Provo Mayor John Curtis has become involved in helping the residents of The Boulders apartment complex.  They have been without hot water and heat for a week now, due to a corroded natural gas line.  Hopefully, Mayor Curtis can help.

In the meantime, I thought this a good opportunity to post about the rights of tenants in Utah.  Unfortunately, for tenants, the law in Utah is written in favor of landlords.

Traditionally, tenants had no rights against landlords when the premises was uninhabitable.  If you think about it, that actually makes sense.  Hundreds of years ago, when the law arose, tenants generally rented raw land from a landlord.  The tenant was responsible for digging their own outhouse, digging their own well and chopping their own firewood.

Times have changed.  Nowadays, many renters expect the landlord to deliver a finished housing unit, complete with utilities.  That is especially true in apartment buildings.

In 1990, the Utah legislature passed a law that requires landlords to do just that.  The law can be found at Utah Code 57-22-4.  Among other things, it requires a landlord to maintain plumbing, heating and hot and cold water.

So what happens if a landlord doesn’t do that.  Unfortunately, for the tenant, not much.  To benefit from the law, the tenant must give written notice to the landlord.  This doesn’t sound like a big deal but many tenants are unaware of this requirement.  The written notice must contain certain information and must be served on the landlord in a specific way.  In my experience, tenants often phone or email.  When that happens, they can’t take advantage of the law.  Another problem with the law is that the tenant can only benefit from the law if the tenant complies with a long list of requirements. One of those requirements is that the tenant is current on his or her rent.  This is a problem for tenants who stop paying rent when the heat goes off.  Their failure to pay rent, relieves the landlord from any obligation to fix the problem.

Once the tenant gives written notice of the defect, the landlord gets three days to fix the problem.  If the landlord doesn’t want to fix the problem, the landlord can choose to terminate the lease and the tenant must leave.  If the landlord terminates the lease, the tenant must pay rent in full up to the time the lease is terminated.  This requires the tenant to pay rent after losing heat and hot water up until the time the landlord elects to terminate the lease.

So you might be wondering, what rights does a renter get from this statute.  Here are the tenant’s remedies:

1.  If the landlord fails to repair the problem, within three days, the tenant is allowed to either (a) fix the problem and deduct the repair price from the rent or (b) terminate the lease and move out.  In that case, the tenant gets rent refunded back to the time of the three day notice.

So how does this apply to the Boulders?  Because the landlord has failed to maintain hot water and heat, the landlord is in breach of the statute.  Each resident must give a written notice to the landlord and then give the landlord three days to fix the problem (the statute doesn’t say how long this is).  If the landlord still doesn’t fix the problem, each tenant can elect to either fix the problem and then deduct the repair cost from future rents or move out.

This isn’t much of a remedy for residents of The Boulders.  Because the repair is quite expensive, most tenants cannot afford to fix it and then deduct that cost from future rents.  Instead, their only real remedy is to move out.

The tenants have one other possible remedy.  In 1991 the Utah Supreme Court did give tenants some rights under the common law.  The court said that every residential lease automatically has a “warranty of habitability” written into it.

Boulder’s residents could argue that failing to maintain hot water and heat in the complex for an entire week is a breach of that warranty.  Further, since the landlord breached the rental contract, the tenants are entitled to leave.  If the landlord sues them for leaving early, they can raise a defense to that lawsuit and win.

The problem with this is that no appellate court has decided this exact issue.  The closest case is a 2007 case in the Court of Appeals.  In that case, the Salt Lake County Health department cited a landlord for numerous violations.  The premises were infested with cockroaches, the swamp cooler leaked, a toilet leaked and the house had many other problems.  The trial judge (Judge Iwasaki) found that the conditions were unbearable, inconvenient and uncomfortable.  Nevertheless, he said the home was habitable.  Therefore, the landlord did not breach the contract.  The Court of Appeals sustained Judge Iwasaki’s decision.

The residents of the Boulders have a slightly better argument.  The law passed by the legislature uses the word “habitbility” several times and seems to say that failing to maintain heat and water makes the premises uninhabitable.  If the courts were to apply that statutory language to the implied warranty of habitability, the Boulder tenants should win.

This incident illustrates the need for a tenants bill of rights in Utah.  Tenants need some sort of remedy that is tailored to their financial ability to comply.  Most tenants cannot afford an attorney and don’t understand the legal nuances that the law imposes on them.