We're getting to the time of year where many tenants in Madison are moving into new rental housing - many changes occur over August 15 of each year here in the city. The rest of Wisconsin is wise enough to make leases end on all of the days of the year instead of just one incredibly frantic day, but either way, one of the big questions we get from tenants, as they are moving into a new place, is:
"My landlord didn't _____ (clean, paint, repair), can I do it myself and get paid back?"
If you read this blog regularly, the answer shouldn't be a surprise to you: it's complicated. But there are some ways everyone involved can make it more obvious.
Let's start by looking at the laws. There are three important pieces here:
- According to Wis. Stat. 704.07(2), the landlord has the duty to maintain the rental unit and to keep it in a reasonable state of repair. When the landlord rents out a unit, there is an implied warranty of habitability (see this article for more information), which means that it should be livable when tenants move in.
- According to Wis. Stat. 704.05(3), tenants are not allowed to alter the unit without the "prior consent of the landlord." This means that if a tenant wants to make changes, even if it seems necessary (painting, replacing appliances, repairing something in need of repairs), that tenant should get agreement from the landlord (preferably in writing).
- According to Wis. Stat. 704.05(4), if a tenant makes changes while they are living in the unit (i.e., replacing fixtures), if they leave those additions behind, those fixtures and alterations become the landlord's property, and the landlord doesn't have a legal obligation to repay the tenant for those portions of left-behind additions to the unit.
The upshot here is that while the landlord is required to make repairs in order to give the tenant a reasonably habitable apartment, if there are more cosmetic things going on, and the tenant makes changes (which they shouldn't without the landlord's consent), then the landlord gets to keep those at the end of the lease without needing to pay the tenant back.
And the upshot of the upshot is that if a tenant doesn't have some kind of payment agreement before making changes, then the landlord doesn't seem to have a legal obligation to reimburse the tenant.
So, when a tenant is hoping to make some changes to the unit, how can they make it as angst-less as possible? By having clear communication ahead of time, of course. Some tips about the best advanced communication:
- Specify an exact amount for reimbursement for time in advance. The most common problem that comes to us in which tenants are anxious to take independent action involves the rental not being clean when the tenant moves in. Usually, when we hear about it, it's not really a livability issue (it's habitable, but also kind of yucky), and there's an element of timeliness involved (tenants don't want to move their nice stuff into a gross apartment, but they do want to move in quickly). Sometimes a tenant and landlord will agree that the landlord will pay the tenant by the hour, and then when the total comes to the landlord, the landlord isn't interested in paying it. A better solution would be to specify an exact total in advance, and agree to that amount. (In writing, please).
- Specify the exact actions to be taken. A landlord came to us a while back saying that when his tenants moved in, they wanted to paint, and since the move-in color was un-lovely, he said sure. When they moved out, though, he discovered that they had painted the fixtures in the bathroom (black, no less), something that was very costly to replace. The tenants were grumpy when they got stuck with the bill ("we told you we were going to paint!"), and the landlord was grumpy that they did something so silly. It could have been avoided if they'd had good communication ahead of time about what they were all planning to do. (In writing, please).
- Specify how the reimbursement will be paid. Sometimes tenants just go ahead and subtract what they believe they ought to be paid from the rent, and are shocked when they get an eviction notice because the rent wasn't paid in full. If deducting from the rent is how the landlord wishes to proceed, great, but make sure you all agree ahead of time. (In writing, please).
- The bigger the problem, the more likely it is that there will be a disagreement about the resolution. Occasionally, there are big repair issues in a rental unit, and a tenant sees that those things are a problem, but really wants to stay in the rental and just make it livable. It can feel like a good idea to "just do it myself" if a household member is handy. However, in this situation, it works better to have some kind of employment contract about the work to be done. Here's why: a while ago, a tenant came in who was having big plumbing problems in his bathroom. He fixed the leak, but the floor wasn't safe (long term water leaks), so he took the flooring and put some plywood down, just to cover it up and make it stable. But because the tenant didn't consult the landlord about the work, and the landlord didn't understand that the floor was such a big problem, the landlord charged the tenant for taking out the floors, which really rankled the tenant. Eventually, they figured out a more appropriate resolution, but it would have been much easier if there had been a really clear communication trail about the work to be done, and who was responsible for it. Sometimes, too, we hear about tenants who made the problems much worse as a result of doing amateur level repairs when a professional was really needed. At that point, everyone bears some financial responsibility for the problem, which can be very hard to resolve.
To be clear, it's not okay for a tenant to have an obligation in the lease where they maintain the unit. Now, tenants may have a separate employment contract with the landlord to maintain the unit, and that's okay. They may choose to make those repairs because it seems like the easiest solution, and that's okay. Tenants may also feel like the landlord should handle the repairs, and that's okay - see our pages on Repairs (Madison here) for more information about how tenants can make that happen.
* Hi! Did you know that we are not attorneys here at the TRC? And this isn't legal advice, either. If what we've written here doesn't sound right to you, talk about it with someone you trust. For help finding an attorney, check out our attorney referral list.