Obligations of Landlords and Tenants for Safety, Maintenance & Repairs
Obligations of Landlords and Tenants for Safety, Maintenance & Repairs
Landlords and tenants both have duties in taking care of the rental unit and the areas around the rental unit. The Owner-Resident Relations Act contains some of these duties, and other duties are imposed by local housing codes or by the lease agreement.
A. Tenant obligations and responsibilities
1. A safe and clean place
The tenant's responsibilities to the landlord and to other tenants are based on the law, the rental agreement, and from the rules the landlord makes for tenants. When the tenant fails to meet these responsibilities, the landlord may end the tenancy and evict the tenant. The tenant also has responsibilities to other tenants so that they may enjoy a decent and safe place to live, and in certain cases the landlord may take action to protect the rights of the other tenants.
Beyond paying rent, the tenant's most important obligations are to keep the rental unit clean, safe, and free from unnecessary damage. The tenant is not responsible to pay for normal wear and tear on the rental unit while living in it. The tenant will, however, have to pay for repairs for any damage caused by the tenant's, or by guests', abuse or neglect of the rental unit.
In addition, local housing codes make rules for the use of property which add to the tenant's responsibilities. For example, the Albuquerque Housing Code prohibits: (1) unhealthy conditions in the residence, particularly in the bathroom and kitchen, which might cause disease, attract rodents, or breed insects; (2) dangerous structures or objects, especially those that attract children; and (3) overcrowding the residence.
The tenant is responsible for disposing of ashes, rubbish, and garbage in a clean and safe way. The landlord is responsible for providing the tenant with suitable containers and a means of disposal.
2. Complying with the rental agreement and the landlord's rules
The law makes the agreement between the tenant and the landlord a contract. Both the tenant and the landlord are normally required to live up to the responsibilities set out in their agreement. There are exceptions to this rule of law where the agreement contains illegal or grossly unfair ("inequitable") terms.
Similarly, if the landlord makes rules about the use of rental facilities, the tenant must follow the rules if they are fair, reasonable, and if the tenant gets a copy of the rules at the time the tenant enters into the rental agreement. If the landlord makes a new rule or changes a current rule after the tenant begins renting, the landlord must give the tenant reasonable notice of the rule change. Rule changes should not be made on less notice than the rental term (for example, seven days notice on a week-to-week, thirty days notice on a month-to-month), and the rule change must be in a written notice delivered to or mailed to the tenant. The rule change may also be posted, but if it is posted the landlord must also mail the notice to the tenant.
If the landlord makes a rule change (such as prohibiting pets or limiting access to certain facilities), that creates a major change in what the tenant agreed to initially, the rule change cannot be enforced against the tenant for the period of the lease.
There are other limits on the rules a landlord may make:
- The rules must be designed to improve the property's appearance, aid the tenants' safety, convenience, and welfare; or generally provide for equitable and efficient delivery of services to all tenants;
- The rules must be required to fulfill a reasonable purpose;
- The rules must apply to all tenants in a fair manner;
- The rules must be clear and understandable;
- The rules are not made for the purpose of avoiding the landlord's legal obligations.
3. Allowing access to the rental unit
A tenant must allow the landlord to have reasonable access to the rental unit in order to perform the landlord's duties. However, a landlord may not abuse this right of access, and the law has placed some restrictions on a landlord's right to enter the rental unit.
The law allows the landlord entry to inspect the unit, to make necessary and agreed upon repairs, to decorate, to make alterations or improvements, and to supply necessary or agreed upon services. The law also allows the landlord to enter the unit to show it to someone who plans to buy or rent the property. The landlord may also bring in contractors or workers when the landlord properly enters the rental unit.
In order for the landlord to enter the rental unit to do any of the work listed above, the landlord must give the tenant notice. Unless the landlord and the tenant agree to less notice, the landlord must give twenty-four hours written notice to the tenant in order to enter the rental unit. The notice must tell the tenant what time the landlord will be entering, how long the landlord will be inside, and why the landlord will be going in.
The landlord does not need to give the twenty-four hour notice if the entry is to perform repairs or services that have been requested by the tenant within the past seven days, or when the landlord is with a public official conducting an inspection or a utility company representative or cable TV installer.
The rental agreement may provide for other specified conditions that require the landlord to enter the tenant's rental unit. The rental agreement may not, however, take away the notice rights of the tenant. The law does recognize that the landlord and the tenant may, from time to time, agree to other arrangements. For example, a tenant may agree to let the landlord in on less than twenty-four hours notice, and the landlord may give the tenant options about the most convenient time to have the gas man look over the apartment.
While the law allows the landlord and the tenant to work entry problems out, there are some times when a landlord's right of entry isn't open for negotiation. The landlord has the right of entry without any notice in case of an emergency, or when the tenant has been gone from the rental unit for more than seven days without telling the landlord. If the tenant refuses to let the landlord in when the landlord is acting properly, the tenant's denial of access is a violation of the law. The landlord may terminate the tenancy, get a court order to enter the rental unit, and sue for damages.
If the tenant feels that the landlord is entering the apartment unreasonably, the tenant should seek legal advice. This is one area where a simple misunderstanding might lead to a very real dispute. If the landlord abuses the right of entry and is interfering with the tenant's right to peaceably occupy the rental unit, the tenant can also terminate the tenancy and go to court. The tenant can get an order keeping the landlord out and sue for damages.
4. Informing the landlord of the tenant's absence for seven days or more
As we discussed in the section on entry, if the tenant is gone for more than seven days without telling the landlord, the landlord has the right to enter the apartment. There are good reasons to tell the landlord about an absence. Some of these reasons are practical and help the tenant. Other reasons include the tenant’s right to have a place to stay and what happens to the tenant’s property.
1. First, the rental agreement may require the tenant to notify the landlord if the tenant is going to be gone for some period of time. If the tenant doesn't notify the landlord, the tenant will have broken the rental agreement and may be subject to having the tenancy terminated.
2. Second, it is a good idea to let the landlord know the tenant will be gone, because s/he will know to watch the rental unit for vandalism, fire, freezing pipes, and to be aware that the tenant’s property is more vulnerable to burglars. The tenant’s chances of having insurance cover any losses that occur to the tenant’s property may also be affected by whether the landlord was informed about the tenant’s absence.
3. Third, the law states that if the tenant is behind in the rent and is gone for more than seven days without telling the landlord, the tenant has abandoned the rental unit. Once the tenant has legally abandoned the unit, the landlord can treat the tenancy as over and re-rent the apartment. The landlord can also store and sell any property the tenant leaves in the apartment, subject only to the tenant rights to claim the property from storage. (See Chapter 10, "The Tenant's Property").
5. Using the rental unit as a residence
Unless the landlord agrees that the tenant may use the rental unit for purposes, the tenant may only use it as a residence. For example, if the tenant plans to rent a place to use for a business, the tenant must discuss that with the landlord. If the tenant runs a business from the rental unit without the landlord's permission, the tenant could be in violation of the rental agreement.
The issue of whether the tenant is maintaining a residence is also very important when the tenant rents a room in a hotel or a motel. If the tenant is going to be living there, rather than just staying for a time, it is important that the tenant let the landlord know. If the owner doesn't rent for residential purposes, the occupant has no rights under the landlord tenant laws. However, there are many hotel/motel owners who do rent to people they know are residents, and they take rent for more than a week at a time. These owners, however, like to avoid the obligations the law places on landlords, and they may try to claim that the tenant is not really a tenant. Be careful in such situations, and take steps to make it clear to the owner that the tenant intends to reside in the place.
6. Obligations to neighbors--illegal conduct
The tenant has a duty not to disturb a neighbor's peace and quiet. This duty prohibits such disturbances as those caused by excessive noise, inconsiderate visitors, and uncontrolled pets. Also, while a landlord may not refuse to rent to the tenant because the tenant has children, the tenant must still be sure that s/he supervises his/her children so that they do not unreasonably bother other tenants. The tenant must also conform to any rules of a joint housing unit or neighborhood association where the tenant lives.
This duty to neighbors is important under the Owner-Resident Relations Act. The law states that if a tenant knowingly does certain acts (or allows others in the tenant's unit to do certain acts) which are against the law, the tenant may be evicted with very little notice. A tenant may be quickly evicted if the tenant allows:
• drug use or selling on the premises;
• uses, or allows someone else to use, a deadly weapon (except in self defense);
• sexual assault or sexual molestation of another person;
• theft or attempted theft of the property of another person;
• intentional or reckless damage to property in excess of $1,000;
• is involved in committing any other serious crime at the apartment complex or property.
A tenant does not have to be convicted of a crime to face eviction under this "substantial violation" provision of the law.
The only general exceptions to the "substantial violation" prohibition are where the tenant is the victim of the illegal conduct or where the tenant does not know about the conduct and has not done anything to allow the illegal conduct. It is important to remember that this part of the law applies to a tenant's guests and others living in the unit with the tenant. Each tenant thus has a personal responsibility to control the conduct of people in his/her rental unit. Under the law, it is possible that the tenant and the tenant's family may be faced with eviction if only one person is involved in the illegal conduct.
Conduct that occurs on the premises, or within 300 feet of the premises, can be the basis of a termination for substantial violation.
There is a special exception for victims of domestic violence. If a spouse or parent abuses his/her partner or children, the family may not be subject to eviction for that conduct. This part of the law will usually only protect the tenants if they get a domestic violence order against the abuser. If the tenant is the victim of domestic abuse, the tenant should seek legal advice immediately, both because of the abuse itself and because it may have an effect on the landlord-tenant rights. There is also an exception for self defense. If the landlord tries to evict the tenant for conduct that was domestic violence or in self-defense, it is very important that the judge knows what happened.
Because the landlord has the right to terminate the tenancy on only three days notice where such serious violations occur, the law has several important tenant protections. If the landlord tries to use this section to evict a tenant, the landlord must give a very specific notice of what the bad conduct was, explaining exactly when and where the bad conduct occurred. If the landlord has no real basis for seeking an eviction for a "substantial violation,” the tenant may be awarded a civil penalty in a court action equal to two times the monthly rent. For example, if the landlord simply claims that someone was selling drugs in a tenant's apartment without any real evidence, the tenant might be entitled to in the apartment and receive an award of damages.
This section of the law is there to protect innocent people, so that they can live in decent and safe places. If the tenant suspects that a neighbor is involved in illegal activity, the tenant should call the police. At the same time, the tenant should let the landlord know about the conduct.
7. What will happen if a tenant fails to live up to his/her obligations
Depending on the type of violation, the tenant will get a notice. Again, the type of violation affects the number of days' notice the tenant is entitled to and what the tenant can do to cure the problem described in the notice.
a. Failure to pay rent
If the notice is for a failure to pay rent, the tenant will have three days to pay the rent. If the tenant does not pay the rent in three days, the tenancy will end. Then the landlord may go to court to evict the tenant. This type of notice may be hand delivered to the tenant or posted.
b. Seven day notice of lease violation
If the notice is for a failure to live up to obligations under the agreement, failure to follow the landlord's rules and regulations, or for failure to perform duties the law requires of tenants, the landlord must give a Seven Day Notice of the problem. The notice must clearly set out the problem (including dates and specific facts), so that the tenant can have the chance to "cure" (fix) the problem. The Seven Day Notice of violation must be given within thirty days of when the problem occurred or the landlord learned of it.
If, for example, the landlord claims that the tenant has a junk car on the property, and the rules prohibit inoperable vehicles, the tenant should get a notice of this violation. The tenant will have seven days from getting the notice to either fix the car or move it. If a tenant does not fix the problem within the seven days, the tenancy will end and the landlord can then go to court for an eviction. The landlord will have to prove that the tenant violated the lease and that the seven day notice was properly given. The tenant would need to prove that s/he did not violate the lease, that the Seven Day Notice was inadequate or that the problem was fixed. If the tenant does fix or "cure" the problem, the tenancy will not end. But, if there are any other problems within six months after the first notice, the landlord can give a second Seven Day Notice. The tenant does not have the right to fix the problem in the second notice, and after seven days the tenancy will end. If there are no problems for six months after the first notice, then the next notice the landlord gives the tenant is treated as a new first notice. The tenant then has the right to fix the problem and stay in the rental unit.
Remember that the Seven Day Notice is for "material" (important) failures to live up to the tenant obligations. If the tenant feels that a landlord is simply sending the notices to harass the tenant, and the problems raised in the notice are minor things, the tenant should seek legal advice.
A Seven Day Notice must either be delivered to the tenant personally or mailed to the tenant. If the notice is posted, it must also be mailed to the tenant in order to be effective. However, if the notice is posted, the date of posting will start the seven days running, not the date the tenant
receives the notice in the mail.
c. Three day notice of substantial violation
If the landlord claims that the tenant, or someone living with or visiting the tenant, has done something that would be considered a serious crime (a "substantial violation"), the landlord can end the tenancy with a ThreeDay Notice of Substantial Violation. With this kind of notice, the tenant has no right to "cure" (for example, telling the landlord "it will never happen again"). If the tenant receive this type of notice, it is very important to immediately get legal advice.
A Three Day Notice of Substantial Violation must be hand delivered to the tenant or mailed to the tenant. As with a seven day notice, if the notice is posted it must also be mailed. The date of posting, not the date the mail is received, will be the date that the time in the notice starts running. Once the three days are up, the landlord can file an eviction action in court to get possession of the rental unit.
There are similar issues presented by such violations in public housing. Ordinarily, a public housing tenant is entitled to a grievance hearing before the housing authority may seek to evict the public housing tenant. However, evictions for criminal activity that is drug-related or threatens the safety of other tenants or housing authority employees may be exempt from the grievance procedure. In those cases, the housing authority may go directly to the local court process to evict. Check with HUD or an attorney to determine whether the tenant housing authority is exempt from the grievance procedure in those cases.
8. Notice of termination generally
Except in rental agreements in mobile home parks and in fixed term leases, a landlord may terminate a tenancy without giving a reason using a Thirty Day Notice (or one week notice in a week-to-week tenancy). If the tenant has a month-to-month tenancy, the landlord must give the tenant notice of termination at least thirty days before the beginning of the next full month. In a fixed term lease, the landlord does not have to give notice of termination, unless the lease provides that it will automatically renew unless terminated. Leases often will state that the landlord and the tenant must give a thirty day notice if the lease will not be renewed.
In the case of mobile home parks, a notice of termination must be "for cause.” This means that a mobile home space rental agreement cannot be terminated just because the initial lease term has ended or because it is a month-to-month tenancy.
Subsidized housing tenants may have additional rights. See Chapter 14 of this guide for more information on the rights of rent-assisted an public housing tenants. Landlords can decide not to renew Section 8 leases and the tenant must move or can be evicted.
Notices of termination must be hand delivered or mailed to the tenant. If the notice is posted, it must also be mailed. However, the date of a posted notice starts the time in the notice running, not the date the mailed notice was received by the tenant. There are times when a landlord is upset with a tenant because the tenant has exercised certain rights, and the landlord will send the tenant a termination notice. This type of landlord action may be what the law calls “retaliation.” Such actions are illegal, and there are specific provisions of the law protecting tenants against retaliation. (See the section of this guide on "Retaliatory Eviction" at Chapter 9).
9. When the time on notices runs out
Because notices are important in creating a landlord's right to terminate a rental agreement, it is important to know when the times in these notices start and end. As we have seen, the time required for a notice begins running when it is delivered or mailed to the tenant. Most landlords will post notices, i.e., tape the notice to the tenant’s door. Remember that even when the posted notice is also mailed, it is the date that the notice was posted that starts the time running. If the last day of a notice falls on a weekend or a federal holiday, its effective ending date will be the next day that is not a weekend or a holiday.
For example, if a Three Day Notice for Nonpayment of Rent is posted on the tenant’s door on a Thursday, the third day for paying the rent would be Sunday. Since Sunday is a weekend, the tenant would have until Monday to pay the rent.
In any situation where the landlord has terminated the tenancy, the tenant can voluntarily move out or stay in the rental unit and see if the court will order the tenant to move out. If the tenant does not move out voluntarily, the next step will be the court action for eviction. A landlord may not try to remove a tenant from a rental unit without getting an eviction order from a judge unless the tenant has abandoned the unit. Sometimes, landlords try to force a tenant out without going to court, but this type of self-help is illegal. (See Chapter 9 on "Lock-outs").
Court actions for eviction are serious lawsuits, and the tenant should seek legal advice if the landlord has terminated the tenancy and the tenant does not wish to move. The tenant should also review the section in this guide about "Evictions" at Chapter 9.
B. Landlord obligations and responsibilities
The responsibilities in a landlord-tenant relationship are not just the tenant’s. Landlords have very real duties, and tenants have rights to enforce. The landlord's most important duty is to maintain the property the tenant is renting so that the property will be a safe, decent, and healthy place for the tenant and his/her family to live.
1. Basic responsibilities
A landlord must at least do the following things:
• Make repairs and do whatever is required to put and keep the property in a safe condition;
• Maintain in good working order all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances supplied, or required to be supplied, by the landlord;
• Provide and maintain containers for the removal of ashes, garbage, rubbish or other waste, and to arrange for their removal;
• Supply running water and a reasonable amount of hot water at all times, unless the tenant is responsible for the water bill
• Supply heat, unless this is under the tenant's exclusive control (for example, where the tenant is responsible by agreement separately to contract for and to pay for gas and electrical utilities).
2. Local housing codes
In addition to the basic landlord responsibilities set out above, local housing codes also impose duties on landlords that tenants may enforce. For example, in Albuquerque the city housing code requires landlords to ensure that:
- Public or shared areas are in a clean, sanitary and safe condition;
- Insect and rodent infestations are prevented (where such infestations occur, the landlord is responsible for extermination unless the tenant is the cause of the infestation); the landlord is always responsible for extermination when an infestation is caused by the landlord's poor maintenance, or is in the common areas of an apartment building;
- General dilapidation is prevented by regular maintenance;
- The foundation, floors, walls, ceilings, and roof are reasonably weather-tight, rodent-proof, in good repair, and are capable of affording privacy to the tenants;
- The windows and doors are reasonably weather-tight and rodent-proof, and are kept in sound working condition
- Stairs and porches are safe to use and capable of supporting the load that normal use requires;
- Bathroom and toilet compartment floor surfaces are reasonably resistant to water absorption and capable of being kept clean;
- Any appliances or fixtures supplied by the landlord (such as a stove, refrigerator, or hot water heater) are in safe working condition. Under the Albuquerque Municipal Code, the landlord must also provide the tenant with:
to 70 degrees);
an adequate toilet, sink, and bathtub (or shower);
an adequate (non-absorbent) kitchen sink;
hot (110 degrees) and cold running water to appropriate plumbing fixtures;
working windows or other ventilating equipment;
electrical outlets and lighting fixtures;
adequate sewage disposal connections.
The requirements in the Albuquerque code may not be the same in your local housing code, but most cities and towns have some local laws setting housing standards. The tenant should check to see what the local code requires, because the landlord will be required to maintain the property up to that standard.
If a tenant lives in an apartment where there is a problem with any of the things a landlord is required to maintain, the tenant has a right to request that necessary repairs be made. Sometimes, a simple request will do the trick. However, it occasionally happens that the landlord will ignore the tenant requests, and the tenant will need to do more. Requests for repairs should be made in writing and a copy kept. If the landlord refuses to make necessary repairs, the tenant will have to think very seriously about enforcing the tenant rights to have repairs done. (See Chapter 8 of this guide on "What to do when repairs are needed.")
4. Written rental agreement
The law requires landlords to give the tenant a written contract containing the rental agreement. Unfortunately, some landlords do not live up to this requirement. As we have stated earlier in this guide, the tenant should insist on a written agreement when the tenant move in. If the landlord won't give the tenant a written agreement, the tenant should think seriously about looking for another place.
If the tenant does not have a written agreement with the landlord and the tenant finds herself in a dispute with the landlord, seek legal advice immediately.
5. Quiet enjoyment
"Quiet enjoyment" means a lot more than limited noise. It means that when a tenant rents property, the tenant has a right to reasonably use the property. While the tenant must give the landlord access to the tenant rental unit for certain purposes, the landlord has no right to interfere with the tenant’s privacy by entering the rental unit whenever he/she chooses (see Chapter 7 of this guide on "allowing access to the rental unit" ). The landlord may not lock the tenant out of the rental unit (see Chapter 9 on "Lock-outs"). The landlord may also not make rules and regulations that are unreasonable and that unreasonably limit the tenant’s use of the rental property (see Chapter 7 of this guide on "complying with the rental agreement and the landlord's rules").