HELP! Sewer Backup and Threatening Tenant

28 Replies

OK, this is for one of our developers -  the people who keep this site up and running.  She would REALLY appreciate any advice you can give. She's a newer landlord, so go easy on her.

She rented her property to a new tenant who moved in last month. The dishwasher broke and the sewer backed up, all in one month.

Sewage backup is being dealt with, the dishwasher is too.

Tenant is mad, understandably.

Tenant is saying she does not feel that she should pay the entire month's rent since she can't use the basement. 

Rent is due on July 1, landlord said she would give until July 5. (She's learning, be nice.)

Any advice for our landlord developer?

I'm not sure the landlord tenant laws for CO as I am not a landlord here. Tagging @Bill S. because he runs the Denver landlord meetup and definitely knows more than I do.

@Mindy Jensen is there insurance coverage for this? That should be the first step. If there isn’t then you reallt just have to pay to get it fixed.

I personally would probably not give more leniency on rent due dates then normal, assuming the landlord is doing their best to fix it in a timely manner.

There was a thread about a backup just the other day I was on. They didn’t have insurance coverage for this.

When I had my tenant's basement flood and half of the house was unusable during the reconstruction, I gave the tenant a 50% discount on the rent. Also check with her insurance company to see if her policy has rent protection.

What is the basement being used for? Is it a bedroom/game room/storage area?

What time frame is it not going to be useable? Couple of days? Weeks?

Tenants will look for TONS of reason to not have to pay full careful on what you concede on or it will just reward them and the gates will open.

If its a bedroom and the person will be displaced fro a decent amount of time, I would calculate a % of the rent to discount....... 4 bedroom house for $X/month..... that's $Y per bedroom per day and then do the math.

I'd let the tenant start off w/ naming the price, they asked for a discount, submit a proposal for review.  Adjust as needed... and then for offset spread it out over the remainder of the lease or another month. If it's an on going problem figure out the adjustment, then apply it to a future month once the problem is resolved.

However, lock in the adjustment prior to the commitment. 

If the Landlord is taking care of the issues properly maybe another solution would be to take the rent for July and prorate (# of days tenant is inconvenienced) a discount for August rent.

For me, this would depend on the extent of the sewage problem.  If it's a minor issue, resolved quickly, then, no, I would treat it like any other repair item.  If it's taking time, or if there are/were potential health risks involved, the tenant has a point.  We've had to personally deal with sewage backup issues on 2 occasions, and it is not a pleasant experience, minor or major.  If I were a tenant that just moved in only to experience that and the landlord expected me to live there and pay full rent without the issue being resolved quickly, I'd be asking to get out of my lease, charging the landlord for having to move again and calling code enforcement if I thought it was a health violation.  So if this is taking a while to resolve and my tenant were simply asking for prorated rent, I'd be relieved and work it out with them, whatever length of time it took to return the unit to normal, then start out the tenancy back on solid ground.   But that's likely because we've lived through sewage backups and know how awful they can be.      

@Mindy Jensen landlord tenant laws would only come into effect if there has been a breach of Warranty of Habitability. Based on what you described there should be no legal reason to discount rent. The tenant absolutely cannot withhold rent for minor maintenance inconveniences. That's the hard legal line, but as far as keeping a tenant happy (especially a good one) there's something to be said for a gift card to a restaurant to smooth things over. 

It is a major mistake for a landlord to go to a rent rebate every time there is a issue. With a brand new tenant this will set a very bad president. She should also never adjust rent due date for any reason. This also sets a bad president that tenants will attempt to take advantage of in the future. Both rent rebates and flexible rent due dates indicates a weak business position that tenants will pray on. With a new tennat you never show flexibility that translates directly into the appearance of weakness. It smacks of a** kissing.

If the basement is not part of the necessary living space (bedrooms) there is no reason to give a rent rebate for a minor inconvenience.

There is no justification for a tenant to be "mad" for inconveniences that are beyond the control of a landlord if they have been proactive in correcting problems in a timely manor.

I would not offer any rebate and would instead suggest that you will allow the tenant out of their lease if they are unhappy. That will indicate you have a strict business practice that will not be flexible and puts the decision back on the tenant to act.   

Originally posted by @Ryan Murdock :

If your new car breaks down and is in the shop for a week do they give you a discount on your payment?

 No.  The bank, which has no connection to the car other than loaning money for the purchase, will not give a discount on the monthly payment.  A more apt comparison might be to ask if the car dealership "makes right" the negative experience.

The answer is yes.  Dealerships often provide loaner cars to customers whose recently purchased new car needs an unexpected repair because of a product flaw that is not the cause of the purchaser. 

Regarding this tenant, if there was no substantive loss of use of the house for more than four or five days, I would probably not discount the rent.  If the basement was flooded and/or damp for a week or more and was used for more than storage (meaning it had rooms the tenant actually used, like bedrooms or a living room) than I would offer some sort of discount.

Originally posted by @Randy E. :
Originally posted by @Ryan Murdock:

If your new car breaks down and is in the shop for a week do they give you a discount on your payment?

 No.  The bank, which has no connection to the car other than loaning money for the purchase, will not give a discount on the monthly payment.  A more apt comparison might be to ask if the car dealership "makes right" the negative experience.

The answer is yes.  Dealerships often provide loaner cars to customers whose recently purchased new car needs an unexpected repair because of a product flaw that is not the cause of the purchaser. 

Loaner car or otherwise it's still a hassle and the dealership will rarely, if ever, compensate you for lost time or other inconvenience. Point being the tenant should not expect a rent credit if the problem is being dealt with as effectively and as quickly as possible. 

Originally posted by @Ryan Murdock :

If your new car breaks down and is in the shop for a week do they give you a discount on your payment?

 They give you a loaner, so does that mean the landlord going to provide alternative storage our housing depending on what basement was used for ?

@Matt K unless we're talking about some type of extraordinary circumstances the issue will be fixed soon, so no, I wouldn't provide alternative storage.

This doesn't sound like a habitability issue and no tenant can expect a property to be 100% defect free all of the time. 

Its tough but do the right thing first! Fix the basement first and quickly as no one should have to live in a place with sewer back up. Show you take care of problems then have tenant pay their rent. I think a tenant who sees that landlord does what is right will be willing to pay full rent. These things do happen although maybe not the first month one moves in.  
As for the washer dryer, the tenant can deal with that for several days even a couple weeks as long as landlord is working to get it fixed. its not life threatening. Not sure what the use of the basement was for?  washer/dryer? If that is the case then it is an inconvenience and really the landlords call on whether to offer discount. This all upon the landlord to set the tone of relationship with the new tenant going forward. The issues that just occurred are big. It is possible the landlord rented the place out with old faulty and non-serviced appliances and a building that is old and rickety and that is what can easily happen. Penny wise?

As the landlord you know what truly happened and what you really should do. Make the right call!

@Mindy Jensen so the devil's in the details. What does the lease say about such issues? There is also the warranty of habitability (see link for pdf from state summarizing statute) which was mentioned by @Lucas Miller . If the sewer backup created a situation that made the property unsafe to occupy then the statue would come into play. If the tenant remained in the property, I would argue that it didn't constitute a habitability issue but I'm not sure how a judge would see it. In addition, the tenant has to provide written notice. Legally text is not notice on Colorado but email is and certainly a letter would be. Not sure if a judge wouldn't count text as notice in this case though since they tend to be more like Judge Judy than Perry Mason on issues like this.

The dishwasher, I would not allow for reduced rent. Things break, and we are providing a property to tenants not a guaranty that everything will work flawlessly (which is impossible to execute). As long as addressing the repair is done with "reasonableness" and there is no evidence that the landlord was negligent in previous maintenance, there is absolutely no reason the tenant should not pay full rent. Generally speaking, the same is the case for the sewer issue. 

Finally the withholding rent is a huge red flag. If the issues have been addressed (not completely clear from your post), then the landlord should post notice and start the eviction process. If the work is not complete then I would reach out to the tenant via text or email with a gentle reminder that rent is due in full. I would acknowledge that the issue is on going and remind them that full rent is due. If there are to be some adjustments, it will be done after the fact in the form of a rebate. If the tenant fails to pay in full, I would then post notice and get an attorney to provide legal advise.

It might be helpful to remind the tenant that if they were the owner of the property, they would have to pay for the repairs AND endure the inconvenience. Because they are renters, all they have is the inconvenience.

All that said, she (the landlord) needs to do what she feels comfortable with keeping in mind that "timid landlords have skinny kids." 

I would advise her as well as everyone to pick up Nolo's Every Landlord's Legal Guide. It covers everything a landlord should know and how to handle these type of situations. 

If the tenant is a good tenant (so far), making them happy goes a long way. Also for the sewer back-up, try to understand what the problem was and how to avoid it in the future (for example: tree roots in the sewer line will just re-occur in the future).  Therefore, try to avoid having the tenant deal with the same problem, so they don't get frustrated with the unit.

On my first duplex with 2 newly moved in tenants BOTH ac systems died the same day for each. The tenants still had to pay the rent. We were very apologetic to the tenants and were in constant communication daily with them until it was resolved. In severe situations a landlord can be liable for a tenant to find them temp living arrangements, such as sewer backup as its a health hazard and a bio hazard.

Tough to know without all the details. But i can say that the tenant still has a legal responsibility to pay full rent on time. 

As it pertains to the sewer issue, the landlord needs to investigate the cause of the issue.  Most roto rooter type companies will give you a report and let you know what they found in the drain line that caused the back up.  The back up is usually a result of the actions of the people living in the house, there are certain circumstances(roots, broken drain lines, etc...) that cant be avoided but from my experience, the occupants are usually involved.

I've had 3 sewer back ups in the last year and every one was from tenants flushing things down the toilet that are not meant to be flushed.  My lease not includes a clause about what is not supposed to be flushed down the toilet and if the back up is a result of negligence the tenants are responsible for the service provider fees/ my time to manage the issue and the clean up if necessary.

If you can get that info from the plumber who cleared the line then you may have some leverage back on the tenants 

The biggest issue I see with the philosophy of always making sure the tenant is "happy" is that the list will get longer and will start small and before you know it, you will be catering to every little issue they want to bring up because you made them "happy" the last time they asked for some concession why not keep asking

In many ways it's like being a parent..... you have to be able to say NO....or you will have a spoiled, entitled kid on you hands. They may not like the NO and you may get some push back, but in the long run you HAVE to see boundries on who is in charge.

In baltimore, and usually the rest of the reasonable world, when one pays for use of something, isnt able to use it to no fault of their own, and is supposed to for the full amount they pay.....a discount off what they pay is in order.  How much, when, and conditions are a matter the details, but something is certainly reasonable. 

@Thomas S. said

It is a major mistake for a landlord to go to a rent rebate every time there is a issue. With a brand new tenant this will set a very bad president.

@Mindy Jensen Lots of people have expressed similar opinions. I feel that a good tenant will appreciate that you took care of the problem quickly and that you are more than fair if you give a discount. You want your tenants to stay forever. Turnover  cost is one of your highest costs.  If they are not a good tenant then they are going to be a problem anyway; precedent or no precedent. 

Note I added emphasis to "every time" in the quote above. Presuming the issue is taken care of promptly I would not ever give a discount for the dish washer. There are very few problems I would give a discount for. 

However the sewage problem is another issue.  As @Bill S. says it depends on the details. How long did it take to repair and haw bad was the backup. If they couldn't use the shower or toilets and the place smelled bad for two weeks, I would absolutely give a discount - even if the tenant didn't ask for it. If it was a minor issue for two days I wouldn't.

In May, the main water line had backed up (someone's underwear had been obstructing normal flow) of a 12-unit condominium building. My unit (leased to a tenant) and my neighbor's unit were partially flooded as we're the lowest-lying units; we caught it early enough no other units were flooded. While it was a major inconvenience to my tenant at the time, there was no assignment of liability on either of our parts and the full rent was due that month. I did understand the inconvenience and extra electricity cost my tenant was responsible for with the hurricane ventilation fans during the drying process so I offered a decent gift card instead of just saying "too bad" and expecting the full month's rent. While there was inconvenience all-around, this was my best solution to the situation.