What to do when repairs are needed
What to do when repairs are needed
A. Types of repairs
There are three kinds of repairs that may be needed at a rental unit:
- those required by something the tenant caused to happen (like accidentally breaking a lamp or a window);
- those required by normal wear and tear (like a leaky faucet or a stopped up drain); and those involving the landlord's obligation to adequately maintain the property (like faulty plumbing or electrical wiring problems).
- The rights and obligations of the tenant are different for each type of repair.
1. Tenant-caused damage
Accidents will happen. If something breaks as a result of a tenant's negligence, or something goes wrong that is part of the tenant's responsibilities, the tenant will probably have to pay for the repairs. It is still a good idea to notify the landlord, because many landlords insist on controlling the repairs around their property. Often, lease agreements require notifying the landlord before doing any repairs. Also, if there is a dispute over whether a particular repair was needed because of the tenant's negligence or was the landlord's responsibility, the tenant will want a record of what happened. If the tenant does a repair with the landlord's permission, the landlord will later have a hard time saying that the tenant had no business fixing something without the landlord's consent.
2. Wear and tear repairs
Remember, the cost of wear and tear is the landlord's responsibility. If something needs repair simply because it is old or worn, the landlord should make the repair. Once again, the tenant should notify (preferably in writing) the landlord of any repairs needed by wear and tear. This will both provide the tenant with evidence that the landlord had notice that something needed fixing, and it will provide a record of wear and tear damage for the tenant to use if the landlord later claims the right to deduct such damage from a security or damage deposit.
Usually these kinds of repairs can be handled by agreement with the landlord. Either the tenant will get it fixed and give the bill to the landlord, or the landlord will have it fixed. Sometimes, the tenant will not care about the repair but will want the landlord to know that something is no longer working.
3. Material repairs
A "material" repair is one of the basic obligations of a landlord. For example, bad plumbing or a leaky roof is something that a landlord must fix and fix promptly, because they go to the health and safety of the rented property. The landlord's failure to do repairs that are material produce many of the conflicts that bring landlords and tenants into court. The next section will deal with the situation where important repairs are needed but are not immediately done by the landlord.
B. When the tenant requests repairs
1. Making a record of needed repairs
Whenever a major repair is needed, the tenant should notify the landlord or the landlord's agent in writing. Sometimes, a tenant will think that a repair is so obviously needed (like in the case of a leaky roof or bad plumbing) that it isn't necessary to put the request in writing. However, these are just the kinds of repairs that it is most important to request in writing, because if the repairs aren't made the tenant will want to take drastic action. The written notice is necessary before the tenant can terminate the lease, seek to use the remedy of rent abatement, or, in some cases, to defend against an eviction action for non-payment of rent.
When the tenant sends a repair notice to the landlord, it should say what is wrong, and it should ask the landlord to fix it (a sample letter demanding repairs is in the Appendix). If the landlord has an agent managing the property, the tenant should send the notice to the agent too. The tenant should always keep a copy of the letter or of any written note to the landlord or the landlord's manager. To be sure that the tenant can show that the landlord received the notice, it is a good idea to send it certified mail, return receipt requested. If that isn't possible, hand deliver it to the landlord or the manager in front of a witness that could testify in court if needed.
As part of the tenant record, it is a good idea to take pictures of the problem, so that the tenant will have evidence if the tenant has to go to court as a result of the landlord's failure to make repairs. The tenant should also show the problem to witnesses, who will be able to support the tenant’s argument that repairs were needed. It is best, however, to get an official report from an agency whose job it is to enforce housing and building codes.
2. Health and safety violations
If a new problem is not corrected immediately, or if the landlord has ignored the tenant's requests to have a long-term problem corrected, the tenant should write or call the local housing authority or local code enforcement office. The tenant should send the office any correspondence on the repair problem with the landlord and any notices the tenant has sent demanding repairs. The tenant has the right to contact code enforcement agencies, and if the landlord tries to evict the tenant for doing so, the landlord is acting illegally (see Chapter 9 in this guide on "retaliatory evictions").
In Albuquerque and many other cities, a tenant complaint will cause an inspector from the code enforcement office to come to the apartment or house and make an official record of the violations found. The official report will be made and filed with the code enforcement agency. The landlord will generally be ordered to make repairs. It is important to notify code enforcement if the landlord fails to comply with the order. The tenant can get a copy of the report as evidence, and the tenant will be able to use the inspector as a witness in court if that becomes necessary.
Code Enforcement Offices
- Albuquerque Housing Code Enforcement Division (505) 924-3850
- Bernalillo County Environmental Health Office (505) 314-0310
- City of Carlsbad Code Enforcement (575) 887-1191 ext. 199
- City of Clovis Code Enforcement (575-)763-9641
- City of Deming (575) 546-8848
- City of Gallup Code Enforcement (505) 863-1242
- City of Hobbs Code Enforcement (575) 391-8158
- City of Las Vegas (505) 454-1401
- City of Lordsburg (505) 542-3421
- City of Roswell Code Enforcement (575) 624-6700
- City of Santa Fe Code Enforcement (505) 955-6560
- County of Taos Code Compliance (575) 737-6445
- Dona Ana County Codes Enforcement (575) 525-1911
- Eddy County Code Enforcement (575) 887-9511
- Grant County Code Enforcement (575) 534-0830
- Las Cruces Code Enforcement (575) 528-4100
- Los Lunas Building Inspector (505) 839-3842
- Luna County Code Enforcement (505) 543-6620
- Rio Rancho Planning Zoning and Code Enforcement (505) 891-5926
- Santa Fe County Code Enforcement (505) 986-6225
- Town of Silver City Code Enforcement (575) 534-6344 or (575) 534-6367
- Town of Taos Code Enforcement (575) 751-2016
- Valencia County Code Enforcement (505) 866-2042 or (505) 866-2043
C. Tenant remedies
If a tenant has notified the landlord of a problem, and the landlord does nothing, the tenant will need to consider the remedies that the law allows.
1. Damages and injunctive relief
A tenant may sue the landlord for money damages for any failure of the landlord to perform his duties under the law or the rental agreement. Once the tenant has given the landlord notice of the failure (the law calls this a "breach"), and the landlord has not corrected the problem, the tenant has the right to go to court seeking damages. The tenant can raise a damage claim even when the tenant is sued for eviction. (See Chapter 16 of this guide on "Going to Court"). In addition, the tenant may sue for damages even if the tenant uses any of the other remedies available to him/her.
The tenant may also go to court to get an order forcing the landlord to make repairs or do any other act necessary to make up for the breach. This type of order is called "injunctive relief" and it is like a restraining order signed by a judge. If the landlord doesn't follow the order, s/he can be held in contempt of the court.
2. Termination of the tenancy
If the problem needing repairs is one that is a serious threat to the tenant's health or safety, the tenant may choose to move out. If the tenant chooses to do this, it will be necessary to give the landlord a written notice. The written notice must state the problem and make a demand that the landlord correct the problem within seven days. It must also state that if the problem is not corrected within seven days the tenant will terminate the tenancy and move out. If the landlord does not make a reasonable attempt to correct the problem within the seven day notice period, the tenant can consider the tenancy over and move out. The tenant is entitled to the return of all deposits and prepaid rent.
If the landlord does make a reasonable attempt to cure the problem within seven days, the tenant may not terminate the tenancy. However, the tenant may still be able to claim damages for any losses the tenant suffered from the time the tenant first notified the landlord of the need for repairs and/or get injunctive relief forcing the landlord to finish the repairs.
3. Rent abatement
When a landlord has failed to meet obligations under the law, and particularly when the landlord fails to make important needed repairs, the tenant gets less from the rental agreement than s/he is paying rent to get. The law has created a remedy to correct this situation, and it is called "abatement of rent." While this guide will use the term "abatement," because that is the word the law uses, the tenant should think of abatement as deducting a part of the tenant rent based on the reduced value of the rental unit due to the landlord's failure to make repairs.
To use the remedy of abatement, the tenant must be very careful. The tenant must give the landlord a written notice of the conditions that need to be corrected. These conditions must involve the landlord's basic duties to maintain the property and to keep the property up to the standards of the local building and housing codes. The notice does not need to say what the tenant will do if the repairs are not made, but it would be wise to state that the tenant intends to abate rent if the repairs are not done. If the tenant plans to move out if repairs are not made, the tenant should give notice of termination as set forth in the previous section of this guide, because a tenant may not both terminate the rental agreement and use the abatement remedy at the same time.
Once the notice has been given to the landlord, and s/he does not make the repairs within 7 days, the tenant may abate rent. While the law does not say how long the landlord has to make repairs after the tenant gives notice, it is wise to give the landlord seven days (just like in the termination situation outlined in the previous section of this guide). If the landlord has not made a reasonable effort to correct the problem within seven days, the tenant may abate rent starting from the date of the notice the tenant gave about the repair.
When the tenant abates rent, there are several things the tenant needs to think through in calculating the amount the tenant will abate. If the tenant cannot live in the rental unit because the problem is so bad, the tenant may abate 100% of the rent for each day the tenant cannot live there. If the tenant can live in the place, the tenant may deduct 1/3 of the daily rent for each day the repairs are not made. There is a Rent Abatement Worksheet at the end of this chapter.
Remember that a tenant usually pays rent in advance of the rental period. This is very important in dealing with abatement. Once the tenant gives the landlord a notice and the landlord fails to repair, the tenant will start figuring the abatement deduction. When it comes time to pay rent for the next month, make the rent payment after deducting the amount the abated rent from the last month. It is not wise to estimate how long it will take for the landlord to make the repairs, and abate the rent prospectively. If the landlord has committed to have the repairs done by a certain day, the tenant may figure the abatement amount up to that day and adjust the rent payment for the abatement. If the tenant doesn't know when the repairs will be done, the tenant will risk making too large a deduction if the landlord promptly makes the repairs. The best course to follow is to deduct the amount of rent that can be abated based on the prior month.
This is all somewhat complicated, but the tenant should remember that there are risks to withholding the rent. If the landlord moves to evict the tenant for non-payment because the tenant abated rent, the tenant will need to lay out why and how the tenant abated very clearly for the judge. If the judge sees the tenant has acted reasonably and carefully, and the tenant is not just using abatement as an excuse not to pay rent, the tenant will have a much better chance of having the judge find that the tenant paid the right amount of rent.
Even if the judge finds the tenant has not properly abated rent, if the tenant has acted carefully the tenant will be in a better situation to avoid eviction. The law allows a tenant who has abated rent to pay the amount deducted within three days of an order for eviction. If the rent is paid within that time, the eviction order will be set aside. It is therefore wise to hold any amounts the tenant has abated and not spend them until the matter of repairs has been finally settled.
D. Limitations on the landlord's duty to make repairs and the tenant's remedies
Remember that the landlord does not have any duty to make repairs due to something caused by the tenant's negligence or by the negligence of the tenant's family members or guests. None of the remedies discussed here cover that situation.
In addition, if the repairs needed in the rental unit are the result of circumstances beyond the landlord's control (for example, a flood or a fire), the tenant may not get damages or injunctive relief. The tenant may, however, abate rent or terminate the rental agreement as set out in the chapters on termination and abatement.