Q: Can a landlord make you pay for service calls as well as the cost to fix something that was not caused by the tenant? What about when there is nothing in the lease about that?
A: Two Part Answer – Commercial vs Residential
COMMERCIAL /RETAIL SPACE LEASING
A few Basics: Unlike residential property (discussed below), there are almost no applicable consumer protection laws. This means that Commercial leases are not subject to most consumer protection laws that govern residential leases — for example, there are no caps on security deposits or rules protecting a tenant’s privacy. (“Caveat Emptor” or “let the buyer/renter beware” of the [terms of their] deal/arrangement). Know that when negotiating a commercial lease, there are no widely used standard forms; although the landlord may have such mandatory/required terms or form of its own, such form should be read and reviewed carefully. Each commercial lease [form] is usually customized to the landlord’s needs. Because of this fact, a tenant needs to carefully examine every commercial lease term in the agreement offered as it is made primarily to support the landlord. As a result, commercial leases are generally subject to much more negotiation between the business owner tenant(s) and the landlord, since a business often needs special features in its space(s), and landlords are often eager for tenants and willing to extend special terms/offers. Lastly, please beware that Commercial leases are Long-term and binding. The tenant cannot easily break or change a commercial lease. It is a legally binding contract, and a large amount of money is usually at stake.
When it comes to repairs, such items and duties will almost always be extensively spelled out in a commercial lease. If it is silent, it would be the responsibility of the building owner, usually the landlord for such repairs. Therefore, when is not expressly undertaken by a tenant as the tenant’s responsibility (either by lease or if not unilaterally done by a tenant without prior agreement with the landlord), then it is a duty and cost of the landlord to maintain its property.
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Clearly, if the terms of a lease agreement state that the landlord will fix any of the problems of a dwelling, then the landlord is under a legal duty to do so. In addition, if the landlord ever promised a repair, either in writing or by talking with tenant, the tenant may be able to hold the landlord to that promise.
A tenant, generally speaking, cannot be held to any cost or duty of a tenancy unless it is expressly assumed by a tenant either verbally or in writing in the lease or any other subsequent writing, except for the circumstances set forth below. If it is not expressly undertaken by a tenant as the tenant’s responsibility (or if not unilaterally done by a tenant without prior agreement with the landlord), then it is a duty and cost of the landlord. Also, there are many express consumer/tenant protections (recently enacted into law) that limit or prevent charges/charge-backs to tenants, even if they are written into a lease.
Much of this reasoning comes from the basic premise that a tenant has a basic right to live a habitable rental property. Even if it is not in the rental agreement or lease, a landlord is required to keep the structure and/or unit in a habitable condition. This means that by law (state and local building codes, as well as local ordinances and/or state landlord-tenant laws) the landlord must ensure that the building is structurally sound, ensure that the roof is not leaking, provide hot and cold water, and keep the plumbing, electrical and heating systems all in safe operating condition. Also, if a rental property has become infested with pests, landlords must often pay for an exterminator, unless the infestation was caused by the tenant’s wrongdoing or extreme poor housekeeping. Likewise, dripping faucets, running toilets, small holes in carpet, grimy grout or torn window screens, even though these problems may be annoying for the tenant to live with, the landlord may not be under any obligation to repair these issues.
There are many strategies that tenants can employ to get their landlords to make [minor] repairs. While tenants that are faced with uninhabitable conditions may elect to withhold rent or repair the problem themselves while deducting from the rent; tenants may get into trouble, even be evicted, by doing so if there is an action for unpaid rent and the judge did not feel it was reasonable to withhold rent.
While this firm no longer represents residential landlord or tenants in housing cases, we know many local attorneys that handle such cases in this area and would be happy to direct you to them for more detailed advice about the recent changes to the New York State Law under the “Housing Stability & Tenant Protection Act of 2019”.