You are responsible for the repairs under the implied warranty of habitability. If your tenant believes that there are repairs needed to be made, they need to notify you and give you an opportunity to have the repairs made. If you choose not to make the requested repairs, and do not provide a good reason for not doing so, your tenants have several remedies available to them, depending on the seriousness of the repairs. One of the most common remedies is the commonly referred to as the “repair and deduct” remedy.
The “repair and deduct” remedy allows a tenant to deduct money from the rent, up to the amount of one month’s rent, to pay for repair of defects in the rental unit. This remedy covers substandard conditions that affect the tenant’s health and safety, and that substantially breach the implied warranty of habitability. Examples might include a leak in the roof during the rainy season, no hot running water, or a gas leak.
As a practical matter, the repair and deduct remedy allows a tenant to make needed repairs of serious conditions without filing a lawsuit against you. Because this remedy involves legal technicalities, it’s a good idea for you to contact us before proceeding.
33-1363. Self-help for minor defects
A. If the landlord fails to comply with section 33-1324, and the reasonable cost of compliance is less than three hundred dollars, or an amount equal to one-half of the monthly rent, whichever amount is greater, the tenant may recover damages for the breach under section 33-1361, subsection B, or may notify the landlord of the tenant’s intention to correct the condition at the landlord’s expense. After being notified by the tenant in writing, if the landlord fails to comply within ten days or as promptly thereafter as conditions require in case of emergency, the tenant may cause the work to be done by a licensed contractor and, after submitting to the landlord an itemized statement and a waiver of lien, deduct from his rent the actual and reasonable cost of the work, not exceeding the amount specified in this subsection.
B. A tenant may not repair at the landlord’s expense if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of the tenant’s family or other person on the premises with the tenant’s consent.
If you are requested to make repairs by your tenant(s), you will need to respond within a reasonable period of time, depending on the defects and the types of repairs that are requested. The law usually considers 30 days to be reasonable, but a shorter period may be considered reasonable, depending on the situation. For example, if the furnace is broken and it’s very cold outdoors, two days may be considered reasonable.
It is in your discretion now to make the requested repairs. For example, if you believe the defects may not be serious enough, and your tenant(s) insist on using the repair and deduct remedy, you can insist on full payment of rent. If your tenant(s) choose not to pay the full rent, you can sue to recover the money deducted from the rent, and you can even file an eviction action based on the nonpayment of rent.
If the tenant(s) deduced money for repairs not covered by the remedy, or they didn’t give you proper advance notice or a reasonable time to make repairs, the court can order the tenant(s) to pay the full rent even though they paid for the repairs, or can order that the eviction proceed.
Inspection of Units
A tenant may ask you, and is entitled, to inspect the rental unit before the tenancy ends to identify defects or conditions that justify deductions from the tenant’s security deposit. The purpose of this “initial inspection” is to give the tenant an opportunity to repair the defects or do the cleaning identified during the inspection in order to avoid deductions from the tenant’s security deposit. The tenant has a right to be present during the inspection.
You MUST perform an initial inspection as described in this section if it is requested by your tenant. You cannot make an initial inspection unless you request it.
You must give the tenant written notice of the tenant’s right to request an initial inspection of the rental and to be present during the inspection. You must give the tenant this notice a “reasonable time” after either the you or the tenant have given the other written notice of intent to terminate (end) the tenancy. If the tenant has a lease, you must give the tenant this notice a “reasonable time” before the lease ends. If the tenant does not request an initial inspection, you do not have any other duties with respect to the initial inspection.
Scheduling the Inspection
When the tenant requests an initial inspection, you and the tenant must try to agree on a mutually convenient date and time for the inspection. The inspection cannot be scheduled earlier than two weeks before the end of the tenancy or lease term. In any event, the inspection should be scheduled to allow the tenant ample time to perform repairs or do cleaning identified during the initial inspection. You must give the tenant at least 48 hours’ advance written notice of the date and time of the inspection whether or not the parties have agreed to a date and time for the inspection.
You are not required to give the tenant the 48-hour notice if:
the parties have not agreed on a date and time, and the tenant no;
longer wants the inspection; or
you and the tenant have agreed in writing to waive (give up) the 48-hour notice requirement.
You (or your agent) may perform the inspection if the tenant is not present, unless the tenant has previously withdrawn their request for inspection.
Based on the inspection, you MUST prepare an itemized statement of repairs or cleaning that you believe the tenant should perform in order to avoid deductions from the security deposit. You must give the statement to the tenant if he or she is present for the inspection, or leave it inside the unit if he or she is not present.
Before the tenancy ends, the tenant may make the repairs or do the cleaning described in the itemized statement, as allowed by the rental agreement, in order to avoid deductions from the deposit. However, the tenant cannot be required to repair defects or do cleaning if the security deposit could not be used properly to pay for that repair or cleaning.
You may perform a final inspection after the tenant has moved out of the rental. You may make a deduction from the security deposit to repair a defect or correct a condition:
That was identified in the inspection statement and that the tenant did not repair or correct; or, That occurred after the initial inspection; or
That was not identified during the initial inspection due to the presence of the the tenant’s possessions.
Any deduction must be reasonable in amount, and must be for a purpose permitted by the security deposit statute. Within fourteen (14) days after the tenancy ends, you must refund any portion of the security deposit that remains after the you have made any lawful deductions.