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tenants rights after fire


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#1 Dirgecaller

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Posted 07 February 2013 - 12:09 PM

There was a fire in the townhome I was renting on Dec 30. The home is unliveable and is being repaired. It is estimated that the home will be finished around Apr 1st.

My landlord expects me to carry out the lease. My wife and I had been thinking about putting an offer on a home. So this just pushed us in that direction. I was told in early January that it would be 6-8 weeks to remodel. I put off dealing with the idea of breaking the lease to keep my options open. Well, our home purchase fell apart at the last minute at the end of January. I was told by the landlord that the remodel hadn't even gotten underway and it is still estimated 6-8 weeks. (end of march)

I told her over the phone right then that I'm terminating the lease and want my deposit back. ($1400) She said fine but that they wouldn't return the deposit due to me breaking the lease. If the place could have been finished by mid Feb, I would have been willing to wait it out. But I feel I just have to move on. (not to mention, my insurance won't cover my stuff in storage for that long a time. In their eyes, I needed to relocate. )

Needless to say, I'm completely miffed. We've been staying at my inlaws while dealing with all this. I have now found a place to live. We move in on Feb 15th. But I really want my deposit back. It just doesn't seem fair at all. (the fire was not my fault..the neighboring unit's chimney is to blame)

I've looked up New Mexico law. Here is what it says about Tenant's rights after a fire.

Resident rights following fire or casualty.

A. If the dwelling unit or premises are damaged or destroyed by fire or casualty to an extent that enjoyment of the dwelling unit is substantially impaired, the resident may:

(1) vacate the premises and notify the owner in writing within seven days thereafter of his intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating; or

(2) if continued occupancy is lawful, vacate any part of the dwelling unit rendered unusable by the fire or casualty, in which case the resident's liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit.

B. If the rental agreement is terminated, the owner shall return the balance, if any, [of] prepaid rent and deposits recoverable under Section 18 [47-8-18 NMSA 1978] of the Uniform Owner-Resident Relations Act. Accounting for rent, in the event of termination or apportionment, is to occur as of the date of the vacation. Notwithstanding the provisions of this section, the resident is responsible for damage caused by his negligence.


Well B certainly supports me. But (1) is the issue. How to interpret it. Did I have only 7 days to terminate the lease from the time of the fire? Or do I just have 7 days to give them written notice from the time I decided to terminate?

I believe I have grounds to terminate the lease anyway simply due to the fact that the owner can't provide me with a home to live in. But I want to address the above question first.

Thank You...

#2 Guest_FindLaw_Amir_*

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Posted 07 February 2013 - 12:26 PM

What does the lease agreement state about terminating your lease?

#3 Dirgecaller

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Posted 07 February 2013 - 12:37 PM

It really doesn't say anything as far as I can tell.

Here is the only bit and it just relates to fires. There are no other terms that mention breaking the lease except for the normal end of the lease agreement.

16. Damage to Premises. If the demised premises, or any part thereof, shall be partially damaged by fire or other casualty not due to Lessee’s negligence or willful act or that of his employee, family, agent, or visitor, the premises shall be promptly repaired by Lessor and there shall be an abatement of rent corresponding with the time during which, and the extent to which, the leased premises may have been untenantable; but, if the leased premises should be damaged other than by Lessee’s negligence or willful act or that of his employee, family, agent, or visitor to the extent that Lessor shall decide not to rebuild or repair, the term of this lease shall end and the rent shall be prorated up to the time of the damage.

#4 Fallen

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Posted 07 February 2013 - 03:31 PM

Awfully long given the topic (just worth noting for future).

You aren't obligated to wait around for four months while the place is being repaired, even if the landlord or insurer is covering your living expenses in short-term housing. (That said, just for future reference, you don't want to talk about how you'd been thinking about buying a house as "out".)

You need to put conversations about this in WRITING, not leave it to over the phone or even texts. You send certified mail and show on letter that copy went regular mail, hand delivery, however. You summarize events and conversations.

No need to quite NM law to us; you ask what it is you don't understand about it, if anything. Law will trump lease generally, but your lease doesn't say you can't terminate because you don't want to wait around for house to be fixed.

Seems to say you can give the landlord a 7-day notice of termination.

"Did I have only 7 days to terminate the lease from the time of the fire?"

No. :)

Nothing "prompt" about four months at any rate (and the law won't require you to sit around and twiddle that long).

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#5 adjusterjack

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Posted 07 February 2013 - 04:23 PM

Interesting dilemma.

47-8-31. Resident rights following fire or casualty.
A. If the dwelling unit or premises are damaged or destroyed by fire or casualty to an extent that enjoyment of the dwelling unit is substantially impaired, the resident may:
(1) vacate the premises and notify the owner in writing within seven days thereafter of his intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating

Here's my take on it.

The fire was Dec 30. If that was the date that you vacated then you had seven days from Dec 30 to notify LL in writing that you were terminating the lease which would result in the lease terminating on Dec 30 necessating the return of any prepaid rent and deposit.

You've obviously gone way past the 7 day requirement.

Unfortunately, the law appears to have no contingency for non-compliance with the 7 day requirement.

So my best guess is that, theoretically, the lease continues as is and you would still be obligated to pay your monthly rent throughout the remainder of the lease period even though you did not have use of the premises.

That, of course, is unconscionable because it substantially penalizes you for something that you have no control over and your non-compliance doesn't damage the LL any further than the fire has already damaged her.

So let's look a little further and see what else we can find in the statute.

47-8-20 addresses the owner's obligations with regard to habitability:

http://law.justia.co...section47-8-20/

47-8-27.1 addresses the consequences of the owner's failure to comply with 47-8-20 and the tenant's options.

http://law.justia.co...ction47-8-27.1/

It's a bit of a stretch to apply that to your situation but let's make the stretch. That gives you the possibility of getting your deposit back or getting a rent abatement. Unfortunately, it requires (again) that you furnish written notice to the owner. And you, apparently, have not done that.

47-8-27.2 addresses rent abatement.

http://law.justia.co...ction47-8-27.2/

The trouble is that all the statutes emphasize written notice. I have no clue as to how a court would view your lack of written notice.

I doubt that a court would make you pay rent during the time the dwelling was not available to you.

Generally, what a court is concerned with is whether your actions caused your landlord any monetary damages that would necessitate allowing her to keep your deposit.

In this case I think not because it shouldn't make any difference whether you gave written notice or not. She can't do anything with the house until it's repaired anyway. She would be profiting from your non-compliance by keeping your deposit which is generally not permitted in contract law.

Whether a court would share my analysis is anybody's guess.

Bottom line: If you feel that she wrongly keeps your deposit, you have the option of suing in small claims court and putting the issue before a judge.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.





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