropriate "reasonable use" for a common area to which i have access pursuant to the covenant of quiet enjoyment (qv below). rather than a circularsaw, i would submit the space be used for an enormous spanging bear. once again if that means i must appear in court with such a bear, so be it.
first & foremost Gary does great work, & i would like to emphasise that anyone who tries to claim otherwise is off base. this is particularly true of the work in its completed state. his execution of these generally unnecessary projects however is done with painstaking slowness & they often have to be redesigned or restarted in process. the rolling gate mechanisms for the parkinglot for example (which predate my tenancy) are new work which failed, the motors wrapped in garbage bags & the gates roped securely to the fence. time, money, energy, & inconvenience must have accompanied the creation of this mess which apparently will not be dismantled. most frightening is the reality that the gentleman has been employed nowhere else but this workfare site for 3 full years & thus has no familiarity with current construction practices & perhaps little mobility. his most significant daily achievement is often his loud conversation with the mail delivery agent as she places the US post in the cluster mailbox piled with his tools.
Gary has a son in the marines & lives in a hut in the woods since his wife threw him out (none of which is in my lease; im sorry your honor). one interpersonal contact i remember from the infancy of my tenancy: i entered the courtyard with groceries to deposit inside my unit in the refrigerator. Gary struck up a conversation with me which he rapidly turned to an anecdotal description of him holding a hated adversary by the knuckles in a pressurepoint lock. his eyes gleaming, he smiled & made his point & i proceeded to my unit. perhaps i should say i was struck by his colourful albeit violent personality & was thankful to have had the opportunity to experience it during my ingress. perhaps i should merely say i love the guy like all human beings because we are commanded to do so.
during my interview with Mike i did not receive an explicit response when i asked him if he believed removing the sociopath from the courtyard where he resides 35 hours per week would compromise a fragile security perimeter. perhaps it is extreme to suggest replacing Gary with an enormous spanging bear, but if the turf is really the issue i might suggest a guy with a burrito truck.
the ultimate irony is that despite being unable to envision bringing anyone i respect onto the premises im actually a happy camper. i view my unit as spacious & comfortable. the shower works properly as does the toilet, the sink & the refrigerator. the gas heating, ceiling fan & lighting are in proper working order. i have extensive experience living in uninhabitable space & dont need the garbage / recycling service. i only need the parking when i have to be sure nothing happens to the crutches in the car. ive had no problems i couldnt solve & have had no complaints or requests for fixes, work, or improvement. im hardcore in a complex like this & keep entirely to myself making no noise whatsoever for the most part. im a solution person rather than a problem person & i admit i appreciate my environment being predictable enough that i can concentrate sometimes on the internet work i do.
as i told Mike, it simply breaks my heart that he believes theres anything else that needs to be done around here. i can see this place in its historical context & am enthusiastic about its habitability now that the security fence is up. it can potentially be a new kind of place if at the same time the operators can bring their understanding of lease law forward about 20 or 40 years & attract & keep tenants of a reasonable calibre for a change. Without belabouring the point, this is especially true with HSU opening new oncampus housing for 430 students in a few weeks.
the covenant of quiet enjoyment
a renter in such a situation, holding up impeccably his side of a written agreement, tends to wonder what justifies its abrogation by the landlord & his various agents. determinations as to habitability & constructive eviction are in fact generally defenses used once a landlord has initiated action, the latter involving a gambit requiring quitting the premises in a timely fashion. as a model tenant ive never experienced action & am uninterested in it. the landlords failure to observe the covenant of quiet enjoyment however provides the tenant with as it were a sword rather than a shield.
in my experience in other parts of the country landlords are generally proud to execute their own legal documents & make a point of being nowhere near the premises except for emergency maintenance. the ubiquity of the "property management" business in Arcata & Eureka bespeaks more than owners reluctance to endure the tedium of interviews & evictions; it is indicative of a landlord community perhaps insufficiently acquainted with the legal fundamentals of tenant relations.
the term "quiet enjoyment" is composed of two words used in a somewhat archaic sense. the idea behind the concept is that the unit is the renters home, that the tenant has use of it ("enjoyment") & that said use is uninterrupted ("quiet") specifically by agents possessing differing relations to the title (this is to say: the noisiness or unenjoyableness of the premises are separate issues). in this area falls the 24 hour notice required for a landlord to enter premises as well as the notion that a landlord cant drop by intermittently to "check on the units". among other things quiet enjoyment also encompasses a tenants access to any common areas. as the definition of the concept is largely in case law which differs among jurisdictions, landlords often find it advantageous to err on the side of caution & leave their tenants entirely alone in their dwellings & get on with their lives. this is why such units are called properties.
technically then Gary constitutes what is called a "private nuisance": an agent which substantially & permanently interferes with the enjoyment of premises arising only incidentally from a landlords hesitance to follow prevailing fashions concerning the requirements of the covenant of quiet enjoyment. if nothing else its an example of the unfortunate consequences which can arise if one takes such a risk. more specifically, the following frame contains numerous resources useful for locating lip reading services.