It’s the leaky apartment whose roof collapsed. The kitchen equipped with a refrigerator, stove and air conditioner, none of which work. The bugs. The drafty windows. The clogged pipes.
Some shortcomings with rental properties are blatant violations of health codes and state laws that regulate landlords. Other landlord shenanigans are protected by the law, as when a tenant signs a month-to-month lease and the rent inexplicably rises a month later. And three months later, it rises again. Legal? Yes. But should it be?
"Imagine if on your first day at a job you said, 'I want my first month's check. I want my last paycheck. I want a damage deposit in case I'm injured.' The employer would laugh at you. But that's exactly what many landlords want," says Tomás Rivera, executive director of Chainbreaker Collective. "We need policies that give some power back to renters."
Chainbreaker is known for its activism on transportation, and now the nonprofit is encouraging Santa Feans to rethink rental policies it considers "predatory."
"We've been organizing a series of meetings to discuss drafting a local renters' bill of rights," says Rivera. At a September house party, about 20 participants exchanged bad-landlord narratives. One common accusation was that landlords and property managers falsify reasons to "steal" deposits at certain motels and trailer parks occupied by those who speak limited English.
In January of this year, Rivera spoke at another gathering, where he stressed that "housing is a human right," and more than a dozen others recounted problems with bad plumbing, inefficient heating and unreturned deposits. One participant reported being evicted because she called authorities to investigate a bad irrigation system. She believed she had no choice but to leave, as she was on a month-to-month lease.
Rivera outlines the principles guiding a community-based petition that he hopes will lead to city law. They include: housing affordability, accessibility, quality, sustainability and permanence, and community control—a vision of a society in which residents have a say in housing costs and longevity. While community control might be too utopian, questions from the house-party groups centered on existing legal rights.
"We've heard stories from people who have lived in their homes for 20 years, but they're evicted for one missed payment, [and] from people being evicted for having kids, for being pregnant, for complaining about cockroaches or windows so loose you can fit your hand through the cracks," Rivera says. The groups unanimously wondered whether these eviction scenarios were legal.
New Mexicans with month-to-month leases can be evicted without cause. But federal law prohibits housing discrimination against children. Discrimination law is complex, however, and loopholes muddy it more. An apartment with major gaps and leaks violates state housing codes. But what does that mean in practice?
Rivera says one big problem for renters is that getting help sometimes requires hiring a lawyer and taking a risk.
"There may be legal protections already in place," he says. "But they're not being enforced."
Everyone knows someone with a bad-landlord story. No statistics can reliably attest to how often they're the biased gripes of oversensitive or troublesome tenants or legitimate cases of abusive property owners or managers. Yet, it's indisputable that in landlord-tenant relations, the renter is the party in the more vulnerable position with the most to lose.
The power imbalance is exacerbated by rising rents that have led to what has been called the "renters' crisis" on the heels of the housing bust. Some studies have concluded that an estimated 50 percent of American renters can be defined as "cost-burdened," which means they spend 30 percent or more of their monthly income on rent.
And the number of renters has been on the rise since 2005, their swelling numbers transforming several major American cities into renter-majorities.
Although rents have climbed since 2002, incomes during that period have decreased, thereby driving up demand for public housing. Nevertheless, 10,000 units of public housing are lost annually through demolitions or dispositions, according to the US Department of Housing and Urban Development, reflecting a gap between federal policy and the new reality. In 2009, the federal government spent $230 billion in programs for homeowners (mostly assisting higher-end homeowners) but only $60 billion in public housing and programs to ease burdens for renters, according to the Congressional Budget Office.
Those trends are mirrored in Santa Fe's own 2012 Housing Needs Assessment report, which predicted that as many as 3,000 low-income city residents would not be able to find affordable rental homes.
The biggest mismatch in market supply and demand, the report states, is for the city's very-low-income-renter households that make up one-third of the city's renter population. This group earns less than 30 percent of the city's area median income, meaning that any rent greater than about $500 per month, including utilities, is out of reach. Only 10 percent of the city's rental units have rents in this range.
A subsequent report called the 2014-15 Action Plan took a more optimistic tone, boasting the city had "met or exceeded" goals in affordable housing, largely because of one project. The Housing Trust transformed an old Cerrillos Road motel into apartments and built new units to total 60 affordable rentals for low-income earners and people transitioning out of homelessness.
Yet it's clear that does not fully address the need in Santa Fe. Sharron Welsh, who manages Stage Coach apartments and Village Sage affordable housing projects for the Housing Trust, witnessed the impact of the 2008 renters' crisis. The trust formerly prioritized helping low-income people purchase homes, but the tide turned that year, she says.
"Perhaps home ownership wasn't a panacea for low-income people anymore," she says. "We switched our emphasis."
In her 20 years at the Housing Trust, the nonprofit has built about 700 affordable units, Welsh says, making just "a dent" in demand.
But Rivera cites a study by the advocacy group Right to the City, whose conclusions were more dire than the local housing reports.
"What I found really scary was that about a third of Santa Feans who are already cost-burdened actually pay half their income toward housing," says Rivera.
While rents are much higher in New York and San Francisco, Rivera says, "Santa Fe rents are disproportionate to what they should be for a city this size. That we're even in the same league [as those larger cities] is absurd."
Fifty-two statutes detail New Mexico housing law—and each has plenty of subclauses. They're collectively known as the Uniform Owner-Resident Relations Act. Parsing conflicts usually involves interpreting several complicated provisions in concert.
Such was the case for a woman we'll call Christine—she didn't want her real name published. She rented a two-bedroom apartment near downtown in May 2014. Having relocated from Brooklyn to Santa Fe to expand her textile artist business, she felt fortunate to find a space with sufficient square footage to double as a home and studio. The rent was $1,325 a month, with a large deposit of a month's rent plus $1,000.
"Maybe I should have seen a red flag when the landlord put on the lease that I'd be responsible for his legal fees if we had a dispute," Christine admits.
Two days after moving in, a summer monsoon brought rains, and her studio space flooded. Christine didn't notice at first because the room was full of moving boxes, which were absorbing the water. By that evening her supplies were ruined. The landlord claimed no flooding had ever happened in the past. It happened again a week later.
By that time, Christine had discovered shoddy doors and windows. The back door wouldn't completely shut; the lock was broken. A window in the main house was sealed shut, leaving her no way to ventilate the space except for an open door (two conditions a reporter observed last summer).
Christine never saw dripping or identified the source of the leak. The landlord sent roofers two weeks later, and they taped plastic bags over the chimney top.
The next rain dislodged the bags. Water spread into the apartment again. Three months after moving in and signing a year's lease, Christine decided she had a lemon.
She sat down to send her landlord a certified letter making her case for opting out of the lease. That was when she noticed the landlord had not provided a physical address—only a post office box. "I kept leaving messages asking for a [physical] address. [The landlord] ignored me. "
Christine believed she shouldn't be legally obligated to find a replacement tenant, as the lease required, for such an inferior living space. She wondered if the law would support her or the landlord in her accusations of negligence. Would she really have to pay for her landlord's lawyer if legal action ensued? Christine had begun looking for a new apartment and believed the landlord should owe her for her moving expenses and her flood-damaged property. And, of course, her deposit money.
Christine was familiar with the hackneyed caveat emptor advice given to prospective tenants. She could have tried making arrangements to check the electricity, doors and windows before moving in. She could have refused to sign a lease as it was written. But prospective tenants often feel pressured when they're between apartments—between signing the lease as is and homelessness.
"I was freaking out. I didn't know what to do," she says. That's when Christine called Susan Turetsky.
Turetsky has been the voice on the other end of the New Mexico Landlord-Tenant Hotline for 19 years. She provides consultations to landlords and tenants from her one-room office. If the office were an apartment, it would be classified as an "efficiency." She's the hotline's sole employee.
"The Landlord-Tenant Hotline is a 501(c)3 nonprofit, and I'm an executive director who has nobody to direct," chuckles Turetsky, who has a teaching background and is a licensed mediator.
Other legal services in New Mexico, such as Law Access and New Mexico Legal Aid, offer free advice on the topic as well, but don't serve landlords, only tenants.
"They both end up telling clients to call me," sighs Turetsky, whose expertise on landlord-tenant law is generally acknowledged statewide. Sometimes, she says, lawyers and local judges come to her for help.
To Turetsky's chagrin, she's no longer the director of a free service. Three years ago, the hotline lost funding when the city cut it from the budget. Now Turetsky charges landlords $50 and tenants $30 for her help. "The most frequent question from landlords is what to do when a tenant isn't paying the rent, how to evict, how to dispose of items left behind. From tenants, 'I can't pay my rent, so what can I do?' Or, 'My landlord won't do anything about XYZ.' "
Turetsky averaged 60 calls a day when the service was free. Now she averages about 15. "I get a lot of hang-ups. It kills me when I know a person needs help. But I have to pay my bills."
She offers all visitors a standard caveat: "I am not a lawyer. I offer information, interpretations and opinions on the 52 statues."
But she draws on years of experience to provide a basic primer in landlord-tenant rights. (See page 15 for her tips on evictions, breaches-of-lease agreements and security deposits.) While Turetsky warns that she can't assure what a judge will decide, she provides paperwork, including which ordinances the parties should show a judge, if necessary. She also provides information about legally supported actions.
In Christine's case, Turetsky told her that her landlord's failure to provide a physical mailing address was grounds enough to terminate the lease. She also learned about her right to abate one-third of her daily rent.
After she located a business address (never a home mailing address) for her landlord, she mailed him notice that she would be moving out the following month, August. She included a notice of abatement. Her landlord responded by demanding she pay the full rent. Christine lived in the apartment the first two weeks of August, then moved out and mailed a check that abated a third of her rent for her last two weeks.
Shortly thereafter she received a letter from her ex-landlord's law firm stating the landlord's intent to retain her full deposit. Security deposits are always refundable, but Christine's $1,325 was prepaid rent. Prepaid rent isn't always refundable when the tenant leaves before the end date on the lease.
The letter didn't state whether or not the apartment remained vacant, but it asserted that Christine owed the remainder of a year's rent—$13,250—and might owe "expected attorney's fees." As for the water damage that Christine had documented in photographs, the letter stated, "You may also be liable for damage resulting from your apparent dumping of large amounts of water on the floor in your effort to make it appear as if there was some kind of leak in the house." Her security deposit, according to the letter, was consumed by the costs of cleaning ($410), house calls ($360) and a new screen door ($156).
Christine was flabbergasted by her ex-landlord's "bullying" and deposit theft. "This has been very stressful," she says. "I'm lucky I had the money to move out of there. I can see why someone who had a legal right to abate the rent might be hesitant to do it." Christine is considering further legal action.SFR contacted attorneys for her ex-landlord, but they did not respond. A trade organization of 700 residential landlords, the Apartment Association of New Mexico, was also encouraged to contribute insights on landlord-tenant issues. No property managers in the business of market-rate rentals agreed to be interviewed.
Tomás Rivera wants Chainbreaker to do more than commiserate with renters like Christine when their rights have been violated. He wants to improve their power position.
"We're not looking for…a silver bullet," he says. "But we're beginning a dialogue. We're asking the Santa Fe community: Do we believe an elderly woman should be evicted because she's two weeks late on rent or she complains that she's trapped with cockroaches? I believe Santa Fe is better than that."
Rivera envisions community action that would be supported by Santa Fe's substantial pool of stressed renters. He also believes Santa Feans will rally to address gentrification, which has compounded the renters' crisis since 2008.
High rents remap a city, he says, and Santa Fe's labor pool is moving to adapt to this. The lucky ones find housing in the Southside, but some move as far away as Española. The Airport Road corridor is the fastest-growing area of the city. It's also where 40 percent of Santa Fe's youth now live. Gentrification is driving displacement in Rivera's own neighborhood, Hopewell Mann.
The organization believes new laws could also help here.
Just-cause eviction and rent control are the measures most commonly associated with renters' rights movements. While tenants now can be evicted without cause, the just-cause principal would force landlords to show why a tenant should be removed. Valid causes include nonpayment of rent, but the burden of proof shifts to the landlord, who cannot evict at a whim.
Rent control laws, currently prohibited in New Mexico, have been enacted in a few major cities throughout the country, such as New York City, Washington DC, San Francisco, Los Angeles, Oakland and other cities in California. The rules allow rents to rise, but they usually only permit modest spikes that are linked to other economic indicators.
The justification for the measures has often been to preserve the longstanding culture of a place by keeping historically significant communities intact. Yet rent control laws are bitterly contentious and often full of loopholes. San Francisco enacted rent control in the late 1970s, yet today the city has the second-highest rents in the nation. Supporters of rent control say it succeeded in preserving neighborhoods and overall cultural diversity.
For her part, Turetsky believes the community needs to reconsider basic principles in housing. She recommends landlord licensing.
"When a tenant takes possession of a property, that property should be in good, safe working order. Building and electrical inspectors should be brought in to inspect the property at least every two years," she says. "These landlords are running a business. I believe they should be registered with a licensing department."
Turetsky has encouraged the idea over the years, but it hasn't generated great enthusiasm. Licensing is not unusual, however, and exists in many cities. Turetsky believes a licensing procedure that involves apartment inspections could "solve half the issues that make people call the hotline. Landlord licensing can be sponsored by the city or state. It prevents slumlording. You don't have a house in a neighborhood that's in good condition and another that's in disrepair. It's good for property values. It benefits landlords and tenants too."
In Santa Fe, public housing must undergo regular minimal housing code inspections. Otherwise, there is no landlord licensing. Certainly the idea could help resolve problems like Christine's before they occur. Turetsky believes in it, she explains, "because I've heard too many horror stories."
Basics of New Mexico landlord/tenant law
A landlord can end a month-to-month rental agreement (in other words, evict a tenant) with a 30-day notice. No reason is required.
A tenant served with a notice of nonpayment
“If he tries to do any of that, the tenant can turn around and sue the landlord for two times the monthly rent plus any losses,” warns Turetsky.
A breach of a lease agreement occurs if the landlord fails to keep up the legally defined obligations of an owner, such as maintaining heat, running water and appliances.
“Say you’ve got a leaky pipe under the kitchen sink,” says Turetsky. “The landlord says he’ll fix it when he gets around to it. That’s unacceptable.”
Tenants have the right to serve the landlord with a seven-day notice of termination or abatement explaining the breach. (If the landlord makes no attempt to remedy to breach within the seven days, the tenant has the right to terminate the rental agreement for noncompliance. And if the breach is remedied but it takes longer, the tenant has the right to withhold one-third of the daily rent from the day on the notice through the day the sink is fixed.)
Can the landlord respond by evicting the tenant? Turetsky says state law bans landlord retaliation. After a tenant has requested a repair, which falls under the obligations of the owner, the landlord can’t evict a tenant or raise the rent for six months.
While ants, roaches and silverfish aren’t small problems, infestations might not come under the legal obligations of the owner.
The closest mention to infestation in the code is the owner’s responsibility to keep the premises in a clean, safe condition. Yet Turetsky says the issue is tricky because each side in the argument typically blames the other side for bringing the bugs into the home.
Deposits are refundable with a few exceptions. The landlord may deduct any unpaid rent, damage, cleaning beyond normal wear and tear and unpaid utilities if that is in the rental agreement.
It is illegal to collect a security deposit in excess of one month’s rent for a month-to-month rental agreement. A larger deposit is permitted for units with a year’s lease or longer.
After a tenant leaves, a landlord has 30 days to settle with the tenant in writing by either sending the full security deposit or a list of deductions to the last known address.
If the landlord fails to do that, the law states “the owner shall forfeit the right to withhold any portion of the deposit” and may be liable for a civil penalty of $250 payable to the resident “if the resident believes that landlord has held his money in bad faith.”
Tenants have a responsibility to leave a dwelling place clean, yet Turetsky says that tenants need to beware of exorbitant deductions.
“I once had a tenant whose landlord tried to deduct hundreds of dollars for cleaning supplies to clean a stove, including charging for the Q-tips she used to clean the vents!”
New Mexico Landlord-Tenant Hotline 983-8447
Editor's note: An earlier version of this story said the New Mexico Legal Aid group does not have tenant-landlord specialists. Amy Popps, lead attorney of the organization, says it does offer assistance for tenants, but not landlords.
Santa Fe Reporter