Maintenance! Who is responsible?
by Patrick Hancock
Perhaps the question I get asked the most from landlords is “who is responsible for repairs and maintenance, the Landlord or the Tenant”. The answer to this question is that both the landlord and the tenant could be responsible. Let me explain what I mean by “could be”. Generally speaking and according to Florida landlord tenant law, a landlord has the legal responsibility to provide what is termed a “Warranty of Habitability”. This is a legal doctrine that imposes a duty on the landlord to make the leased premises habitable and ready for occupancy and to continue to maintain the property in a state of repair throughout the entire term of the lease. For example, if the tenants lease the property with a working A/C unit, then under the implied warranty of habitability, it is expected that the landlord would repair or replace the A/C unit if it ceases to function properly. Perhaps a more simple definition of a “Warranty of Habitability” is a minimum standard by which the landlord ensures that the property is safe and sanitary for its inhabitants. In addition, this minimum standard would require that all appliances, switches, doors, windows etc function properly. With that said, the landlord, by default, is usually the primary person responsible for all maintenance and repairs. Furthermore, a landlord may also be held civilly liable for maintenance and repair items left unattended. For example, a faulty stair railing that has not been repaired after several requests made by the tenant to the landlord that leads to an injury sustained by the tenant or a member of his/her family could result in the landlord being held personally liable.
At the beginning of this article I suggested that both the landlord and the tenant could be responsible for both maintenance and repairs and that indeed is the case. Keeping in mind that the landlord, by default, is responsible for all repairs and maintenance, then how does that responsibility thus transfer to the tenant? The answer is simple. Indicate that all repairs and maintenance are the responsibility of the tenant on the lease. This, of course, will be done in writing and signed by both parties. It is important to note, however, that any and all code violations that occur will be the responsibility of the landlord even if it is stated otherwise in the lease. The landlord should take care of the violation as soon as possible and then seek reimbursement for the violation from the tenant.
Whether the landlord draws up the lease or uses one provided by a real estate attorney, items that could potentially require maintenance and repair should be itemized. Be very specific as there should be no confusion as to where the responsibility rests. Items typically maintained and repaired by the landlord such as steps, porches, doors, and windows could become the responsibility of the tenant by simply indicating this in writing on the lease. Important to note, however, is that the tenant does not have to agree. Who is responsible for repairs and maintenance could be a deal breaker and result in a vacant rental property is both sides fail to come to an agreement. The lease is the backbone of any investment property and my suggestion is to use an attorney-prepared lease as opposed to your own. Attorney’s typically have a form that you as the landlord will complete and it is this form that they will use as a guideline to develop your lease that is specific to your desires. In particular your desires regarding who is responsible for maintenance and repairs will be addressed.
Once the lease has been signed by both parties and is in effect, meaning both parties have agreed on repairs and maintenance responsibilities, it is now time to document every single repair that takes place. This is your “ammunition” in case there is ever a dispute as to who was to fix what when. It’s not uncommon for a tenant to place a maintenance request and become agitated if the repair has no been completed in what they feel has been in a timely manner. Many times tenants will say “I’ve left several messages and sent several emails”. Let me say it again. Document every single repair and maintenance request even if it is as simple as fixing the toilet flapper. Your format for maintaining records is up to you and doesn’t have to be fancy. There are, however, several forms available regarding maintenance requests and repairs. Lastly, it is recommended that neither the owner nor the tenant make repairs to the property. Using a professionally licensed vendor has shown to not only save time and money, but also will help prevent possible legal action by the tenant if the repair was faulty.
In closing, who is responsible for repairs and maintenance will continue to be a source of contention between landlords and tenants. More often than not, the landlord does not even realize that this burden can legally be transferred to the tenant. Getting the tenant to agree is a different story. If the landlord, by default, has the responsibility of all repairs and maintenance, then it is the landlord that could be held liable if the repairs and maintenance are not only made in a timely manner but also done correctly and hence reiterating the importance of using a qualified vendor. Lastly, remember to document everything, even phone calls.
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