Maintenance Responsibilities Between Landlords and Tenants
Define Maintenance Responsibilities
A good lease agreement will spell out landlord and tenant responsibilities regarding maintenance issues in detail. Failure to adequately address these issues within the agreement can lead to erroneous assumptions as to which party is responsible for specific maintenance issues and result in landlord-tenant conflicts and/or damages to the landlord’s property due to failure of the tenant to perform certain maintenance tasks.
Without adequate definition of responsibilities, tenant failure to perform maintenance, for which the tenant can legally be made responsible and for which the landlord had assumed the tenant had been made responsible, could result in claims of non-habitability being filed against the landlord with government agencies or in court even though the tenant had accepted the responsibility. Although the landlord may prevail in defending against such claims, it can require significant time and money to deal with them.
In this article we will discuss nine of the more common maintenance issues that should be covered in the lease agreement.
Appliances
If a landlord has a choice because the state where his rental property is located has no statute against such doing so, the easiest and safest way to avoid appliance maintenance problems is to not provide any appliances, requiring the tenant to furnish his own. However, such a policy will drastically reduce the pool of potentially qualified applicants for a vacancy. A majority of tenants own no appliances and many are financially unable to purchase appliances in addition to the security deposit, first month’s rent, utility service turn-on deposit, moving costs, and various other costs of changing residence. Those applicants who do not have a problem with the cost would still prefer to rent a home that includes appliances.
Furthermore, for many rental properties, particularly those that are newer or upscale, most appliances are built-in, requiring the landlords to consider appliance maintenance issues whether they want to or not.
Unless prohibited by law, as is the case in some jurisdictions, landlords can make the tenant responsible for repair of appliances even though they belong to the landlord. However, many tenants will rebel at the idea that they will be responsible for repairing old appliances when they have no idea of the risk they would be assuming. Even when they do not object when signing the lease agreement, they will likely do so if and when an appliance needs an expensive repair. Taking the matter to court may result in the judge deciding it was an unreasonable and unfair lease clause in the first place.
The bottom line is that it is usually best for the landlord to retain responsibility for appliance maintenance except for repairs required due to damage resulting from tenant negligent or misuse actions.
Broken Windows
Units should have no cracked or broken window panes at the time a new tenant takes possession. The lease agreement should make the tenant responsible for replacing panes cracked or broken during occupancy. In order to avoid arguments regarding fault, the agreement should make it clear this responsibility holds no matter what the cause of damage.
Clogged Plumbing
The lease agreement and/or the move-in checklist should state that the tenant acknowledges that all toilets flush properly and all sinks, showers, and tubs drain properly at the time of moving in. Landlords sometimes make the tenant responsible for repairing running toilets and leaky faucets, but requiring or even allowing tenants to make plumbing or other repairs requiring some technical knowledge and experience can either result in failure to make needed repairs or additional cost to the landlord due to improper repairs, either of which can result in costly damages.
The lease agreement should make the tenant responsible for the items if they become clogged during the period of tenancy due to misuse, except that the landlord will be responsible for problems that occur outside the walls of the building.
Heating/Cooling Filters
In general, although rental units of all types should be equipped with new heating/cooling system filters when a new tenant moves in, tenants can usually legally be made responsible for replacing dirty filters.
However, because (1) dirty filters can result in costly equipment repairs and basic replacement filters are relatively low cost and (2) tenants cannot usually be depended upon to buy and change filters, at least until so dirty that equipment ceases operating, it is almost always best for the landlords to replace filters as part of regularly scheduled filter-change visits or better yet, the regular periodic inspections that should be provided for in the lease agreement.
Regular visits for filter changing, as is the case for more complete regular inspections, have numerous other advantages. Such visits allow the landlord to inspect the property regarding a variety of maintenance issues, including those that may not be reported by the tenant but could become costly for the landlord if not taken care of. However, having more formal periodic visits specifically for the purpose of inspection is better because the landlord will have more freedom to rigorously inspect than doing so when the supposed purpose of the visit is to only change out filters. Any interaction with the tenant, including only replacing filters, (1) allows landlords to reinforce their concern for the tenant’s comfort, safety, and security and (2) protects the landlord’s rental investment property.
Periodic inspections can also result in catching other problems which might require a warning notice, a decision to not renew a lease, or an immediate eviction. Issues sometimes uncovered during inspections include (1) undisclosed pets or particular pets prohibited by the landlord or by the insurance policy, the latter being potentially worse because it might eliminate landlord protection upon damage or injury to other tenants or to the general public, (2) poor housekeeping to the degree that it can cause damage, (3) conditions that attract insects, mice, roaches and other vermin that can become an expensive problem, (4) unusually hard use by the tenant that is causing significantly more damage than “normal wear & tear,” (5) smoking in “smoke free” units, (5) smoke and carbon monoxide detectors with dead batteries, (6) unreported maintenance problems when (a) the problems increase landlord operating expenses (e.g., running toilets, leaky faucets when water cost is paid by the landlord) or (b) the problems may become very costly if left uncorrected (e.g., leaking roofs or leaking plumbing under sinks) , (7) evidence of illegal drug use (resist the temptation to look into closets or drawers), (8) improper storage of dangerous chemicals, and (9) tenant-caused conditions that are potentially dangerous such as storing flammables near a gas appliance.
Landscaping Care
For a multi-family building, the tenants will always assume that the landlord is responsible for maintaining landscaping, including mowing the lawn. Accordingly, the lease agreement should specifically state that to be the case. If units of a multi-family building have private enclosed landscaped areas, the landlord can usually require the tenant to maintain those areas. However, it is usually to the landlord’s advantage to assume responsibility for those areas even if not required by law. The main advantage is that maintenance will be adequately performed. However, if the tenant is paying for water and//or electrical services the lease should require the tenant to not modify sprinkler timer settings.
For single-family homes, the tenant can be made responsible for any or all landscaping maintenance. However, as mentioned in the preceding it may be to the landlord’s advantage to take responsibility in order to adequately maintain lawn and planting areas. This is particularly true when it is expected that the tenant will not have the tools and equipment to accomplish the work (e.g., no equipment to mow).
Whenever the lease agreement makes the tenant responsible for adequately maintaining landscaping, the agreement should include a clause that gives the landlord the right to perform the maintenance and bill the tenant for it if the tenant fails to adequately maintain it after having been notified by the landlord of the default.
Light Bulbs
In general, although rental units of all types should be fully equipped with light bulbs at the time a new tenant moves in, the lease agreement should make the tenant responsible for replacing light bulbs during their occupancy and require that all fixtures having operating bulbs when the tenant vacates the property.
Pest Control
The landlord must usually accept responsibility for most pest control issues related to multi-family buildings. This is primarily because most pests usually migrate from one unit to another and the only effective way to control the pests or to eradicate them when they exist is to treat the entire building.
In most jurisdictions, the tenant of a single-family residence can be made responsible for needed pest control. However, this requires that the property be pest-free when the tenant moves in and that the tenant deals with pest problems that occur during his/her tenancy.
Pools & Spas
Of course, the landlord of multi-family buildings will accept responsibility for servicing and for all repairs of pools and spas. For single-family homes the tenant can be made responsible for pool and spa servicing and for repairs if the tenant is willing to accept the risk associated with repair responsibility even though he/she has no way to know the condition of the expensive-to repair/replace equipment associated with pools and spas at the time of signing the lease agreement. Furthermore, to avoid the potentially serious problems that can result from inadequate servicing of the pool or spa, it is usually best that service be provided by the landlord or by a vendor of landlord’s choice, with the rent set accordingly.
If, for some reason, providing adequate service is made the responsibility of the tenant, the lease agreement should adequately define the type of services to be performed, including perhaps even the required vendor to be used, as improper maintenance can be costly.
Smoke/CO Detectors
In general, although rental units of all types should be fully equipped with the required number of smoke detectors and carbon monoxide detectors in the required locations in accordance with all laws relevant to the location of the rental units, the lease agreement should make the tenant responsible for replacing batteries during tenancy.
However, if the landlord or his agent becomes aware of an inoperative detector when performing unrelated maintenance work or during a regular inspection, the landlord should either give written notice of the defect, reminding the tenant of his responsibilities, or remedy the problem at the landlord’s expense. I would recommend the latter, following it up with a notice that the defect has been corrected for the tenant’s protection. The cost of a replacement battery is extremely small compare to the cost of defending against a lawsuit in the event of damage, injury, or death resulting from inoperative detectors.
Maintenance Vendor Information
At the time of lease signing, lease agreement maintenance responsibilities should be discussed so that the new tenant fully understands what each party is responsible for. The new tenant should also be provided with list of phone numbers of services that they may need. This can include utility services they want to obtain (e.g., electricity, gas, water/sewer, cable TV) for moving in, emergency numbers (e.g., fire, police, ambulance/paramedic), and maintenance vendor numbers. If the landlord wishes to designate a representative with authority to deal with emergency maintenance issues when the landlord is not immediately available, the name and contact number for that representative should be provided.
Maintenance vendor numbers might include both those of approved vendors that the tenant must use for maintenance that is the tenant‘s responsibility (e.g., plumbing for clogged drains/toilets, pest control, broken windows) and those the tenant must use in an emergency for issues that are the landlord’s responsibility (e.g., heating/cooling, backed-up sewer, roof leaking, broken sprinkler line) if unable to reach the landlord or landlord’s designated representative. The lease agreement should also include the requirement of using the provided landlord-approved vendors under the two stated circumstances.