Landlord/Tenant mutual obligations

[gmcgann]

What is the name of your state? North Carolina.

I had a situation come up that I can't find any case law on. It involves the meaning of N.C.G.S. 42-41 which states:

"The tenant's obligation to pay rent under the rental agreement or assignment and to comply with G.S. 42‑43 [maintain the premises] and the landlord's obligation to comply with G.S. 42‑42(a) [maintain the premises] shall be mutually dependent."

The attorney for a friend's landlord maintains that in a case where the landlord has failed to make needed repairs and the tenant has caused some damage also, the case hinges on who was the first to breach the duty to keep the house fit. He said that if the tenant caused the first breach, say by breaking a window, that the landlord's obligation to make repairs ceases, and not only until the damage caused by the tenant is repaired. He says anything that occured during the time the window was broken and before the tenant cured the breach is not the responsibility of the landlord, now or at any time in the future.

In this case, my friend decorated her living room with long drapes that reached the floor, and covered two 40 year old baseboard heaters that were still functional, although the house had a modern heat pump. She asked the landlord if he could remove the heaters because they were a fire hazard in combination with the long drapes. He agreed, and removed one of the heaters. A few weeks later, when he still hadn't gotten around to removing the other heater, she removed it herself by removing one wood screw holding the heater to the baseboard, disconnecting the two wires and putting the wire nuts back on them, then putting in two new sections of baseboard. When the landlord finally showed up to remove the second heater and found what she had done he was happy with the repair to the baseboard, put the heaters in a storage room, and that seemed to be the end of it.

Two months later the heat pump failed and the repair bill was estimated at over $2,000. The landlord now maintains that her removal of the second baseboard heater was criminal under NCGS 42-43 which states that the tenant shall: "not deliberately or negligently destroy, deface, damage, or remove any part of the premises." His attorney says that because she breached the terms of the lease first that the mutual dependance ended and the landlord is not required to repair the heat pump, now or ever, even if she replaces the one heater she removed. Moreover, the landlord is also not responsible for the overflowing septic tank or the broken plumbing because they ocurred after she removed the heater, and he does not have to fix them now or ever.

I can't imagine that this is the meaning of the statute as it would seem to undo all the protection of 42-42 and 42-43. If this is the meaning, then the reverse should hold true as well - if the landlord breaches his duty first, then any damage the tenant does before the breach is mended is not his responsibility. As a landlord myself, this sounds insane.

The attorney says he has won many cases based on 42-41, but wouldn't cite me any references and I can't find any to show me case law on this. Does anyone know of any? Thanks in advance for any help.

 

[BL]

NC landlord tenant booklet :

http://www.ncdoj.com/consumerprotection/cp_tips.jsp

http://www.ncdoj.com/DocumentStreamerClient?directory=CPTipAlert/&file=Landlord-tenant booklet.pdf

 

[gmcgann]

I've seen that booklet. The problem is that the booklet does not even mention NC G.S. 42-41, much less explain it. What the landlord's attorney is telling me is that because my friend breached her duty as a tenant first, his obligations to make repairs not only cease, but that anything that breaks between the time my friend removed the baseboard heater and the time she puts it back is NEVER his responsibility.

 

[BL]

I've seen that booklet. The problem is that the booklet does not even mention NC G.S. 42-41, much less explain it. What the landlord's attorney is telling me is that because my friend breached her duty as a tenant first, his obligations to make repairs not only cease, but that anything that breaks between the time my friend removed the baseboard heater and the time she puts it back is NEVER his responsibility.

Call the Dam Code Enforcement Office . Geeze ...

If those heaters can be easily taken out , they can be Just as easily reinstalled .

Most Properties Must have a Primary Heating source that heats most of the rental unit ( can't be waived ) at a certain temperature .

I don't believe a LL can ignore his duties over 1 broken window .

If the Tenant Damaged that Main Heating source then NO the LL would NOT be responsible to repair it , but that doesn't seem to be the case .

Where are these other heaters located ? Locked up by the LL ?

Again call the inspector's Office . He may actually find more violations .

 

[gmcgann]

No one at the inspector's office knows anything about 42-41. It comes down to this:

She has filed a claim for rent abatement until LL makes repairs, and for reimbursement for her expenses, such as having the spetic tank pumped. LL has filed a counterclaim for summary ejectment alleging breach of the lease and violation of 42-43. The case comes up this week and she can't have it continued.

LL's lawyer want to negotiate, but since that involves concession on both sides and she would still lose money. The lawyer is going to say that her removal of the baseboard heater constitutes "damage, defacement or removal" under the criminal portion of 42-43 and also a breach of the lease, despite the fact that the LL removed the other heater. Her choices are to negotiate and maybe get some things fixed but still be out some money, take her chances in small claims court against an experienced attorney when she has no legal experience at all, or spend money to hire a lawyer.

Her case should be a slam dunk against the LL except for 42-41, which is why I'm trying to find case law on it. I want to avoid the situation where the judge says to her you're right, the landlord has screwed you six ways from sunday, but unfortunately, the law is the law and you lose.

 

[FarmerJ]

Electric baseboard heaters normally never have more than 2 units connected to one thermostat If that room has its own thermostat , Prepare to hire a lic electrician to restore the heater to its previous position and turn the damn thing off at the circuit breaker . And be warned those long drapes are a fire hazzard with electric heaters .

 

[gmcgann]

Electric baseboard heaters normally never have more than 2 units connected to one thermostat If that room has its own thermostat , Prepare to hire a lic electrician to restore the heater to its previous position and turn the damn thing off at the circuit breaker . And be warned those long drapes are a fire hazzard with electric heaters .

I'm not sure why my point isn't getting across. We recognize that the heaters are a fire hazard - that's why my friend asked the landlord to remove them. Problem is, he's 84 years old and it took him a week to remove one. After waiting another week for him to remove the other she did it herself. She has now put it back. The one the landlord removed is still disconnected.

The problem is this: The landlord's lawyer says that N.C.G.S. 42-41 means that because my friend's removal of the heater breached both the terms of the lease and her duties as a tenant under N.C.G.S. 42-43 that the landlord's obligation to make repairs and keep the dwelling fit under N.C.G.S. 42-43 is terminated because the landlord's and tenant's obligations are "mutually dependent" under N.C.G.S. 42-41.

Ok, that makes some sense. If my tenant starts tearing things up in my house I'm not obligated to keep running out to fix them. Likewise, if I refuse to keep things repaired my tenant doesn't have to go out of his way to do normal maintenance. If the toilet keep overflowing, for example, he doesn't have to keep cleaning up the water on the floor around the toilet if I refuse to fix it, and if the standing water does damage to the floor it's not his responsibility.

BUT - according to this lawyer, even though my friend has now replaced the heater she removed, returning it to its orginal condition, and is no longer in any possible breach of the lease or the law, because the mutual obligation was suspended during the breach anything that happened during the breach is not the landlord's responsibility.

In this case, during the three months the heater was removed the septic tank clogged and my friend had to have it pumped because the landlord refused to. It is now clogged again and sewage is backing up in the toilets and drains. The heat pump also failed and the HVAC technician says it died of old age and needs to be completely replaced. Both these things happened while the heater was removed so according to the attorney the landlord has NO responsibility to repair these items, not now, and not at any time in the futute.

No one in the inspectors office is familiar with any case law regarding 42-41. They say the same thing some of you have said in this post - "I don't believe ..." or "I don't think..." The point is that it is a JUDGE who is going to tell us what the statute means and at that point it's too late. If it means what WE think it means, my friend wins her case. If the lawyer is right my friend has no heat, no plumbing, and will have to move and pay all the associated costs for breaking the lease.

OR, we can settle this thing out of court in the next few days through negotiations, and it looks like the best we can get from the landlord is that he'll fix the problems if she pays half - amounting to about $2,000.

That's why my question still is this: Does anyone know of any case law surrounding N.C.G.S 42-41 that can give me an indication of how the courts construct this statute?

 

[BL]

Didn't you say at first the LL gave permission to remove the heaters ?

Now you are saying he did not ? He would remove them , and actually removed one .

If you can convince the Judge , or get the LL to admit he did indeed remove at least one heater w/ the intent to remove both at your request, wouldn't his and his Lawyers' argument be mute ?

 

[gmcgann]

The landlord said HE would remove the heaters. He is a retired electrician, and could legally remove them under his son's license (also an electrician.) My friend removed the other heater herself because she was tired of waiting for him to get around to it, and also because the landlord is old and forgetful, and he left the power on the heater circuits - a fact she discovered when she was putting a new piece of baseboard in to cover where the heater had been removed and got shocked. She cut the breaker herself, and removed the second heater.

According to the lawyer, the landlord never gave her permission to remove the heaters herself. Technically, she couldn't have done so herself because it required an electrician. Even though the landlord had no problem with what she had done, and actually was happy because she had done it for him, she did it without asking permission first.

That's the problem - the lawyer now says because she did it without asking permission that she violated the lease and the law, and the landlord has no obligation to repair anything that broke over the last three months because of 42-41.

 

[gmcgann]

Post edited.

 

[longneck]

That seems a bit extreme. I can understand that position if there was a causal relationship between the repairs/damages done by the tenant and the subsequent damages. For example, if removing the baseboard heaters caused the central heating to burn out because of over-work, then that would make sense.

Or to use your broken window example: if the tenant broke the window and failed to fix it, then the LL would not be responsible for damaged carpeting and wall paint from bad weaher let in by said window. But the LL should still be on the hook is a water line burst in the bathroom.

So what does the septic system have to do with electric baseboards?

If you want the case law, have the lawyer produce it. As part of his job responsibilities as your frind's lawyer, he should also be looking for case law to the contrary. If he didn't, then when the case gets to court he will be very unprepared when the other side's attorneys present their case law.