Yard Maintenance Responsibility/Rent Reduction discount request

18 Replies

I have a 2 part question. First off, I am the Landlord of a residential home in Texas and with the recent storm my tenants lost power for over 36 hours at the property which caused the tankless water heater to freeze over, have parts fail and it began leaking water and gas. The water heater is on the outside of the home so there is no damage to the property. As you can imagine it has been very difficult to get a plumber over there and get the water heater fixed or replaced as many people all over our state are suffering from plumbing issues from the storm. I've done my best to get the water heater replaced but my plumber says he can't find any water heaters right now because the demand is so high. It's been a little over a week now since my tenants haven't had water and they have requested I give a rent reduction for the inconvenience. The property is not uninhabitable they just don't have hot water for now. Does anyone have advice on how to handle the situation? Am I obligated to give a break in rent?

Issue #2 caused by the storm is the property has a beautiful large succulent plant in the front yard landscaping that died from freezing and I stated to the tenant that they are responsible for yard maintenance which includes all flowers, bushery, rocks, etc. However, they are claiming they don't feel they should be responsible for damages caused by the storm. I also want to mention they did not take any action to protect the plant like covering it. I would never want to be an unfair Landlord but I also don't want to be a landlord who doesn't enforce the lease and give them the idea that they can just simply ask me to cover expenses that they agreed to be liable for in the lease.

Can anyone help me make sense is these issues? I deeply appreciate it. I've included an image of the plant and the sections of my lease that I'm interpreting to make my decisions. 

The reality is this was an extraordinary event and many tenants are still do not even have water and may not have for a while.  Have you tried to order a replacement tankless online?  A tankless on the outside of the house as far north as Dallas seems to be asking for trouble.  Is is enclosed?

Personally, I would not hold the tenant responsible for the plant given their current plight

This was an unusual event outside everyone's control. You didn't have a plan in place to protect the water heater. Why would you expect the Tenant to know how to protect a plant?

If the tenant has renter insurance, have them file a claim to see if it will cover staying in a hotel or some other accommodation. You may also consider filing a claim, but it may not be worth it.

I recommend you create a one-page guide (for yourself and/or tenants) on how to protect the home during cold snaps. They don't happen often, so it would be good to have something to refer to rather than trying to remember what you did ten years before. 

There's pros and cons with everything but there are many pros to having an outdoor water heater. It takes up no space inside the home, you don't have to worry about leaks causing damage inside, gas venting is much simpler, condensation drainage is not an issue, its quieter, easier to install when you need to replace. 

As far as there not being a plan to protect the water heater, I try to be objective and honest with myself when assessing problems so I would say that I do agree that there was not enough of a plan in place to protect the water heater because I never considered a circumstance of freezing temperatures mixed with power outages. The water heater itself has freeze protection elements within it that kick on when it drops below a certain temperature so the cold wasn't the issue as much as it was the loss of power for a prolonged period which didn't allow the freeze protection elements to function. Is there any way I could get assistance from the state to help pay for the damage to my water heater or is that a waste of time? 

Regardless, I like the idea of creating a guide to provide the tenants for how to deal with cold fronts so thank you for that advice.

@Derek Gold A lot of people are experiencing the same thing. If you were the tenant, how would you want to be treated in this situation with the water heater not working?

As for the plant, kiss it goodbye! From my experience, I used to have tenants maintain lawn/landscape, but after a season of none of my homes being taken care of that has since changed. I add the cost as an additional cost to the tenants for the 9 months it is needed down here at $75-$100/month. I explain this on my pre-approval document before even showing them the house so the expectations are clear. They get a nice lawn, I have peace of mind. Its a good learning experience that's for sure!

@Richard Helppie-Schmieder

If I were the tenant I would want to know what actions my Landlord is taking to resolve the issue but I definitely wouldn't ask my Landlord to reduce rent for an inconvenience unless it was due to their negligence. 

I've called multiple plumbers for help on getting a repair, I had my property manager also inquire plumbers to help and he told me he had no luck and I even allowed the Tenants to reach out to plumbers themselves to find one if they could get service faster than I could. It's been 8 days and all I've been told by the one plumber who got out there is that I need a new water heater and he'll let me know one he gets one in to replace it. Yet he doesn't answer or return my calls, he hasn't given me a written report or the specs of the machine so I can try and order one myself. There hasn't been a lack of effort on my part and I've tried to make this clear to the tenant that I'm doing what I can but I've been told no one has tankless water heaters in Texas right now and that all their technicians are booked out past March 11 to even go look at it.

It could just be me but truly if I was the Tenant I would understand that I'm not the only family who is dealing with problems right now and it could be much worse than not having hot water. 

I've considered giving them a $200 credit for the inconvenience but I don't want to set a precedent that now every time they're inconvenienced by something that I'm going to compensate them for it. I don't have the option to request the bank to reduce my mortgage payments because my Tenants have been inconvenienced. I'm trying to look at it from both sides.

@Derek Gold   You should know that your statement about "The property is not uninhabitable they just don't have hot water for now" is not legally how it works with regard to rental properties. 

Almost every state (except one I think) has what is called the "Implied warranty of habitability".  That means that a home must be kept in a certain condition for it to be considered legally habitable.  Those conditions vary by state, but every one I've ever read (including my state's and yours) specifically list "hot water" as one of the requirements.  If you don't have those things, the home is not legally habitable and you cannot charge the tenant rent for the period of time that it is not habitable. 

You can read more about the "Implied warranty of habitability" requirements for your state here if you're interested (scroll about half way down the page):

Texas Rental Laws – An Overview for Landlords and Tenants

As for the plant, I agree with the others, it was an extraordinary event that I personally wouldn't try to hold the tenant responsible for.  It wasn't like they intentionally failed to water the lawn for a couple months and the lawn died as a result.  This was Mother Nature that brought unusually low temperatures and killed a plant that wasn't well-suited for such a low temperature.  Honestly, I don't think you even could hold them responsible if you were to try and they were to challenge it in court.  But personally, I wouldn't even try.  Sometimes things just happen.

Just my two cents.

@Derek Gold The plant and water heater provide a nice pair to show that both items being damaged in the way they were was not foreseeable. Explain that you aren’t going to hold them responsible for the plant just as you don’t intent to give a rebate on the rent. You will do everything within your reasonable power to remedy the hot water as soon as reasonably possible, but natural disasters are beyond your control. Everyone above who has cited the implied warranty of habitability is correct, but that only really comes into play if you end up in court. A reasonable person can see that the whole state is suffering and you will be doing your best to take care of it.

Prorate the rent for the # of days the tenants are without a water heater and eat the cost of the plant.

Pretty sure that legally you must provide hot water.  So in that case, I would give them a rent credit for any day(s) they were without water/hot water.... the amount to credit is just rent/30*number of days without hot water

As for the plant? really? Just go buy a new one. 

@Kyle J.

Texas considers 7 days as reasonable to make repairs that could effect safety/habitability of the property.  However there are allowances for obtaining parts or service.  Of course it is no solace to these tenants, but many will be without water for weeks.  Plumbers are telling people to expect 3 weeks as of now to get someone out.  Hot water is considered essential in Texas as is heat.  Ironically air conditioning is not which many here would differ

@Kyle J.  

Thank you so much for informing me of the “implied warranty of habitability” as I was completely ignorant to this and I used the resource you provided to help educate myself. This information led me to research the topic further and I actually found that in 1979, Texas legislation effectively extinguished the implied warranty by enacting Subchapter B of Section 92 of the Texas Property Code. 

This lead me to review section 92 and more specifically section 92.051-92.061. My understanding of the statutes at this point is that sec. 92.052 clearly states the Landlord’s liability for the repair of the water heater. That’s obvious and I knew that. However, sec 92.056 clarifies the Landlord’s liability to the tenant would be enforceable if the Landlord has had a reasonable amount of time to repair or remedy the issue and has not made a diligent effort to repair or remedy the condition. Sec. 93.053 also states the burden of proof is on the tenant in a judicial action to enforce their rights. 

Furthermore, sec. 92.056 subsection d states that in determining whether a period of time is reasonable, the nature of the condition and the reasonable availability of materials must be considered. I think any reasonable court would rule that the availability of materials for a tankless heater right now has to be considered. 

Also as an added wrinkle to the situation sec. 92.054 states that if a condition occurs from a covered casualty loss, the period for repair does not begin until the landlord receives the insurance proceeds. I have filed a claim with my insurance and have not received any proceeds as of yet. 

All that said I’m going to continue to do everything I can to get them hot water as quickly as possible and I may even compensate them a bit but I just don’t feel I’m legally liable to. And it doesn’t seem reasonable to me for the people suggesting I prorate the rent for the # of days they don’t have hot water. If I were to do that we're already talking over a thousand dollars and there’s been no glimmer of hope provided by anyone that I’m going to be able to remedy the condition anytime soon. Why would I prorate them thousands of dollars for something I’m seemingly not liable to do?

Also can’t they file a claim with their renters insurance for a hotel accommodation in the meantime if they prefer it?

Lastly regarding the plant, I didn’t do a great job clarifying what I was asking. I’m not claiming they should have to pay to replace the plant. They notified me that it died and that I should make arrangements for someone to remove it and clear it out. So I notified them that I considered the removal of a dead plant to be “yard maintenance” that is their responsibility in the lease. They want me to incur the expense of hiring someone to go remove it and clean up the area. My belief is that it is their agreed upon responsibility. Whether they do it themselves or hire someone to do it is up to them but I feel it is their responsibility. Am I wrong? It seems clearly stated in the lease to me. 

I will more clearly state what I would (and have done in a similar situation) 

If this were my rental here is what I would do:  I would reimburse the tenants the funds so they could rent a hotel room or whatnot...  I would give them a refund for the number of days they went without water.  I would also get my *** over there and remove the plant, if you have a green bin ask them to weekly put the material in the bin until its all gone.   Then plant a new plant. 

Being a landlord is more than just sucking money from tenants -   in the end life is short and being a decent human is more important than an extra 1,000 profit - dont you think? 

@Mary M.  

Being a decent human is more important than any amount of profit or money in my eyes and should be for anyone running a business. 

I just don’t understand how you can come to the conclusion that following the laws and agreements set forth between two parties is not being a decent human. I’ve heard Brandon, David and many guests on the podcast or blogs talk often about being firm but fair enforcing your lease. Which means not setting a precedent that you’re not going to follow the lease. 

If I’m responsible for something I take full ownership of it. But there has to be a set of rules and regulations to determine who is responsible for what when situations arise. Why would you feel following those would be indecent? I would argue people who don’t follow agreements are being indecent.