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LANDLORDS' REPAIR OBLIGATIONS TO NONPAYING TENANTS

PETER MARK HEINTZELMAN, ESQ.

The last thing property owners want to hear from a tenant behind on rent, is to repair some apartment condition. "Why should I spend money I don't have to repair a broken door lock or leaky toilet if the tenant doesn't pay his rent?", or, "I know the tenant is complaining of conditions, but she's behind on rent, and I'm evicting her," are common remarks I hear from property owners. Understanding the often-times more expensive legal implications of not repairing substandard conditions existing in apartments, even apartments occupied by nonpaying tenants, is important to avoid getting trapped in worse financial disaster.

Some long enough time ago, the legislature and appeals courts rendered a series of legal precedent to establish the implied warranty of habitability upon all residential rental properties. Tenants' obligations to pay rent were dependent upon a landlord's duty to provide an apartment that would allow its use and enjoyment without interference of substandard conditions. In otherwords, if the landlord failed to keep the premises in good repair, the tenant could stop paying rent. At the same time, landlords WERE NOT relieved of their obligations to keep apartments in good repair when tenants stopped paying rent. In one case, decided by the Supreme Judicial Court, a landlord's financial problems were not a defense to quiet enjoyment claims of a tenant withholding rent. The sad but true cry of landlords that "I can't afford to do repairs when the tenant does not pay their rent," just doesn't fly.

The ramifications of landlords not responding to repair complaints, even from nonpaying tenants, is evident in the Housing Court. It is a frequent occurrence in housing court that, on the day of trial, the tenant will start alleging that the landlord has not been conducting requested repairs. Landlords repetitively deny notice of repair requests. Tenants are allowed to testify in most eviction trials, even if they never filed a written answer or counterclaim, about "bad conditions" in an apartment. If the court believes them, the court has allowed the tenants to use this evidence to defend an eviction, and many cases, the tenants not only have won the eviction, but walked away from the rent arrears owed to landlords . . who though they were safe . . ., because the tenant was behind on rent, or didn't complain about bad conditions until eviction trial day. Such presumptions can clearly be expensive.

So, how do property owners protect themselves? First, grab a copy of the state sanitary code, and inspect the apartment you are about to rent. If the apartment fails shy of code compliance, bring it up to code before you rent (the law prohibits agreements between landlord and tenant to a lower rent to take the apartment "as is"). Second, photograph the apartment to be able to prove it was in good condition when the tenancy begins. Third, use the security deposit "written statement of the condition of the apartment" form, even if you don't take a security deposit, and have the tenant sign off on that form at the same time you sign them up to a tenancy agreement; this form can then often become an admission of the tenant as to the apartment's move-in condition. Fourth, always timely respond to tenants' repair complaints, even if you think they are unjustified or even tenant-caused! This author has even gone as far to suggest to landlords that "If you wake up in the morning and dreamed your tenant complained of substandard conditions, you should knock on their door, make an appointment to view and repair, and then timely repair conditions which violate code. Fifth, keep your repair records and cancelled checks for payment, to be able to prove your timely response to repair complaints. Don't forget to bring all your paperwork to court for all court appearances; you often are denied a continuance to bring additional evidence forward.

Three other substantial considerations landlords need to make in these kinds of circumstances warrant mention:

Tenants who deny access to conduct repairs - If you have these kinds of tenants, and the repairs are of conditions which violate the state sanitary code, then if you can't work out an access agreement with the tenant, you can file an temporary restraining order/preliminary injunction complaint in the housing court, asking for the court's assistance to gain access to the tenant's apartment. It's a smarter route to travel than the dangerous route of testifying at time of eviction trial, "Well judge, I knew of the repair problems, but the tenant wouldn't let me in." Filing such a complaint in court has a $60 filing fee, and a hearing can generally be scheduled within a week!

Eviction day mediation considerations - Remember, then, that even if the first time you hear from a tenant about "bad conditions" is on trial date, while in mediation typically, that IF the court hears the tenants' complaints in trial, the court may believe the tenant, not you, that you knew of conditions in need of repair but did not attend to them, and may award the tenant damages accordingly. You could then lose the eviction. Just another consideration, then, for the property owner faced with the opportunities of settlement, albeit not under your desired terms, in the face of the fear of the alternative of trial; that public institution that transforms two parties going in thinking they are "right", into a winner and a loser coming out. (P.S. - the loser rarely thought they would lose!)

Financial skills - Landlords, then, who have obligations to repair, even when money is tight, even when tenants stop paying rent, end up "paying more" when repairs are not timely made. Landlords, then, have to collect enough monthly rent, not only to pay the mortgage, insurance, utilities, and taxes, but to have sufficient funds stashed away for the unexpected rainy day repair obligations they undertake in this form of investment.

Hey, by the way, keeping up with repairs builds good relations and improves your real estate investment values.