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What Is the Landlord’s Responsibility for Keeping Their Rental Unit in Good Repair?

in Property Maintenance

Tort Law

 
In the broadest sense, landlords are responsible for providing a habitable property at the initial and subsequent occupancy of a rental property under a legal obligation called “duty of care.” Duty of care falls under tort law. An owner would be in breach of the duty of care if they did not comply with the requirements under federal, state and local laws dealing with maintenance, etc. to keep others from harm.

Michigan Law

 
In Michigan, the first place you’ll find an answer to this question is in Michigan Compiled Law, Chapter 554, more specifically section 554.139. This section is often referred to as the “covenant of habitability.”

The language is pretty clear and understandable, but let’s break it down part by part:

(1) In every lease or license of residential premises, the lessor or licensor covenants:

(a) That the premises and all common areas are fit for the use intended by the parties.

In other words, if the property is to be used as a residential unit for someone to live in, it must be designed and maintained in a manner that fits the purpose. A property lacking a toilet or a way to bath or shower or windows and doors would obviously not meet this requirement. There is also a possibility that even though there is an existing room in the property that appears to be a bedroom the space may not qualify as a bedroom if it doesn’t meet the minimum standards for a bedroom per local code, e.g. there may be a minimum square footage requirement or ceiling height requirement that the room does not meet. The room will also likely need more than one means of egress. Other presumptions would be that a habitable space must have ventilation, lighting, a heating system, water, sewage system and a way of disposing of trash. You get the idea.

(b) To keep the premises in reasonable repair during the term of the lease or license, and to comply with the applicable health and safety laws of the state and of the local unit of government where the premises are located, except when the disrepair or violation of the applicable health or safety laws has been caused by the tenants willful or irresponsible conduct or lack of conduct.

You might ask yourself, where do I find the de minimis requirements for “reasonable repair” and compliance with the “applicable health and safety laws?” The first place to look is the Housing Law of Michigan, Act 167 of 1917. Article IV, Maintenance, spells out the various minimum standards for such things as water closets, kitchens, water supply, cleanliness, etc. You’ll find most of these requirements further spelled out in local property maintenance codes and health codes. Notice should be given to the fact that Act 167 specifically states that these are the “minimum requirements” and that local law or code can impose higher minimum standards.

The next place to look is in the locality where your property is located. See more on these in the section below on Local Codes & Requirements.

What about that last line in paragraph (1)(b)? This exception refers generally to issues with pests and housekeeping. Local codes may put the responsibility of pests and housekeeping where it belongs—with the tenant. Keep in mind though, even though the state law and local ordinances might state that these things are the responsibility of the tenant, if the issue does not get resolved by the tenant, the municipality will usually look to the owner to resolve the problem. If the owner doesn’t, the municipality could penalize the owner or condemn the property for occupancy.

(2) The parties to the lease or license may modify the obligations imposed by this section where the lease or license has a current term of at least 1 year.

In other words, where a lease of one year or longer exist, the owner and the tenant can decide on who is responsible for what and stipulate those conditions in a lease. However, be very wary about leaning on this statement too much and handing off all your maintenance responsibilities to your tenant. The reality of the situation is that the local municipality doesn’t care one hoot what the lease says about responsibility—they will ultimately hold the owner responsible and take action accordingly. Courts will side with the municipality on this; so, it rarely pays to attempt to pass this responsibility on to the tenant.

(3) The provisions of this section shall be liberally construed, and the privilege of a prospective lessee or licensee to inspect the premises before concluding a lease or license shall not defeat his right to have the benefit of the covenants established herein.

This is a bunch of legalese that simply means: Even if the tenant had the opportunity to inspect the unit before they signed the lease and moved in (even if there were issues) and they didn’t note anything wrong on a “Beginning Inventory Checklist,” the owner is still required to make the repairs necessary. If the owner doesn’t, the tenant could stop paying the rent, escrow rent, move out, etc.

Local Codes & Requirements

 
Most municipalities have a local property maintenance code which they use to specify the minimum standards by which they will judge whether or not a rental property is deemed in reasonable repair and up to minimum health and safety standards. Be aware that the property maintenance code might be a custom, locally developed code. Or, as is usually the case, especially in larger cities, the local property maintenance code may reference another external code which stipulates the minimum standards. In Michigan municipal codes, the external code most often referenced is the International Property Maintenance Code (IPMC) as published by the International Code Council. And, often, a specific version or year of the code is also specified, e.g. the 2012 IPMC. The IPMC will often reference other codes within the “International Code Family,” e.g. the International Fire Code. Even though a locality may reference the IPMC as their property maintenance standard, they may modify this by setting a higher minimum standard, requiring something not in the IPMC, for example window pins or something to address lead-based paint issues.

In addition to the property maintenance code, the locality may also have something referred to as a “nuisance code” or some other code with a similar name. Nuisance codes usually deal with things such as weeds, grass height, trash, animals (not allowed), pests, outside storage, abandoned cars and the like. Nuisance violations are usually caused by tenants, i.e. they piled up trash bags in the yard, didn’t mow the lawn for weeks, put indoor furniture on the front porch, parked a disabled car in the yard, started raising chickens, etc.

You should make sure that the municipality delivers any type of warning or notice to you in addition to posting the property. Landlords are often faced with huge fines and fees where the municipality has “vendored” the nuisance, i.e. hired a contractor to take care of the issue.

There may also be other local codes that call out specific requirements for rental properties, for example the City of Grand Rapids fire code requires a specific type of battery-operated smoke detector where battery operated detectors are allowed in rental units. In this case, the required detector must, at the time of this writing, have at least a working sealed 10-year lithium battery and be tamper proof.

Local health codes may also stipulate general requirements for all housing that are not included in a property maintenance code or specifically for rentals that must also be met. Health codes such as these usually deal with pest, lead paint, blighted property, etc.

You may find that many of these codes and laws overlap. The important thing to do is to find out what codes and laws are in place in your area to make sure you are in compliance both before and during a tenancy. You should have a copy of the local codes and any referenced codes.

Section 8 and Other Programs

 
If, as the landlord, you participate in the HUD Section 8 program (which you must do in most larger municipalities in Michigan) or one of HUD’s other tenant-based assistance programs, you will also be subject to HUD’s Housing Quality Standards (HQS). Complying with the HQS standards is required both at initial occupancy and during the term of the lease. HQS standards apply to the building and premises, as well as the unit. One particular requirement that is fairly new is carbon monoxide detectors—not something required under the IPMC or most municipal property maintenance codes.

Local administrators for HUD programs also may require clearance test after work is done to eliminate peeling paint, etc. in housing built before 1978. You should obtain a copy of the HQS from your local Section 8 administrator—probably a local housing commission. If you are participating with another program, such as a grant program, tax credit properties, senior citizen housing, there may be additional requirements than those listed in the above sections.

Reasonable Accommodations for the Disabled

 
If someone that is disabled wishes to live at your property and they meet all your other qualifications, you may be required to make “reasonable accommodations.” These accommodations could be in addition to the minimum requirements under any other code. For example, state and local codes are not likely to require the installation of a wheelchair ramp. If a tenant needs a wheelchair ramp, federal law (and likely state and, maybe local, law) would require the owner to install the ramp. Other examples would be grab bars and changing a toilet seat to accommodate a person in a wheelchair.

This can be a far-ranging topic. In short, if the accommodation costs the owner a small amount of money, it would be deemed a reasonable accommodation and the owner would be expected to make the modification happen. If what is needed for the disabled person is not reasonable—in other words would cost a lot of money and puts a heavy financial burden on the owner—the owner must still go along with physical changes necessary to the property IF the disabled tenant is willing and able to pay for the changes and they are willing and able to pay for having them reversed when they vacate the property. To make sure you’re in compliance, check other online sources for this topic and/or contact your local fair housing and/or disability advocate agency and get their take on the subject. (A side note for historic homes: If your property is in an officially recognized historic district, the local restrictions for properties in the district would likely trump some of these requirements.)

Lead-Based Paint

 
There is a general presumption that if a property built before 1978 is maintained per the property maintenance code (and other codes), lead hazards are significantly limited. It should be noted, however, that any work performed on a property that disturbs a de minimis surface area that contains lead-based paint must be done by someone that is EPA RRP (Renovate, Repair and Painting) certified to do lead-safe work and cleaning. This includes landlords doing their own renovations, maintenance or repair work. The RPOA provides training for RRP certification. Check out the event schedule at our website for the next course date.

Some municipalities are requiring some form of lead testing during a municipal rental inspection (e.g. in Detroit) either during or before occupancy. Most often these tests are done to ensure that lead dust does not exist at a level that would poison a child under the age of six. If lead dust is found, repairs and cleaning would be stipulated and a clearance test required before a certificate of occupancy would be issued.

An owner may be faced with additional lead inspections if a child is found to be lead poisoned in one of their rentals. The local health department will likely test the property for lead and lead hazards and identify areas that need to be remediated. In these situations, state law requires that the lead hazards be addressed in a timely manner or face fines and penalties. Both the owners and managers of the property can be held liable.

As local and state laws are changing rapidly in this area, landlords and property managers are encouraged to check with their local municipality and stay up on state lead laws to be certain they are in compliance.

Multi-Family Buildings

 
Additional standards are required for multi-family buildings. Some of those will depend on how many floors the building has and whether or not they have an elevator. Some of the common additional inspections that multi-family buildings undergo are: annual boiler inspection; annual exit signs, lights and fire suppression system inspection; and annual elevator inspection. If the building is over four stories tall, the fire department will likely walk the property annually.

In some municipalities, the rental certification inspection will only include an inspection of a certain percentage of the units within the building, i.e. 10%, 20%, 50% or more. Some municipalities reserve the right to inspect additional units up to 100% if problems are found within the first minimum percentage that were inspected. Check your local code to see the requirements.

Enforcement

 
So, you might be asking yourself, how does anyone know if I’m in compliance with all the codes and regulations? Most municipalities will have a local housing department or building code enforcement department that carries out a regular rental inspection program. These inspection programs vary considerably across the state in terms of who does the inspections, how often and what the cost is.

Inspection programs usually require registration of the rental property and an inspection to obtain a certificate of compliance/occupancy every 2 to 6 years—depending on the municipality. The Housing Law of Michigan stipulates, in part, how these inspections should be administered and carried out. (Side note: The Housing Law of Michigan no longer requires municipalities of any size to inspect rental properties—local municipalities choose to do this on their own. However, if they do, they must follow the Housing Law of Michigan requirements.) Properties must be brought into compliance before a certificate will be issued. Notice of violations may also be issued between inspections based upon a complaint from anyone—not just your tenant. (FYI: If your tenant files a complaint, this may prohibit you from evicting them for 90 days under retaliatory eviction laws.)

In the absence of a local rental inspection program, municipalities will usually take complaints and send out a local building inspector to inspect the property. In those cases, the inspector will likely use the IPMC as the basis for the standard requirements.

If you’re involved in some way with a government program, like Section 8, the program will have inspection staff or a third party do an inspection to ensure that the property is in compliance with HQS or other standard. These inspections are often conducted annually—usually at no cost to the owner. You will most likely be subjected to a local municipality inspection as well—even if you are in compliance with HQS.

As noted above, there are additional inspections for multi-family properties under state and local law.

A word about inspections and inspectors: One of the biggest frustrations for property owners is the subjectivity of the inspections and the interpretation of the codes. Whether or not the inspector likes you can also taint an inspection. You may have a legitimate point when noting something being asked to be done is not in the code or that the inspector is being very picky—but, pick your fights wisely. Causing headaches for the inspector and frequently appealing citations is a sure way of getting a “troublemaker” reputation with the municipality—which translates into long term and expensive dealings with the inspection department.

 

Disclosure: This Knowledge Base article is accurate as of the last update. Laws and policies are subject to change. If you have any questions, please call the office. Click here for contact information.