Today’s question comes straight from my Ask a Lawyer submission form. And it’s by a landlord who asked can I charge my tenants the first $100 for repairs in Maryland?
So, I figured I would walk you through my legal analysis of the question so you can see how a lawyer thinks in real-time. I do this by asking questions, and then thinking them through.
Why Wouldn’t You Be Able To Charge Your Tenants The First $100 in Repairs?
This is the first question I ask. Laws work in the negative. By this I mean they don’t tell you what you can do, they tell you what you can’t do.
You can’t charge residential tenants a late fee that exceeds 5% in MD. Why? Because there’s a law that says you can’t do it. That is the reason you wouldn’t be allowed to have a 10% late fee. It’s really that simple.
Is there a State law that prevents landlords from charging tenants the first $100 to make repairs?
No there is not. But the analysis doesn’t end there. Counties can decide to strengthen (but not weaken) tenant protections with their local laws.
Is there a County Law That Prevents Landlords From Charging Tenants The First $100 To Make Repairs?
I don’t think so but check your County’s local landlord-tenant code. There are 24 Counties (including Baltimore City) in Maryland and I’ve only helped landlords evict tenants in six of them. So I do not know the answer for each individual County.
Where my practice is based in Prince George’s County, there is not a law that prohibits this practice.
Are There Any Other Laws That May Indirectly Prohibit From Charging My Tenants To Make Repairs?
So, we’re not in the clear just yet. Just because there’s no law that explicitly states you can’t do something doesn’t mean that there isn’t one that can be construed to prohibit your desired activity. Md. REAL PROPERTY Code Ann. § 8-211 gives landlords an obligation to make repairs on the premises if there are dangerous defects. For more information on what these defects are check out my blog post on rent escrow in Maryland.
But here’s the thing, this obligates the landlord to make the repairs. But it doesn’t say that she has to do it for free. Landlords must make repairs for serious defects whether they are paid by the tenant or not.
Why Can’t I Charge My Tenants $1,000,000.00 To Make Repairs?
I know this question sounds ridiculous, but sometimes you have to ask extreme questions to push your thinking. See, just because something is not in the landlord-tenant code does not mean that there is not another body of law that we must consider when navigating the landlord-tenant relationship.
When you are a landlord you are in the business of providing housing services. Your tenant is a consumer. So you are also in a business-consumer relationship.
This means that your tenant is also protected by the Maryland Consumer Protection Act. So that is another set of laws we must consider.
The law prohibits landlords from engaging in “unfair, abusive, or deceptive” trade practices. It’s obviously “unfair” to charge tenants $1,000,000.00 to make repairs. That is very clear.
But is it unfair, abusive, or deceptive to charge tenants the first $100 to make repairs?
Let’s go with an actual hypothetical. Recently my very old water heater broke and I had to have it fixed so that’s what I’m going with. Let’s say your rental unit has an old water heater and it breaks.
Can You Charge The Tenant The First $100 To Have The Water Heater Repaired?
I’m leaning towards a no. If an old water heater breaks due to ordinary wear and tear, then it’s the landlord’s sole responsibility to have it fixed and pay for the repairs. By charging the tenant for the first $100 then he is passing off his cost of doing business to the consumer.
But what if the water heater is new and breaks because of the tenant?
You can probably hold them responsible for the entire replacement cost.
What Does Your Lease Say?
We’re over 650 words in and I haven’t mentioned contracts. Why is that? Because any contract clause that is contractual agreement that is contrary to the law is null and void. You would not believe how many landlords think that they can rent a property to a tenant “as is” because they included it in a lease term.
That said, if you plan on charging your tenant the first $100 to make repairs, at the very least your lease must state it.
So Can I Charge My Tenant The First $100 To Make Repairs?
It depends. First, make sure your contract allows you to do it. Feel free to hire me to read it for you.
Second, it depends on the repair.
When Would It Be Appropriate To Charge A Tenant $100 To Make Repairs?
I explained earlier when I thought it wouldn’t be appropriate to charge a tenant for repairs. So here’s an example of when I think it would be appropriate.
Let’s say your tenant regularly clogs up the sink or shower with their hair or hygiene products. Is it unfair for a landlord to charge the tenant the first $100 to make repairs? No it’s not. Why not just pass off the entire cost?
Can You Simplify This By Creating A Simple Rule For When It’s Okay To Charge Tenants The First $100 To Make Repairs?
Yes, I can.
A landlord can charge a tenant the first $100 to make repairs if (1) its in the lease agreement and (2) he is not passing off his cost of doing business to the tenant.
But Brian, Are You and Your Rule Correct?
Maybe not. That’s just how the practice of law works. Another attorney may tell you it’s perfectly fine to charge your tenants $100 for each repair if it’s in the lease agreement. Another may go in the complete opposite direction. This is why I always recommend consulting with an attorney that you trust.
If you think I may be the attorney for you feel free to contact me.