Landlord won't pay full cost to fix air conditioner

Written by James McKinley, Steven Kellman

Question: I have a commercial retail building and have received a bill from my tenant for the repair of the air conditioner. I was not called prior to repair, no bids were taken, and the bill is a rather high total amount. The tenant's explanation was that she was in the middle of classes and had to repair it immediately. My tenant did not attempt to call me or advise me of this until two weeks after the air conditioner was repaired. I am not inclined to comply with the request for full reimbursement because of the manner in which this was handled. I would consider splitting the cost. What is your opinion?

James McKinley, an attorney for landlords, replies:

In the case of a lease for nonresidential property, the written lease agreement between the parties will determine who is responsible for repairing the air conditioner. Both the landlord's and tenant's obligations will be spelled out. Two common types of commercial leases are the gross lease, and the triple net lease. With a gross lease, the tenant is responsible for paying a flat rent, and the landlord is required to pay all expenses, such as taxes, utilities, insurance and maintenance. In the case of a triple net lease, the tenant is required to pay all those expenses. Many commercial leases require that the tenant obtain and pay for a service contract to maintain the air-conditioning system, and to pay for any necessary repairs. The bottom line is you need to carefully read the lease to determine whose responsibility the repairs are. Even if the air conditioner is your responsibility, it is likely that the lease requires your tenant to notify you of the problem, and give you a reasonable opportunity to make the repairs. If the repair is your responsibility, it would be reasonable to offer to split the cost.

Steven Kellman, an attorney for tenants, replies:

Unlike residential tenancies, in commercial tenancies, the lease is very much the controlling force between the parties. The law steps in very little to protect the commercial tenant against "unfair" situations or potential hardships. For example, commercial tenants may not withhold rent based on defects in the building such as a plumbing leak and so on. Many commercial landlords and tenants get confused about their rights and obligations in commercial law based on their common-sense interpretations of what seems fair and what goes on with residential rentals.

James is absolutely correct when he directs you to read your lease. It should specify who must maintain the Heating, Ventilating and Air Conditioning (HVAC) system. In some commercial leases, the landlord will be responsible for part or all of the building HVAC system. Some leases place the burden on the tenants along with having to pay maintenance contracts. Many leases will not allow tenants to make any repairs or modifications without the landlord's consent, and many require the tenants to give adequate notice before a repair must be made by the landlord. Since the work was already done, you should read the lease to determine who is responsible. If you are responsible, and the full bill is more than you could have gotten it done for, you could offer to pay what it would have cost had you been properly notified and had the work done with your contractor.

Question: I didn't return a key to the landlord after moving out. Now he says he'll deduct the cost of a new lock and key set from my security deposit. Can he do this?

Tenants' attorney Kellman replies:

A landlord may deduct money from a tenant's security deposit for back rent owed, cleaning, and damages to the rental occasioned by use beyond normal wear and tear. The keys belong to the landlord and must be returned at the end of the tenancy. Since you did not return all the keys, your landlord is within his rights to replace the keys for the new tenant at your expense. Because you have a copy of the key, the landlord should have to actually change the locks to protect against liability in case of a future unauthorized entry by a key. That means you will have to pay for the costs of re-keying the existing locks. Some landlords will take this opportunity to upgrade or change the locks at your expense, which means that you are improving the property with your deposit money. Of course, he is not supposed to do that, but he can also argue that re-keying an old lock may not be practical so new ones are needed. The best thing to do to protect yourself is to return all door keys, mail keys and garage-door openers when vacating. In this way, if the landlord feels it proper to re-key or change the locks for a new incoming tenant, it will be at his or her expense as a routine cost of doing business and not your obligation from the deposit.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of "Property Management for Dummies" and co-author of "Real Estate Investing for Dummies," and San Diego attorneys Steven R. Kellman, director of the Tenant's Legal Center, and James McKinley, principal in a law firm representing landlords.

E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

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