What you can and cannot charge your tenant if a disaster strikes the unit

If a unit remains occupied by a tenant, but is slightly damaged from a disaster, can a landlord continue to charge the full rent?

We would recommend that you follow the same general principals that apply for any damages to the unit that were not caused by the tenant or his/her guests. That being, if you have notice of the damages to the unit, and do not make repairs after you have been given reasonable time to do so, the tenant may legally be permitted to pay a reduced rental amount.

Clearly, what is considered “reasonable time” really depends on the circumstances of your individual case. For instance, if you have a 30 unit building with each unit having substantial damages due to a disaster, it would be reasonable for a tenant in a unit with slight damage to wait much longer for the repairs than a tenant in a three unit building in which his/her unit is the only one needing any repairs.

Another issue is whether the slight damage to the unit—as described in your question—constitutes a “reduction in housing services” or endangers the life, health, property, safety or welfare of an occupant or any person. In either of these situations, the tenant would be entitled to a reduction in rent. If the damage is merely cosmetic or “slight”, the tenant is not permitted to pay a reduced rent. However, if it affects their use and enjoyment of the premises (no hot water) or potentially their health and safety (shattered windows), the tenant may pay a reduced rent if repairs are not made as described above.

In all situations where a tenant advises you of repairs needed in their unit, you should use your best efforts to make the necessary repairs promptly. In a disaster situation, you should certainly prioritize what repairs to do first to avoid rental losses and ensure the welfare of your tenants. If you expect a delay in conducting any of the repairs, you will want to provide the tenant details in writing that establish the “reasonableness” of the expected delay. Of course, if you have a tenant who pays or demands to pay less than the contract rent, you should consult a qualified landlord-tenant attorney before taking any action against the tenant.

By Sally Morin and James M. Millar of Millar & Associates (415)981-8100.