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Montecito: What leasing laws say about paying rent after disaster




MONTECITO, CA - JANUARY 11:  An urban search and rescue team member walks by a home that was destroyed by a mudslide on January 11, 2018 in Montecito, California. 17 people have died and hundreds hundreds of homes have been destroyed or damaged after massive mudslides crashed through Montecito, California early Tuesday morning.  (Photo by Justin Sullivan/Getty Images)
MONTECITO, CA - JANUARY 11: An urban search and rescue team member walks by a home that was destroyed by a mudslide on January 11, 2018 in Montecito, California. 17 people have died and hundreds hundreds of homes have been destroyed or damaged after massive mudslides crashed through Montecito, California early Tuesday morning. (Photo by Justin Sullivan/Getty Images)
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As Montecito residents work to put their lives back together, some people in the area are dealing with an unexpected problem: How to pay their rent in the mudslides' aftermath.

"If the property has become not livable, the term is 'uninhabitable,'" said John Thyne III. Thyne is a real estate broker, attorney and professor of law based in Santa Barbara. After the Thomas Fire and last week's mudslides, he's helped people in the Montecito community figure out what the law says about renting after a disaster.

"If  [the property] is totally or partially uninhabitable, the tenant is, generally, excused from the payment of rent from the time that it becomes uninhabitable until the tenant is able to take up habitation in the property again."

Determining whether you have to pay rent after a disaster depends on what your lease says

"In every situation, we want to look specifically to the language of the lease. Because the lease is going to create the contract and the contract is the universe within which the parties will operate. But you look at the language of the lease and if it has the term, as the California Association of Realtors lease does, that says, 'What happens in the event of a disaster,' you want to look specifically to that."

Whether or not it makes a difference that someone's property was in a mandatory or voluntary evacuation area

"The question is one of habitability. The evacuation orders can be some evidence of uninhabitability. It would be the argument of the tenant: 'Hey, during the evacuation order, I could not access the property, therefore I could not habitate within it.'"

What landlords can do if their tenants are unable to pay their rent

"Both the landlord and the tenant have the right to terminate the lease if the property has been damaged, as described by the lease. And we've done that a few times already this week. If you're the landlord and you have a property insurance policy that covers a rental, and you have a policy specifically noting that you have tenants in that property, the landlord will receive lost income as one of the damages that are paid under the policy. We've had quite a few homeowners that live out of the area and have been using their homes in Montecito as rentals, and now they've been completely destroyed and that is the claim we're making for them among the others." 

Answers have been edited for clarity