Mayor and Members of City Council:

I want to begin by saying that I support the overall intent of this ordinance. Tenants should not be forced to live in dangerous or genuinely uninhabitable conditions, and property owners who knowingly allow those conditions to continue without taking reasonable steps to correct them should be held accountable.

My concern is not with that objective. My concern is making sure the ordinance clearly distinguishes between a bad actor who refuses to maintain a property and a responsible landlord experiencing a legitimate maintenance issue who is actively working to correct it.

1. Notice to the Property Owner
The proposed ordinance does not appear to require that a landlord first receive notice that a condition exists before the prohibition against collecting rent applies.
I believe the ordinance should generally require a tenant to provide written notice to the landlord or property manager of a qualifying condition, unless the owner already has actual knowledge of the condition or an emergency makes such notice impractical.
A landlord cannot correct a problem that he or she does not know exists.

 

2. A Reasonable Opportunity to Cure
Once an owner has been notified, a responsible owner should be given a reasonable opportunity to correct the condition or demonstrate that they are actively working toward its correction.
For example, the ordinance identifies a lack of adequate operating heating facilities during the winter as a condition that could make a dwelling unfit for human occupancy. Heating systems sometimes fail in January. That fact alone does not distinguish a slumlord from a responsible property owner.

The important questions should be: Was the landlord notified? How quickly did the landlord respond? What reasonable steps were taken? Is the landlord actively pursuing the repair?

If an HVAC contractor cannot obtain a necessary part for three days, a landlord who immediately called the contractor, provided temporary heat where appropriate, and is actively pursuing the repair should not be treated the same as an owner who ignores the tenant for three weeks.

 

3. Emergencies Such as Sewage or Septic Failure

The same principle applies even to conditions that sound particularly alarming. The ordinance includes the presence of raw sewage or open sewer inside a dwelling. Certainly, no tenant should be expected to simply live indefinitely with raw sewage in a home.

But sewage intrusion does not necessarily indicate neglect.
A septic system serving an otherwise well-maintained home can unexpectedly back up or fail. The tenant should be required to promptly notify the owner, and the owner should be afforded a reasonable opportunity to contact a septic contractor, mitigate the immediate condition, and perform the necessary repairs.

Again, the distinction should be between the existence of a problem and the owner’s response to that problem.

4. Objective and Measurable Standards
I am also concerned that some of the terminology is too subjective for the consequences being proposed.
For example, the ordinance identifies a “lack of or inadequate hot water supply.”

What constitutes “inadequate”?

If a condition can result in a dwelling being declared unfit for human occupancy and make it unlawful for an owner to collect rent, the standard should be objective and measurable. Landlords, tenants, property managers, and code enforcement officers should all be able to look at the ordinance and understand exactly where the goalposts are.

5. Conditions Caused by the Tenant

The ordinance should also distinguish between conditions caused by an owner’s failure to maintain the property and conditions created by the tenant or another occupant.

Several of the listed conditions could potentially be tenant-created.
For example, a tenant could disconnect a functioning smoke detector because it sounds while cooking. A tenant could store gasoline or another combustible material improperly inside the dwelling. A tenant could begin occupying a basement or other below-grade space that was never represented or authorized as habitable space. A tenant’s accumulation of belongings or garbage could block an exit or create an unsafe condition.

Those conditions should absolutely be corrected. However, their existence should not automatically make a responsible property owner’s continued collection of rent an unlawful act when the owner did not create the condition, may not have known about it, and is taking reasonable steps to have the tenant correct it.

Otherwise, the ordinance creates the possibility that the very person whose conduct created the violation could use that violation against the property owner.

 

6. What Happens After a Dwelling Is Declared Unfit?

I would also ask Council to clarify the practical consequences of a code enforcement officer declaring a dwelling unfit for human occupancy. If the dwelling is truly unsafe for human occupancy, presumably the tenant should not continue occupying it.

If so:
How much time does the tenant have to vacate?
What happens to the tenant’s personal property?
What responsibilities does the owner have during that period?
What responsibilities does the tenant continue to have?
Is rent simply abated during the period the dwelling is legally uninhabitable?
Once the violation is corrected and the dwelling is approved for occupancy again, does the existing lease resume and remain enforceable for the remainder of its term?
What happens if the tenant refuses to vacate an unsafe dwelling while repairs are being attempted?
 

Those questions should be answered before the ordinance takes effect rather than being left for landlords, tenants, code enforcement officers, and ultimately the courts to resolve afterward.

7. Consistency With North Carolina Landlord-Tenant Law

Finally, I believe the City should carefully consider how this ordinance interacts with the rights and obligations already established under North Carolina General Statute Chapter 42.

The City’s ordinance should complement state landlord-tenant law rather than create conflicting standards or uncertainty regarding the respective obligations of landlords and tenants.

A Balanced Approach:
I believe the intent of this ordinance can be accomplished without weakening its protections for tenants.
I would encourage Council to consider adding language that:

Requires written notice to the landlord or property manager, except where the owner already has actual knowledge or an immediate emergency makes notice impractical;
Provides the owner a reasonable opportunity to cure the condition;
Protects an owner who has promptly responded and is diligently working toward a cure, particularly where completion depends upon contractor availability, parts, permits, utilities, or other circumstances outside the owner’s reasonable control; 
Establishes objective and measurable standards wherever possible;
Distinguishes between conditions caused by the property owner and those caused by the tenant or occupants; and
Clearly defines the rights and responsibilities of both parties during any period in which a dwelling has actually been declared unfit for human occupancy.
 

None of those protections would prevent the City from taking action against a landlord who receives notice of a dangerous condition and simply refuses to address it.

In fact, I believe these clarifications would strengthen the ordinance. They would establish a clear line between landlords who are making a good-faith effort to provide safe housing and those who are knowingly allowing tenants to live in dangerous conditions.

The goal should be to give tenants a meaningful remedy against bad landlords without creating a tool that can be weaponized against good ones.

Al Sartorelli
Property Manager/Real Estate Broker