landlord/tenant Q&A

CATHERINE M. MATTHEWS (R), GRI
Broker-In Charge, Callahan Realty, Ltd.
Past President, Oahu Chapter
National Association of Residential Property Managers

Q. I own half of a duplex. The roof is leaking in the upstairs bedroom, it is not super bad but I am worried it will get worse. I have attempted to get it repaired but all three companies I have called out said the entire roof needs to be replaced. The document I got when I purchased the house says that the owner next door and I split the expense. The other owner says they want to do it but do not have the money. I have a tenant that has a brown spot on their master bedroom ceiling; they have been nice but are starting to get irritated. I am concerned if this gets worse, I may lose a good tenant and/or eventually have significant damage, I know I have obligations to make the repair. What can I do?

A. When duplex, coveted community associations or condominium owners purchase their properties, they normally have agreements that are made part of their deeds. So it is not only in the paper you refer to but most probably part of the deed itself. These agreements spell out each owner’s legal responsibilities when repairs to shared elements (like the roof, fences or driveways) are required. It should also detail the percentage that each owner must pay. If one owner fails to abide by these agreements, it can be very costly for the other owner. It could lead to lost rent (if a rental) and further damage to your property. You should speak to your attorney to discuss your options to get the problems resolved and not rely on my suggestions alone.

Roof leaks can be very tricky. Even if they re-roof your half of the house, roofers cannot guarantee that this will solve the problem and that the leak will not recur somewhere else. As a result, they will usually not do that job. However, as a landlord you are still required to keep the premises in a habitable condition. This does put you in a precarious position.

There are a couple things you can do if the owner next door cannot fix the roof right now. I would be proactive with the neighbor; I would suggest reviewing the proposals with them, pick one and suggest opening up a joint account (with consultation from your attorney) or each opening up a separate account with the agreement to deposit certain amount each month for the sole purpose of re-reroofing, you would share the deposit figures with each other as a show of good faith. Tell them you don’t want to be too personal but can they get a loan, charge some of it, can they be creative. Impress the importance and set deadlines. At a minimum you have a plan and a timeframe. If you explain the situation to the roofer you choose to re-roof down the road, they may be willing to do something temporarily to help out in the interim. It would depend on the problem. If the owner next door is not willing to make a plan with you, then you know you may have to take some sort of legal action to protect your property. Communicate openly and honestly with your tenant, given all the facts they may be more willing to live with it for the time.

If it gets troublesome and becomes an inconvenience for your tenant, maybe a rent reduction or some sort of incentive would be prudent. Just be sure to keep a written record with your tenant and the neighbor, communicate by email, even it is it a follow up recapping your telephone call. This will help down the road if this escalates in any way.

If the leak becomes major, Section 521-65 of the Landlord Tenant Code gives your tenant specific remedies and holds you under more pressure. The tenant may “Immediately quit the premises and notify the landlord of the tenant’s election to quit within one week after quitting, in which case the rental agreement shall terminate as of the date of quitting, but if the tenant fails to notify the landlord of the tenant’s election to quit, the tenant shall be liable for rent accruing to the date of the landlord’s actual knowledge of the tenant’s quitting or impossibility of further occupancy…” So, for example, there is a huge rainstorm on Saturday and the leak caused the bedroom to flood, the tenant has the right to vacate, as early as Sunday, and only pay rent until that day as long as they notify you that they left because the house not habitable. If they delay notifying you for a week, they are responsible until the day they tell you or you should have known. This really validates your concern and urgency to the neighbor to get this job done as quickly as possible. Plus there are always the concerns of mold growing whenever you have a water leak. I wish you luck; this is hard as you are trying to do the right thing and it is all not within your control.