Help tenant caused fire now wants out of lease?

33 Replies

Home located in Albuquerque current lease through May 2020

Tenants dog caused a fire by dragging a pillow over a gas floor heater 

Gas meter was pulled as the fire melted the safety cut off valve to the gas heater where the fire was. 

Tenant has renters insurance and I have home insurance through same company

My agent says he has spoken  to tenants agent and they will be subrogating  my claim to her liability  insurance when all is said and done. 

I’m still in 5e getting quotes phase and mitigation company told tenants probably 2 months till all repairs are done. 

Tenants insurance covers her place to live and covers our lost rent while repairs are done. 
Tenant emails me wanting out of the lease as she can’t pay rent on a place she can’t live in (which she won’t be nor will she be paying for her temporary living as far as I understand it.) 

  Our lease does say “if the whole or any part of the leased premises is taken over by any authority having power of condemnation, this lease agreement will end.  The tenant however is responsible for all rent and charges until such time that tenant vacates the leased premises” 

I just want to understand what I have to do in this situation-


There is an Implied Warranty of Habitability. I know, the fire was their fault, BUT that does not waive that implied warranty. Any loss of rent until the place is repaired, you should submit to their insurance company along with the fire damages.

If she wants out of the lease that only has a few months to go, easier to let her out

Condemnation is something the government does by right of eminent domain and is for the public good. I'm no lawyer, but that doesn't apply here.  Was the heater something the tenant brought in or was that something you provided for heat?

We provided the heater it is a part of the house-gas floor heater.  

My adjuster said that her insurance will be paying the difference to her in what it costs to be in a hotel while repairs are done vs paying the rent and she will get the difference.  She doesn’t want to stay in a hotel and wants to go lease another property.  

The fire was yesterday morning-I have had two contractors/mitigatiors companies  out within 24hrs and am waiting on quotes  and to find out what exactly needs to be repaired. 

County says property was not condemned by them but I have a message in to make sure the fire marshal didn’t either.  

The main heater (gas) was shut off and the gas meter pulled until the furnace can be replaced which cannot happen until  the cleaning is done and joists repaired ect..

It’s not dangerous, fairly common in older homes and was inspected and turned on by the gas company most recently in May.  They still make and sell them. It’s a heater that is installed in the floor of a house that runs on natural gas it is recessed in the floor under the house in a crawl space.  We lived there for 10+ years and it’s been rented for 10+ years with no issues but if you leave a couch cushion on top of it it will catch on fire eventually which is what happened. 

Originally posted by @Sacha LaCoss :

It’s not dangerous, fairly common in older homes and was inspected and turned on by the gas company most recently in May.  They still make and sell them. It’s a heater that is installed in the floor of a house that runs on natural gas it is recessed in the floor under the house in a crawl space.  We lived there for 10+ years and it’s been rented for 10+ years with no issues but if you leave a couch cushion on top of it it will catch on fire eventually which is what happened. 

I'm with @Dennis M. on this one. My house would catch on fire every day due to stuff left on the floor. Something to consider. Regardless, good luck with the repairs.


I would not let them out of the lease right now.  They trashed your place so they should get the consequence.  Let them live in a hotel, or pay  the rent until you can rerent it.  BTW, their insurance will likely pay for them to live in a 'comparable' house if they want a house.

Yes insurance will cover the costs, but not your sleepless nights and time coordinating and filling out forms.

Once the house is fixed and rentable, then you can decide if letting them out of the lease is what you want to do.


Condemnation in the lease does indeed have to do with eminent domain NOT with the house being condemned. 

I confirmed with my city/county that the house is not condemned in the building sense either. 

The tenants renters insurance will cover any of her housing costs that exceed her normal rent amount-she simply finds this inconvenient...As do I. 

Her insurance will also be paying us rent while repairs are made if it turns out it’s going to take that long and repairs run into another month. 

We have 5.5 months left on the lease and I would prefer not to try to rent it out in the winter.  The lease ends in May which is the best time for properties to be rented in this market, at least as far as we have found. I’m going to see how long the contractor thinks it will be to repair and make decisions from there. 

As for the heater the home does not have duct work so going to central heat would require major work and cost to us.  We are going to see what quotes look like and will consider this but I do not think we want to go this route. These heaters are very common in the area and tenants are used to them.  

I am wondering though if instead of replacing that heater we could switch over to another type that does not require ductwork like wall or base board heating-anyone done that? I know electric heat is more expensive but not sure I care. 

The last 24 outs was incredibly stressful but mostly because I had never had dealt with this situation.  I’ve learned a LOT and appreciate you guys as a sounding board. Thank you!  

Tell her if she breaks the lease, she will have to continue to pay rent until you can get a new renter. This will double her rent costs, not save her money. In addition, her insurance may not want to pay you for lost rent if she has broken the lease, possibly making the situation worse for her. It is truly in her best interest, IMO, to stay. As inconvenient as this is, she has caused a mess and must now clean it up.

You should probably call the insurance and find out what would happen if she broke the lease, so you are prepared.

I would let her out of the lease. you cant make a tenant stay and the law dictates that you have to rent the place asap to mitigate the tenants damages....  sooooo...  let her go gracefully, and use this time of repairs to update if needed etc. 

as for gas floor heaters - they are super common....  i have lived in places with them.  you might look into a mini split or a ductless heater....  good luck

@Sacha LaCoss gas floor heaters are dangerous because if a dog, child or any occupant of the home accidentally covers it with a combustible item, it results in fire. That is exactly what happened in your case. They are really not used in new construction and are mainly still being sold to replace existing ones as they wear out.

This is really a matter of reducing unnecessary risk. Open flames in the living space are not ideal. I would look for safer options.

As for the tenant best bet is to talk the insurance company regarding coverage if she tries to break the lease. It is hers regardless as long as her stuff is there. 

I am familiar with these heaters,  normally they are in an area where you would not cover them, like a hallway.  If you want to switch,  electric baseboard is an option.   Cheap to install, expensive to run. Unless your electric needs an upgrade to do it.   Minisplits will cost you to but cheaper to run then electric baseboard.   We put a sealed  40000 btu gas fireplace in one open area rather then rely on electric baseboard. I believe we just sheetrocked the box, the glass window was exposed like a fireplace but you lose floor space and in the end you still have exposed heating, although the dog can't lay on it. Weigh whether the upgrade to another heat type gets you anything more. 

@Sacha LaCoss

This is what the Uniform Owner Resident Relations Act (UORRA) of New Mexico states to explain what actions to take in this situation.

47-8-31 Resident rights following fire or casualty

A. If the dwelling unit or premises are damaged or destroyed by fire or casualty to an extent that enjoyment of the dwelling unit is substantially impaired, the resident may:

(1) Vacate the premises and notify the owner in writing within seven days thereafter of his intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating; or


(2) If continued occupancy is lawful, vacate any part of the dwelling unit rendered unusable by the fire or casualty, in which case the resident’s liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit.

B. If the rental agreement is terminated, the owner shall return the balance, if any, [of] prepaid rent and deposits recoverable under Section 18 [47- 8-18 NMSA 1978] of the Uniform Owner-Resident Relations Act. Account- ing for rent, in the event of termination or apportionment, is to occur as of the date of the vacation. Notwithstanding the provisions of this section, the resident is responsible for damage caused by his negligence.


Last month tenant wanted to break lease due to her losing some income and I offered her several options: 

Roommate, buyout of lease term or that we would re-rent and she would only be responsible until  the unit was filled. she declined.

Within 36 hours she of the fire she wanted to break lease which we declined as she was being provided coverage of her costs by the insurance company and I was not aware of this law. 

And now we received an email from her quoting this statute, saying she is leaving and her email also stated she expects all her deposits back as well as pro-rated rent back within 30 days. 

I was about to come post asking for recommendations for a landlord/tenant lawyer I could pay for a consult in Albuquerque when I saw Shawn’s post. 

I’m beginning to be suspicious maybe this was not an accident? 

I do not want to do anything I shouldn’t.  Do I need to pay her the prorated rents the date she moves out? 

Can I deduct  damages not caused by the fire from her deposits? What about utilities that she does not pay? 

Guess I need that lawyer consult.  Anyone have a recommendation of someone I could pay just to tell me what I can and cannot do/collect in this situation? 

Sacha - PLEASE do not do anything with the lease/rent without talking to a NM lawyer.  You have a complicated situation, and we know this tenant may have impure motives and could be litigious.  You don't want to innocently do the wrong thing here.

The quoted statute is clear, but given this tenant's reactions and communications, i'd check with the attorney to make sure your course of action complies with it and other applicable rules.

And, of course, you want to make sure your financial losses continue to be covered by the combo of your and the tenant's insurances.

Maybe check with your insurance company to see if attorney's fees might be covered?  They would certainly be related to the covered loss.

Originally posted by @Theresa Harris :

@Sacha LaCoss  I'd also be suspicious.  Tell her she doesn't have to move back in, but she is not getting her rent back.  Are you out any money for the insurance or did her insurance cover all of the damages?

This happened Wednesday so nothing has been done yet other than reports and getting quotes for repairs.  Fire Captain at time of fire  said report would say her fault-accident. 

My agent indicated that we would be subrogating the costs to her insurance policy as we have the same insurance company but nothing in writing yet.  Our deductible is $1,000 should we end up having to do this under our policy. 

Lost rent is covered while repairs are done so I think I may get coverage for any I have to refund to her due to pro-rating mentioned above? 

Cleaning can start as most damage is from smoke but will take 7-10 days? Then I can have the damage to the floor/heater replaced. I am waiting for my agent to review the quotes I got and the adjuster to inspect (adjuster coming Thursday)  but expect to start next week sometime. 

No I am on complete hold until I get legal advice.  I absolutely do not want to do anything wrong out of ignorance.  Hoping to get advice on a lawyer to choose for a consult to help me understand what our responsibilities are.  

Anyone have a recommendation for an attorney or use a pre-paid legal type service who just gives you advice? At this point I just need to understand what I should do and what’s legal.  I fully expect to have to pay for this advice but I’m not looking for actions at this point just understanding my legal rights/responsibilities. 


@Sacha LaCoss   "Lost rent is covered while repairs are done so I think I may get coverage for any I have to refund to her due to pro-rating mentioned above? "  Once you get the money form the insurance company, give her back rent for that period of time.  

I would just reply to any of her messages that you need to wait until the insurance and damage are sorted out. It is  a lot to deal with, but you seem to have it under control.