Tenant Alterations and Improvements
Lease agreements should always contain a clause prohibiting tenants from making alterations and improvements to rental property. A landlord’s concerns regarding tenant unauthorized alterations and improvements include issues of liability; health, safety, and security of the tenant and the neighboring tenants; building codes requirements; licensures and work permits; possible environmental impacts; and landlord habitability responsibilities by statute.
The lease clause must be detailed sufficiently to clearly and unambiguously cover liability and safety issues. The landlord has a duty of care for his tenants and must take all measures to protect the tenants and the rental premises. A sample clause might read:
“Except as authorized by statute or as authorized by the prior express written consent of Landlord, Tenant will not make any repairs, alterations, or improvements to the premises including but not limited to painting, carpeting, wallpapering, electrical or lighting changes, nailing holes in the wall, rekeying of locks, installation of new locks or installation or alterations of alarm systems.”
The lease agreement might also a notification clause such as:
Unauthorized Tenant repairs, alterations, and improvements are a material violation of the Tenant’s Lease Agreement and subject to lease default remedies as stated in the lease agreement.
Some standard lease agreements may also utilize a clause that states:
Tenant accepts the rental unit, fixtures, and furniture as is except for conditions materially affecting the health or safety of ordinary persons.
Despite lease language to the contrary, tenants do make material changes to their rental unit. Some tenants request permission for alterations, many tenants do not. Most commonly a tenant wants to:
- Upgrade or install additional exterior door locks
- Install a security system
- Upgrade lighting fixtures
- Paint interior walls or cabinets
- Replace flooring or carpeting in the unit
- Replace landlord supplied appliances with the tenant’s own appliances
- Install privacy fencing for a single family property or alter existing landscaping or green space for gardens or plantings
From the tenant’s viewpoint, these types of alterations are improvements, an upgrade to the rental unit/property for reasons of safety, security, or aesthetics. From the landlord’s perspective, the alterations and improvements are clear violations of the lease agreement, subject to the default remedies as detailed in the lease agreement, and are a disregard for the terms and conditions of the legal contract.
In some states landlord-tenant statutes provide tenant rights for repairs or alterations to the premises in certain situations. In these states tenants have a defined right to authorize emergency repairs if they are unable to reach the landlord in a timely manner in an event that threatens the immediate health and safety of the tenants or the rental unit is at risk without immediate repair. The lease agreement should clearly define what constitutes an emergency situation and provide guidance for acceptable tenant responses. Habitability issues regarding the provision of essential services for safe and sanitary housing are the landlord’s obligation by statute. States statutes specify the landlord’s responsibilities and duties for habitability issues and response times.
Fair Housing Act Right to Reasonable Modifications of Rental Unit
A landlord has a duty under the federal Fair Housing Act as amended to allow tenants with disabilities to make reasonable modifications of their living space or common areas at the tenant’s expense to the extent that is necessary for the tenant to comfortably and safely live in the unit.
A disabled tenant cannot modify the rental premise without the prior approval by the landlord and the proposed modifications cannot make the rental unit unacceptable to a future tenant. The tenant must agree to restore the rental unit to its original condition (undo the modifications) when the tenant moves out. Examples of disability modifications may include adaptive faucets or door/cabinet hardware or lowering kitchen countertops for wheelchair accessibility.
A landlord may ask the tenant to provide a reasonable description of the proposed modifications, proof that the modification will be done in a workmanlike manner, and require that the tenant obtain the necessary building/work permits before the work begins.
Tenant Requests for Alterations and Improvements
A straightforward request from a tenant for an alteration or improvement to the unit allows landlord and tenant to consider options to determine if the alteration or improvement could be allowed. A landlord should require tenants to submit written requests for alterations and improvements. A landlord may want to determine whether the improvement or alteration is work that could be easily undone (repaired or restored) when the tenant moves out. Another consideration might be whether the proposed improvement might add value to the rental unit. If the improvement is an object that the tenant wants to take with him/her upon moving out, the landlord and tenant must document their agreement in writing. The landlord might be receptive to approving an alteration if the tenant understands that he/she will be responsible for restoring the unit to its original condition at the end of the lease term. If the landlord deems the tenant’s restoration work is unacceptable under workmanlike standards, the landlord will deduct the costs of repairing or restoring the unit from the tenant’s security deposit.
The authorization agreement between landlord and tenant should be documented in writing with specifics regarding the scope of the work, material to be used, whether the alteration or improvement would be fixed (permanent) or portable and the terms of tenant reimbursement if any.
Fixtures
The lease agreement should define that any attachment to a building, fence, deck, or to the property grounds becomes a permanent fixture to the property. Absent lease language to the contrary or a documented landlord-tenant agreement returning specified objects to the tenant, the attached fixtures become the landlord’s property.
To help determine whether an object is portable or permanent, a court may look to the specifics of the issue, such as (1)whether the tenant received the landlord’s permission for installation or attachment of the object; (2) did the object require structural changes that affected the use and/or appearance of the unit/property; (3) did the installation of the object require firm attachment to the property using nails, screws, bolts, permanent bonding, or cement; and (4) what did the landlord and tenant intend to happen regarding the object.
Non-authorized Tenant Alterations and Improvements
Upon discovery or knowledge of unauthorized tenant alterations and improvements to the rental unit/property, a landlord must determine his course of action based upon his lease agreement terms and conditions and the specifics of the situation. Whether the landlord likes or dislikes the tenant’s alterations or improvements, the fact is that the tenant did not have permission to alter the unit/property and the tenant’s actions constitute a lease default. If the landlord does not address the issue of unauthorized alterations and improvements by enforcing the terms of his lease agreement for lease violations, tenants may take advantage of weak property management to violate other terms of the lease agreement.
Landlord Notifications
What a landlord should do is to notify the tenant in writing that the alterations and improvements made to the unit/property have been discovered, the alterations and improvements were unauthorized and no more alterations or improvement can be done. The landlord should reference the specific lease language that prohibits such actions and the consequences of the lease default. Landlord actions could be, depending upon the circumstances, a warning, a notice to cure or quit, an unconditional quit notice or if left uncured (the tenant fails to respond), legal action for eviction. The tenant may be held responsible for costs to restore the unit/property to the original condition and costs for such work may be deducted from the tenant’s security deposit.