This article was posted on Sunday, Mar 01, 2015

Residential landlords are faced with many challenges.  At the top of the list is making sure that their property is well taken care of and complies with the essential services conditions.  This has become an imperative as more cities and counties require licensing and hire rental unit inspectors to keep landlords compliant.  Additionally, tenant advocates are working to tighten down the habitability laws. 

So what are Essential Services?

Residential landlords must maintain tenant spaces in a habitable condition during the term of a rental agreement or lease.  A dwelling unit is considered uninhabitable if:

  1. The roof leaks and/or if the dwelling is not effectively protected from the weather.  For example, a window does not close properly, or is broken.
  2. The plumbing facilities are not functioning properly, for example:
  1. There is no hot or cold water; both are necessary.
  2. There is a lack of running water in one or more plumbing fixtures.
  3. The plumbing does not properly connect to sewage disposal systems, or is completely blocked up.
  1. There is no safe drinking water, (if safe drinking water is available).
  2. The heating fixtures are not supplying heat, or are in poor working condition.
  3. There is no electricity in the dwelling, or the electrical equipment is not functioning properly, or is in poor working order (i.e. an outlet has blown, but is not replaced/repaired, etc.).
  4. If any area under control of the landlord, including, but not limited to: the buildings, grounds, or appurtenances at the time of the start of the rental agreement are dirty, unsanitary, cluttered, or have accumulated debris, filth, rubbish, garbage, rodents, or vermin.  In certain areas a dwelling can be considered uninhabitable if garbage receptacles are not provided (except as allowed by local ordinance and/or by written agreement between the landlord and the tenant) or if the provided garbage receptacles are not serviced in a timely basis.
  5. The floors, walls, ceilings, stairways, or railings are in a state of disrepair creating a hazard to tenants.
  6.  Provided systems, or systems required to be provided by the landlord, are not in good repair (i.e. out of order elevator, existing ventilation or air conditioning not working, etc.)
  7. The required smoke detectors and/or carbon monoxide detectors are not present or functioning.
  8. The dwelling is not securable (i.e. broken door locks, or window latches, etc.) 

What Happens if There is a Maintenance Problem?

First of all, tenants have a responsibility to keep a property in good condition.  Tenants need to keep their unit clean and not cause intentional damage.  When something breaks, tenants need to notify their landlord. 

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What Can a Tenant Do if a Landlord Does Not

Repair / Provide Essential Services?

A tenant should first contact the landlord and state the problem. They should then follow up with a written notice stating the problem again. If the essential service is not restored within [a reasonable time] the tenant may buy the service or have the repairs done to restore the service and deduct the cost from their rent.

If the landlord fails to supply any essential service and the lack of which poses an imminent and serious threat to tenant’s health, safety or property, the tenant can deliver a written notice to the landlord specifying the nature of the breach and warning that this gives them grounds to terminate the rental agreement or lease if the breach is not remedied within 48 hours.

A landlord shall not be considered intentionally or negligently failing to supply an essential service if the landlord:

  1.  Substantially supplies the essential service, or
  2.  Makes a reasonable and good faith effort to supply the essential service and the failure is due to conditions beyond the landlord’s control. 

Some Examples of Essential Service Responses

A furious storm causes a power outage at a 30 unit apartment property. The transformer blew and a second one, installed by the electric company, fails as well.  There are no replacements in the city so a new transformer has to be flown in; in the meantime the apartments have no heat.  Tenants decide to leave their homes and move in with friends and relatives. The landlord has no control over this essential service.  The on-site manager makes sure to stay in touch with all of the tenants to let them know when the power comes back.  The landlord has done all he can to get the electricity back.

The water heater fails for a tenant at 8 p.m. on a Saturday night.  The landlord contacts a plumber and a new water heater is installed on Sunday.

The tenants in a two bedroom, two bath apartment have a clogged toilet.  The tenants call the landlord at 10 p.m. at night.  The landlord decides that the plumber can rooter the toilet the next day since the tenants still have one toilet available.

The tenant’s children throw a toy into the toilet.  The tenants live in a three bedroom, one bath home.  They call the landlord for help.  Since this is an essential service, he calls the rooter company for service that night. The rooter company confirms that the tenants created the damage.  The landlord’s rental agreement spells out that the tenants need to pay for tenant created damages.  The landlord bills back the tenants for the needed plumbing  and repair services.

The refrigerator fails.  The tenant calls the landlord.  The freezer ice has melted and the water service to the ice maker broke as the tenants pulled out the refrigerator.  The kitchen is flooded.  The landlord calls both a plumber and an emergency contractor to suck up the water and install dehumidifiers.  This all occurred within one day.  Had the landlord not responded ( because they were vacationing) the tenant could either have had it fixed (which they would then subtract from the rent), or moved out and stayed in an alternant space until the landlord replaced the refrigerator and the water repairs were taken care of.

A five year old puts a car into drive and the car runs into the side of an apartment building.  The landlord calls the insurance company and they hire a contractor to repair the wall.  The wall is repaired in 10 days, work started on the same day the accident occurred.  

Clearly, landlords must respond to the essential service needs of their tenants, but tenants also have the responsibility to keep their homes and apartments in good order and communicate with their landlords when a failure of an essential service occurs.  Essential services are just that, services that are critical to the health and well-being of tenants, and healthy tenants pay for these essential services with their rent. 

Clifford A. Hockley is President of Bluestone & Hockley Real Estate Services, greater Portland’s full service real estate brokerage and property management company.  He is a Certified Property Manager and has achieved his Certified Commercial Investment Member designation (CCIM).  Bluestone & Hockley Real Estate Services is an Accredited Management Organization (AMO) by the Institute of Real Estate Management (IREM).