The Perils of the Unlicensed Contractor Repair
Published on: Tuesday, December 15th, 2015
by Aaron Weiner, Esq.
Many residential landlords use a good maintenance person to do most repairs, even electrical and plumbing. The practice saves time and money. The landlord may not even be aware whether any of the work performed required a licensed professional. If the repair is done correctly, no harm no foul, right?
But beware of the litigious tenant who is creative about getting out of their rent obligations.
A Rental Dream Turned Nightmare
Once upon a time-in this hypothetical situation—a happy landlord had a happy tenant. The landlord had his own employees do some electrical and plumbing repairs in the home. Everything seemed to be working well.
With the landlord’s permission, the tenant moved out and tenant’s relatives moved in. The relatives began storing their landscaping and junk business in the yard. Neighbors complained. The landlord could not get the tenants’ cooperation in removing the nuisance and decided to see if the City would address the problem. The City ticketed the tenants.
But rather than comply and let it go, the tenants were vindictive. They withheld rent and turned around and requested the City inspect the premises for Code violations. The tenants suspected that the landlord had used unlicensed employees to do the previous work in the home. The City found that various repairs had not been performed by licensed contractors as required and cited the home for the Code violations.
Some time passed during unsuccessful attempts to negotiate with the tenants. Losing patience, the landlord decided to evict the tenants for the non-payment of rent.
The tenants’ defense: the landlord had no right to collect rent because the home was not compliant with Code. In fact, the tenant sought a refund of all the past rent and sought attorney fees for the landlord’s alleged willful non-compliance.
On the tenants’ side, the landlord/tenant law specifically required that the landlord supply premises in compliance with the statute. The statute required that the landlord, “substantially comply, after written or actual notice, with the applicable housing codes materially affecting health and safety.” Even if the electrical and plumbing repairs were done correctly, arguably compliance with those Codes materially affects health and safety.
Did the landlord “have actual knowledge” that the work at the home required a licensed contractor?
On the landlord’s side, the landlord/tenant law provides the tenant the right to give notice of Code violations and the landlord may avoid termination of the lease with timely remedy. In addition, the law specifically says “an aggrieved party” has a duty to mitigate and avoid damages, so if the tenants suspected repairs were not to Code when they moved in, shouldn’t they have given immediate notice?
The statute preserves the right of the tenant to pursue damages in addition to remedy, but how were the tenants damaged?
Should the tenants be able to recover attorney fees for the landlord’s willful breach even if they were not damaged?
What about the tenants’ apparent opportunism, lack of good faith, and arguably willful non-compliance with the rent obligation?
The action for possession would be decided by a Judge, but how can the landlord predict how the Judge would react to the Code violations?
The Judge could determine that however well intended the landlord or skilled his employees, the regulation is there to protect health and safety; the Judge could decide to make the landlord an example.
Would the Judge grant the tenant emergency discovery or a continuance to determine what the landlord actually knew?
Would the court ignore the right to a speedy trial on possession?
The attorney fees at stake, after the tenant has done discovery and briefed the matter could be substantial, and the tenant could theoretically add even more fees by demanding a jury trial on their claim for a refund of all their rent.
Although the landlord seems to have been well intended, the failure to assure use of licensed contractors has given a litigious tenant leverage.
Are the cost savings worth the risk?
Originally published at SES