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posted: 8/7/2011 12:01 AM

Factors determine whether broken AC warrants immediate fix

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Q. I am a new landlord and recently faced a situation that frustrates me. I have a tenant in a moderate-climate area who said his air conditioning unit stopped working, and he wanted me to have it fixed. The next thing I knew, he went ahead and called a technician to the rental house without my permission and is expecting me to pay for the repair. What recourse do I have in this case?

A. As the landlord, you would be responsible for the maintenance and repair of an air conditioner that was part of the features or amenities that you provided to your tenant as part of his rental agreement. However, once you turn over possession of the rental property to your tenant, you need to rely upon your tenant to give you notice if the air conditioner is not functioning in some aspect.

Typically upon being advised by the tenant that the air conditioner is not working properly, the landlord will have a qualified repairperson investigate the complaint. This could involve the landlord coming out to the property and performing the repair, or it may be a handyman who is experienced in basic servicing of the unit for lubrication and changing filters or verifying that there is power to the unit or some other issue unrelated to the actual air conditioning unit.

If it is determined that the malfunction is more serious or involves recharging the unit in accordance with federal and state laws for refrigerants, then a licensed HVAC (heating, ventilating and air conditioning) professional should be used.

In your case, it is your contention that your tenant did not give you an opportunity to take any of the steps above but contacted a contractor and had the unit repaired and now expects you to pay for the full cost. There are several facts that would need to be evaluated to determine if your tenant acted reasonably in calling for a HVAC repair professional rather than giving you the chance to respond.

The most obvious is how much advance notice you were given before the tenant called for the repair. Also, how was the notice given? If the tenant mailed you a note or a letter, he would need to allow for mailing time, which can be three to five business days.

If he emailed you or left a voice mail, that would shorten the time typically required.

Or if the tenant actually spoke to you in person or received a reply back that you got the message, then it is reasonable for him to assume you had actual notice and then needed to get back to him with your planned response.

If your dispute were to ever end up in a small claims court, the court would want to know when you were notified, how you were notified, and if you -- as the landlord -- were given a reasonable opportunity to investigate the complaint and take the appropriate action to resolve the complaint if it was legitimate.

Another factor would be the weather conditions at the time. If you were given notice of several business days and the weather was very hot, then your tenant taking action on his own may be reasonable. In such a case, I wouldn't get overly concerned about the fact that the tenant went ahead without your permission.

Here is what I suggest: If you believe that the tenant acted reasonably and the work performed was by a qualified professional and the charges fair, you should go ahead and pay for the cost of the repair of the air conditioning unit. Your tenant may have done you a favor by locating a qualified vendor, scheduling the work, and even being there if necessary to meet the worker and have the work done. You might want to take this opportunity to reinforce in writing the proper method of notifying you of a problem in the rental unit and what the tenant can expect as far as a response time.

However, if you feel that the tenant was unreasonable -- maybe it really wasn't that hot, or he called you and then had the work done the very next day, or he "hired" a family member or friend at above-market rates -- then you have every reason to challenge the tenant.

In such case, I would suggest you look at what it would have cost you if you had to hire someone to do the work or even your own opportunity cost if you were qualified to do the work yourself. You could offer to reimburse the tenant immediately if there is mutual agreement or you could let the tenant take a credit off the next month's rent.

If the tenant was unreasonable and refuses to compromise as I suggested above, then you will likely find the tenant deducting the amount of the repair from his rent sometime in the near future. You will then need to reach an acceptable agreement or serve him with a legal notice for the unpaid rent. This is not a good scenario for either you as the landlord or the tenant.

Steve Kellman of The Tenants Legal Center in San Diego, Calif., strongly cautions his clients to not withhold rent but to take other actions such as filing a small claims lawsuit. Having to defend the nonpayment of rent can be difficult in some courts and may be determined by the court to be a breach of the rental agreement. All in all, both landlords and tenants are better served by reaching a fair and equitable compromise instead of resorting to legal action.

You indicate that you are a new landlord, and that is great. But be aware that one of your responsibilities is to be able to handle any and all legitimate tenant repair requests in a timely manner. So you need to establish a list of vendors and suppliers and contractors that you can call on short notice when issues arise.

If you as a landlord are not interested in performing these tasks or feel that you are not capable, then you should reconsider whether owing rental properties is right for you, or you should hire a property manager or management company that has these skills and a ready list of competent professionals as needed.

It also should be pointed out that in my 30-plus years of experience, pipes burst and appliances break almost on cue for when you are not available or in the middle of the night or on the weekends. Luckily, we live in a time when communication services are excellent and if you are prepared you could likely even handle such an emergency call from a mountaintop or a cruise ship. The key is having already established a broad base of competent professionals that can handle any situation in your absence.

•Property manager Robert Griswold is author of "Property Management for Dummies." Email rgriswold.inman@retodayradio.com.

$PHOTOCREDIT_ON$ 2011 Inman News Features$PHOTOCREDIT_OFF$

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