I have a rental property in NC that has a few storm drains in the yard. There are steel grates covering the drains for safety reasons. My tenant called the property manager today and said the grates are gone and need to be replaced. The grates were properly installed when the tenant moved in (August 2013) and had been there for about 10 years since the property was built. My question is: Who is responsible to replace these?
Thanks in advance for your responses.
Carolinatim
The metal harvesters likely are to blame. Iron work that is not locked down is always vulnerable to these thieves.
Your tenant might not be in a position where they can afford to pay for replacement. You can price the replacement and then determine whether you would want to file a claim with your insurance; you might be required to get a police report before the claim would be honored.
It will come down to whether the landlord can prove the tenant did it not some bogus add on in the lease. Here in Dallas the judges will rule in the favor of the tenant, and the landlord doesn't want the tenant to tell the judge I don't want to live where someone false accuses me of theft, and I like to move out with my full deposit refunded. Guess what Mr. Landlord writes that check.
Joe Gore
You've veered into a totally different area now. I'm thinking you would know if there was sabotage -- hoses cut? Socks flushed? If not then it's just maintenance.
It sounds like you've made your decision to try to stick the tenant with this charge. It may indeed work. But as @Kyle J. points out above -- this just isn't something that will stand up in court should the tenant decide to pursue it. Unless you can prove that he stole it -- something it doesn't sound like you can -- about any small claims court is going to find in his favor.
But you may win the argument. Frequently a tenant will pay to avoid the hassle of going to court. But if you have a practice that won't hold up in court -- even small claims court -- it's a piss poor basis for a business.
@Kyle J. So how do you know that a burglar stole the front door and not the tenant? Unless the tenant confesses, what do you do? The law requires the landlord to fix but does not say that you can not charge the tenants. Who gets to decide whether it was tenants that caused the damage or someone unrelated third party? My contract (lease) with the tenant says they must pay for damage to the property. I don't see how that won't hold up in a court of law. How would your reply change if the tenant moved out and you were doing the security deposit accounting and there was a broken window? Would you just eat that cost assuming the tenant was not responsible? Would a judge allow you to charge a broken window against a SD? I think so. Same idea only the tenant is still in place. What would happen if the tenant never reported the grates missing and you discovered them gone when you did your final walk through. Could you charge the tenants then? I realize I'm asking lots of questions but the point is that the only clear line is with 100% tenant responsibility for damages to the property they are renting. Anything less becomes a judgment call on a case by case basis.
The judge - that's who ultimately decides. And if you don't know who broke a window (or more importantly - can't PROVE it was the tenants), you will not likely get a judge to order the TENANT to pay for it if it's challenged in court because the law says it is the LANDLORD'S responsibility to fix such things that affect the safety/habitability of the unit.
On the other hand, if you can prove that the tenant damaged something due to their own negligence, then yes - you can fix it and then hold them accountable for the cost of doing so.
Additionally, often times the law DOES have a say in whether or not you can charge the tenants for ANY repair/damage such as the agreement you have apparently entered into with your tenants. Here are just a few examples:
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CALIFORNIA LAW (my state):
TENANT'S AGREEMENTS TO MAKE REPAIRS:
The landlord and the tenant may agree in the rental agreement or lease that the tenant will perform all repairs and maintenance in exchange for lower rent. Such an agreement must be made in good faith: there must be a real reduction in the rent, and the tenant must intend and be able to make all the necessary repairs. When negotiating the agreement, the tenant should consider whether he or she wants to try to negotiate a cap on the amount that he or she can be required to spend making repairs. Regardless of any such agreement, the landlord is responsible for maintaining the property as required by state and local housing codes.
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NORTH CAROLINA LAW (the original poster's state):
PART FOUR: DUTIES OF THE LANDLORD CANNOT BE WAIVED.
Carolina General Statute 42-42(b) states that a landlord cannot excuse himself from these duties through a special clause inserted into the lease. As discussed below, many leases contain such clauses, and tenants should not be fooled into thinking that such clauses are binding.
A landlord and a tenant can enter into an agreement separate from the lease through which the tenant will perform the landlord’s maintenance duties, but only if the tenant is to receive reasonable and just compensation for it. Such would be the case when a carpenter, plumber or painter rents from the landlord, and the landlord wants to hire that tenant to help with the upkeep and repair of the rental property.
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FOR MULTIPLE OTHER STATES THAT FOLLOW THE UNIFORM RESIDENTIAL LANDLORD TENANT ACT:
Even when landlords and residents sign an agreement in writing that the tenant is responsible for ALL maintenance, no owner can hold a tenant responsible for all repairs. This evolved from the , which established that landlords must provide “habitability” for all tenants. Using this as a basis, courts have passed down many judgments against owners who have tried to use a written agreement to avoid their responsibilities.
This act, however, does not mean that a tenant cannot be held responsible for any damage that caused “inhabitability.” Property owners must prove the tenant caused the damage prior to charging them for the repair.
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What this all means is that you can't just sign away your obligations as a landlord, even if the tenant agrees. At least not without compensating the tenant.
But I really don't want to argue with you @Bill S. Afterall, we're both landlords and in this business to make money. I just want others who read this to be clear on what they can, and cannot, do so they don't get themselves in trouble. Like @Michael B. said above, you can do whatever you want but some of it may not stand up in court.
Have a good day and happy investing!
Vandalism or theft from outside perpetrators? - If the tenant files a police report, as a landlord I will take care of it and pay for it. There may be exceptions though if the tenant was in any way involved, or made the matter worse.
Damage caused by tenant? - I will make the necessary repairs and charge the tenant. There may be exceptions though if the tenant has been a good long term tenant and it was a freaky accident.
I've had a case where a broken window was vandalism - rock thrown through the window by a drive-by car of teenagers. I've also had a case where a broken window was damage - tenant without his key broke into his own place.
I investigate to the best of my ability, evaluate the situation, and weigh the pros/cons of charging the tenant. I think it is highly unlikely your tenant made off with the grates. I think it is probable that they were taken by metal harvesters as @Steve Babiak suggested or by someone who wanted them for their own yard. I would thank the tenant for bringing the missing grates to my attention and I would not charge them for the replacement.
@Tim B. Ultimately you will settle into a management style and establish policies and procedures that work for you. It is a given that you need to know and follow the landlord-tenant laws in your jurisdiction, as well as local ordinances. Think about what type of landlord you want to be. You have a choice on how you treat your tenants and how you train your tenants to pay rent on time, to take care of the property, and to not cause problems for you.
Thanks to everyone for all the input, this is a great forum - glad I found it.
After reading everyone's opinions I think what I will do is take the high road and just eat the cost for replacing the grates IF the tenant will file a police report. I would like them to have some feeling of responsibility when things are stolen from the property. If they refuse to file a report then I may try to charge them or deduct the cost from their security deposit for missing items when they move out. I'll have to discuss with my property mgmt company and see what's legal.
Thanks again to all who posted.
If the tenant doesn't file a police report you, the property owner should file one. Tim you might want to think twice about holding their deposit because they did not file a police report.
Joe Gore
Call the local government , if those grates are storm drains connected to government property they may have to replace them . I have something similar on a property , there is an easement for a storm water pipe and a grate in the yard . It belongs to the county
@Tim B. There's no way a tenant would be responsible for securing the grates. Did you BEFORE MOVE IN walk through the property, and specifically note that there were grates on the drain? Can you prove they were there? if not, you'd have no case.
Also, could someone step in the opening and hurt themselves? You are responsible for keeping your property safe, not your tenant.
Out of curiosity, what reaso would the tenant have for removing the grates, or someone stealing them? Are you sure they were there?
@Joe: I am living in another state so it would not be possible for me to file a police report.
@ Matthew: The grates are located well inside my property and are not used for water runoff from the street. The underground drain crosses my neighbors property and comes onto and under mine. I am not sure if there is an easement. I always assumed the drain belonged to whomever owned the property.
@ Karen: The hole is about 2' x 2' x 2' deep so I guess it is possible for someone to get hurt if they stepped in the hole.
I am sure they were there, I would drive over them when mowing the grass last summer when I lived in the house. I am not sure why they were taken, maybe someone who wanted the metal, maybe kids. No Idea.
hey everybody. Surprised nobody asked this: How much are the replacement grates? If they're not too expensive (and the tenant is good) just eat it.
otherwise, our rule of thumb is Tenant must return the property in the same condition as received (minus reasonable w&t excluding neglect, abuse, overuse, negligence, etc....) This includes any missing items. If a faucet or window handle went missing, he'd have to pay for it or replace it.
missing grates are no different for me.