No escape from roof repairs?

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Jan. 3, 2011

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Rent it Right

Janet Portman
Inman News™

Q: I rent out the home that I inherited from my aunt. I cleaned the place after she passed and rented it out right away, but after a few months into a yearlong lease, the tenant told me about a serious roof leak. It's true, the roof needs to be replaced, but I can't afford it.

I know that the leak makes the rental unfit, but can't I tell the tenant that I'll have to let the place remain vacant for a while until I can afford to fix it? He's refusing to move, and says I have to fix it. –Glen R.

A: Your predicament illustrates the wisdom of the experienced landlord's rule to never rent out a property unless you're familiar with its existing "issues" and certain that it doesn't contain problems waiting to happen.

Your circumstances inspire empathy -- you don't sound like a slumlord, and you recognize that the problem is serious and renders the house unlivable -- but from your tenant's point of view, a deal is a deal.

Just as you can hold your tenant to the letter of the lease, requiring him to pay rent even if unforeseen and unavoidable circumstances (like a job loss or serious illness) intervene, you too are required to offer and maintain fit housing throughout the lease term.

Very few situations excuse your duty to maintain rental property.

Destruction of the property is the main one; obviously, if the rental is totally destroyed, you cannot be expected to rebuild it, presto.

But even here, when the destruction is a result of your negligence, and not an act of God or caused by someone else, you can end up responsible to the tenant for the "benefit of his bargain" (the difference between the rent for a comparable unit (if it's higher) and the old rent), plus moving costs.

Eminent domain (when the government takes your property to use for a public or quasi-public reason) will also excuse your duty to offer and maintain the property during the life of the lease.

No law that I've seen will excuse you from your duty to maintain the property during the lease due to pinched financial circumstances.

Depending on what your state law has to say, your tenant may, if you continue to refuse to make repairs, withhold rent or even use rent money to make repairs himself. If those remedies are available to him and he uses them correctly, you cannot evict him for failing to pay rent.

If the tenant can use "repair and deduct," you have a choice: Either use the rent money to repair the roof yourself, or allow your tenant to use it for you. Most property owners will want to control how and who does property repairs of this magnitude, so you'd be better off handling the job yourself, even if it means you have to take out a loan to get the work done.

Q: I am currently renting an apartment that the landlord doesn't have a certificate of occupancy for. He told me in order for him to get it that I would have to move all of my things out of the apartment, then I would be able to move back in the following month.

He had me sign a paper stating that I would vacate the apartment on the 31st of this month, which gave me only two weeks to leave; and that he would keep my security deposit for past due rent. I want to know my rights. --Tiffanye C.

A: There's a reason they call it a certificate of occupancy. This important piece of paper is what the building inspector gives the property owner when the inspector is satisfied that the unit measures up to local and state building standards. Until that certificate is firmly in hand, even owners who want to occupy the structure themselves have no legal right to do so. Owners who shortcut this step can face steep fines.

One of two scenarios is at play here: Your landlord wants you out of the apartment so that he can pretend, at the inspection, that no one has yet occupied it. Or, he has to do significant work on the unit in order for it to pass inspection, and needs you out so that he can proceed.

Let's consider the first, darker possibility. Your landlord needs your very willing cooperation if he's to pull off this stunt. Most people trying such a ploy would go out of their way to make this charade easy for you, by underwriting your moving costs, subsidizing your temporary digs, and so on. That your landlord is doing none of this, but instead using it as an opportunity to collect on back rent, is rather amazing. He has a lot to lose if you refuse to play ball.

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