Phil Querin Q&A: Landlord vs. Tenant Responsibility For Condition of Grounds

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May 20, 2014

Question: A resident in our community has ants in her home. She says they are coming from the ground around the home and has had an exterminator out who confirms that the infestation is coming from the ground. The resident demands that we pay for the exterminator and that the infestation be controlled at the expense of management. WE do not believe it is our responsibility. What are your thoughts?

Answer: As to whether you or the resident is responsible for the condition of the ground upon which the home sits, it depends on whether the infestation existed at the time of commencement of the tenancy. If “yes,” the it’s your responsibility to abate; if “no” then it’s the tenant’s responsibility. Here is a summary of the applicable statute. I have highlighted that portion of the law which applies to your issue: ORS 90.730 [Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition.] provides in relevant part: • A landlord who rents a space for a manufactured dwelling shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition. • The landlord does not have a duty to maintain a dwelling or home. • A landlord’s habitability duty includes only the following: o A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord; o If required by applicable law, a drainage system reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order; o A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord; o An electrical supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord; o At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin; o Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of commencement of the rental agreement, and for which the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange for their removal; and o Completion of any landlord-provided space improvements, including but not limited to installation of carports, garages, driveways and sidewalks, approved under applicable law at the time of installation. • A rented space is considered unhabitable if the landlord does not maintain a hazard tree as required by ORS 90.727. • A vacant space in a facility is considered unhabitable if the space substantially lacks safety from the hazards of fire or injury. • A facility common area is considered unhabitable if it substantially lacks: o Buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin; o Safety from the hazards of fire; o Trees, shrubbery and grass maintained in a safe manner; and o If supplied or required to be supplied by the landlord to a common area, a water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord. • Note that the landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if: o The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord; o The agreement does not diminish the obligations of the landlord to other tenants on the premises; and o The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated. The term “vermin” is defined as: “Small insects and animals (such as fleas or mice) that are sometimes harmful to plants or other animals and that are difficult to get rid of.” [http://www.merriam-webster.com/dictionary/vermin] That’s a pretty broad definition, and I’m going to assume that “vermin” include ants. So the question is, was this condition one that existed at the commencement of the tenancy? If the resident had been at the space for years and never complained until now, I suspect they [or their exterminator] would have a tough time establishing when the problem first occurred. As you know, pests come and go; they could be seasonal, weather related, food related, hygiene related, etc. Chances are that if one resident has ants, others may as well. Had the resident come to you before hiring the exterminator, I would have suggested that you find out how widespread the problem was, and if it was prevalent throughout the community [or a specific area within the community] perhaps work out some cost-sharing arrangement along with a periodic maintenance schedule to eradicate the problem. That was not done here. However, good community relations suggests that you find out the breadth of the problem, and if it affects several residents, discuss a solution with all of them that works for your pocketbook, and the residents’ budget. Whether you pay for the exterminator for one resident, might set a bad precedent, since it could encourage others to do the same. That’s why you want to find out the scope of the problem.