Chapter 9 Landlord's Duty to Repair and Maintain the Premises

• Library: Every Landlord's Legal Guide (Nolo) (2020 Ed.)

CHAPTER 9 Landlord's Duty to Repair and Maintain the Premises

Your Duty to Keep the Premises Livable

Local or State Housing Laws

Court Decisions

What "Fit" and "Habitable" Mean

How to Meet Your Legal Repair and Maintenance Responsibilities

Comply With State and Local Housing Codes

Get Rid of Dangers to Children

Don't Allow Nuisances, Such as Excessive Noise

Consider Smoking Restrictions

Don't Try to Evade Your Legal Responsibilities

Tenants Have Maintenance Duties, Too

Repair What You Provide or Promise

Set Up a Responsive Maintenance System—And Stick to It

Avoiding Problems With a Good Maintenance and Repair System

Recommended Repair and Maintenance System

Resident's Maintenance/Repair Request Form

Tracking Tenant Complaints

Responding to Tenant Complaints

Tenant Updates and Landlord's Regular Safety and Maintenance Inspections

Tenant's Semiannual Safety and Maintenance Update

Landlord's Annual Safety Inspection

Tenants' Options When the Premises Are Unfit

Tenants' Responses to Unfit Premises: Paying Less Rent

Rent Withholding

Repair and Deduct

Your Options When a Tenant Withholds Rent

Tenant Responses to Unfit Premises: Calling Inspectors, Filing Lawsuits, and Moving Out

Reporting Code Violations to Housing Inspectors

Suing the Landlord

Moving Out

Minor Repairs

Building Codes

Landlord-Tenant Laws

Promises in the Lease or Rental Agreement

Promises in Ads

Promises Made Before You Rented the Unit

Implied Promises

Tenant Options If Landlord Refuses to Make Minor Repairs

Delegating Landlord's Responsibilities to Tenants

Do Not Delegate Responsibility for Major Repairs and Maintenance to the Tenant

How to Delegate Minor Repairs and Maintenance to Tenants

Compensating a Tenant for Repair and Maintenance Work

Landlord Liability for Tenant Repair and Maintenance Work

Tenants' Alterations and Improvements

Improvements That Become Part of the Property (Fixtures)

Responding to Improvement and Alteration Requests

Cable TV Access

Previously Unwired Buildings

Exclusive Contracts With Cable Providers

Hosting Competing Cable Companies in Multiunit Buildings

Satellite Dishes and Antennas

Devices Covered by the FCC Rule

Permissible Installation of Satellite Dishes and Antennas

Restrictions on Satellite Installation Techniques

Placement and Orientation of Antennas and Reception Devices

How to Set a Reasonable Policy on Satellite Dishes and Antennas

Supplying a Central Antenna or Satellite Dish for All Tenants

How to Handle Antenna and Satellite Dish Disputes

Emerging Technology

FORMS IN THIS CHAPTER

Chapter 9 includes instructions for and samples of the following forms:

• Resident's Maintenance/Repair Request
• Time Estimate for Repair
• Semiannual Safety and Maintenance Update
• Agreement Regarding Tenant Alterations to Rental Unit

The Nolo website includes downloadable copies of these forms. See Appendix B for the link to the forms in this book.

Landlords are required by law to provide rental property that meets basic structural, health, and safety standards. If your property falls short, tenants might have the legal right to:

• reduce or withhold rent
• pay for repairs themselves and deduct the cost from the rent
• sue you, or
• move out without notice and without responsibility for future rent.

Some states' laws are more burdensome for landlords than others. Regardless of how tough or lenient the laws are where you live, though, you're better off maintaining your rentals in a manner that goes beyond simply satisfying the law. You'll reap other, long-term benefits, such as:

Happy tenants. Tenants who live in safe and well-maintained rentals are likely to be satisfied and easy to deal with. They will stay longer, resulting in fewer interruptions of your income stream.

Better negotiations with tenants. Knowing that your housing complies with state and local housing codes, you can respond from a position of strength if a disgruntled tenant complains without grounds about a repair or maintenance issue. You can negotiate a reasonable solution with the tenant because you know you are likely to win if the dispute ends up in court.

Lower risk of lawsuits. You're far less likely to be sued by tenants for habitability problems or injuries resulting from defective conditions.

Cheaper insurance. A good record (no lawsuits, no housing code violations) can result in lower insurance premiums.

RELATED TOPIC

Related topics covered in this book include:

• Writing clear lease and rental agreement provisions for repair and maintenance: Chapter 2
• Setting valid occupancy limits: Chapter 5
• Delegating maintenance and repair responsibilities to a manager: Chapter 6
• Highlighting repair and maintenance procedures in a move-in letter to new tenants and using a Landlord-Tenant Checklist to keep track of the condition of the premises: Chapter 7
• Your liability for injuries caused by defective housing conditions: Chapter 10
• Your responsibility to clean up environmental hazards: Chapter 11
• Your responsibility for crime: Chapter 12
• Your right to enter rental premises for repairs and inspections: Chapter 13
• Inspecting the rental unit before the tenant moves out: Chapter 15
• How to negotiate with tenants over legal disputes such as rent withholding: Chapter 16
• How to research state laws, local ordinances, and court cases on repair and maintenance responsibilities: Chapter 18.

Your Duty to Keep the Premises Livable

You are legally required to keep rental premises livable. In most states, this requirement is called the "implied warranty of habitability." In other words, when you rent out a unit, you give the tenant an unspoken guarantee that it will be habitable for the duration of the tenancy.

Arkansas is the only state that doesn't formally recognize this warranty statewide, but many local health and safety laws (particularly in urban areas) impose requirements that in essence impose a requirement that landlords provide habitable rentals.

The implied warranty of habitability comes from either:

• local building codes or state statutes that specify minimum requirements for heat, water, plumbing, and other essential services, or
• widely held notions of what constitutes decent housing, derived from court opinions.

Unfortunately, in many states it's not clear which source (building codes, state statutes, court decisions, or even a mix of all of them) is the basis for the implied warranty. Why does it matter? Because the source of the warranty dictates both your responsibilities and the legal consequences of not following the law.

Finally, a quaint-sounding but still very powerful legal rule, the "implied covenant of quiet enjoyment," also contributes to your duty to offer and maintain fit premises. The law creates a covenant (a promise) between you and your tenants that you will not disturb their right to use the rented space peacefully and reasonably, and conversely, that you'll act in a way that enables peaceful use. Examples of landlord violations of the covenant of quiet enjoyment include:

• tolerating a nuisance, such as allowing garbage to pile up or a major rodent infestation
• failing to provide sufficient working electrical outlets, so that tenants cannot use appliances, and
• entering the rental unannounced or without adequate notice or reason.

The covenant of quiet enjoyment is not as far-reaching as the implied warranty of habitability. However, the remedies available to tenants when landlords breach them are substantially the same.

Local or State Housing Laws

In a few states, complying with applicable state or local housing codes is all it takes to satisfy the implied warranty of habitability. Landlords in these states enjoy the luxury of being able to look at the codes to learn their repair and maintenance responsibilities.

These codes regulate structural aspects of buildings and usually set space and occupancy standards, such as the minimum size of sleeping rooms. They also establish minimum requirements for light and ventilation, sanitation and sewage disposal, heating, water supply (such as how hot the water must be), fire protection, and wiring (such as the number of electrical outlets per room). In addition, the codes typically make property owners responsible for keeping common areas (or parts of the premises that the owner controls) clean, sanitary, and safe.

Substantial compliance with the housing codes (rather than literal, 100% compliance) is generally sufficient.

Court Decisions

In many states, the implied warranty of habitability is independent of any housing code. The standard is whether the premises are "fit for human occupation" or "fit and habitable." Usually, however, a substantial housing code violation is also a breach of the warranty of habitability. But even if you comply with housing codes, a court can require more of you.

Who Pays to Fix Habitability Problems? In most situations, landlords are responsible for remedying habitability issues throughout the tenancy when problems arise as a result of normal wear and tear or the actions of a third party, such as a vandal. But if a tenant's actions make the property unfit—for example, by severing the power supply to the furnace—the financial burden of repairs falls on the tenant. You remain responsible for seeing that the work gets done and the property is returned to a habitable state, but you could rightly bill the tenant for the repair. (Clause 11 of the form lease and rental agreements in Chapter 2 alerts the tenant to this responsibility.)

What "Fit" and "Habitable" Mean

You must always:

• Keep common areas, such as hallways and stairways, safe and clean.
• Maintain electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and systems, including elevators.
• Supply water, hot water, and heat in reasonable amounts at reasonable times.
• Provide trash receptacles and arrange for trash removal.

Additional responsibilities can depend on your circumstances. Here...