The legal issues surrounding water usage
Widely regarded as one of the greatest minds in history, Italian artist, engineer, scientist, inventor, and anatomist Leonardo da Vinci said that “water is the driving force of all nature.” We would add that it is the driving force in many landlord-tenant disputes.
Let’s start with an extreme example. During the height of the pandemic when landlords were already struggling with a lack of rental income because of eviction moratoriums, a disgruntled tenant intentionally and maliciously wasted thousands of gallons of water a day to ratchet up their landlord’s water bill. Our office successfully transitioned the tenant out for leaving the bathroom, sink, and bathtub spigots open, allowing water to flow continuously.
While this was an egregious case, it is more common that excessive water usage is owed to plumbing issues and leaks, as well as inefficient appliances.
Housing providers should recognize that a dripping faucet can squander hundreds of gallons per month and a single running toilet can waste up to 200 gallons per day. Pipe leaks, often obscured in walls or underground, can also cause excessive water usage.
Older toilets can also be a culprit by using 3-5 gallons per flush, compared to modern toilets that use 1.28 gallons or less. We distinctly remember the panic we caused by alerting owners of pre-1994 multifamily properties of the water conservation requirements of Senate Bill 407, making landlords scramble to be compliant with the new law or risk a knock on the door from the toilet police.
Inefficient showerheads, old dishwashers, and washing machines also consume significantly more water than energy-efficient versions. Long showers, especially in larger households, are also a factor. Not to mention frequent, small, or unnecessary laundry loads.
How can a landlord respond to a tenant’s unquenchable thirst for water? What responsibilities do landlords have when there is a leak?
Landlords cannot unilaterally impose arbitrary caps on water usage without following specific legal guidelines and ensuring transparency with tenants.
In the event of a water leak, they must follow specific procedures and timelines for investigation and repair, and the tenant's water usage charges are limited if the landlord fails to rectify the issue promptly.
Housing providers should understand that they have specific obligations regarding water usage and leaks.
According to California Civil Code § 1954.210, if a tenant notifies the landlord of a water leak or the landlord becomes aware of it, the landlord must investigate and rectify the condition if warranted. If the condition is not rectified within 21 days after the tenant provides notice to the landlord, the tenant's volumetric water usage is capped at $15 or actual usage.
If submeter readings are available, and the landlord chooses to use them, the tenant's water usage charges for the period starting 21 days after the initial investigation and ending when the repair is completed shall be capped at $0.50 per day or actual usage, whichever is less.
If the landlord is sleeping behind the wheel and fails to rectify the condition for 180 days, no further volumetric usage charges may be imposed until the condition is repaired.
What is the best "guesstimate" on what the water bill might be? The tenant should not get any surprises.
California Civil Code § 1954.204 requires landlords to disclose to tenants, before executing a rental agreement, that the tenant will be billed separately for water service and to provide an estimate of the monthly water bill. The landlord must also inform the tenant that they are required to notify the landlord of any leaks or water system problems, and the landlord must investigate and repair these issues within 21 days, or the water bill will be adjusted according to the law.
Notably, tenants are not allowed to remove any water fixtures or water-saving devices that have been installed by the landlord.
The particular client who broached this topic has rental units in San Francisco, so what does the city have to say?
We'll have to ascertain whether a leak is due to normal wear and tear or faulty plumbing. If so, the landlord is obligated to fix it without charging the tenant for excessive water use. Keep in mind that tenants may file a complaint with San Francisco's Department of Building Inspection if the reported leak is not fixed by the landlord.
However, if the tenant negligently causes the leak - breaking a pipe or leaving faucets running, for example - the landlord may charge them for the damages.
It's also instructive to take a look at the rental agreement. If the lease states that water is included but has "reasonable use" conditions, excessive water use could be considered a violation. Yet there may be crystal clear lease terms.
If water is included in the rental agreement, the landlord cannot suddenly impose arbitrary caps on water usage. The landlord may impose a cap on water usage in the sense that they can regulate and charge for water usage based on submeter readings and other specified fees, as long as they comply with statutory requirements regarding disclosures in the lease, calculation of bills, and limitations on charges.