Assembly Bill No. 303-Assemblymen Goldwater, Buckley, Herrera, Giunchigliani, Ohrenschall, Perkins, Anderson, Bache and Evans
March 25, 1997
____________
Referred to Committee on Commerce
SUMMARY--Makes various changes concerning landlords and tenants. (BDR 10-820)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State or on Industrial Insurance: No.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to tenancies; prohibiting a landlord of a dwelling unit from terminating a tenancy except for cause; requiring such a landlord to pay interest on the security deposit of a tenant; limiting the amount that may be charged by such a landlord for cleaning; allowing a tenant of such a landlord to withhold rent under certain circumstances; prohibiting a landlord from providing for the nonadmittance of certain tenants; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1 Chapter 118A of NRS is hereby amended by adding thereto a new section to read as follows:
1. A landlord shall not terminate a tenancy except for cause. The landlord must notify a tenant in writing of the ground for termination of his tenancy before the tenancy may be terminated pursuant to this chapter.
2. The tenant may bring an action challenging the decision of the landlord to terminate the tenancy. If the court finds that the ground for termination of the tenancy:
(a) Violates any provision of NRS or federal law, the court shall issue an order:
(1) Requiring the landlord to pay all costs related to the proceeding; and
(2) Forbidding the termination of the tenancy on that ground.
(b) Does not violate any provision of NRS or federal law, the court shall issue an order providing that the tenancy may be terminated in accordance with the provisions of this chapter.
Sec. 2 NRS 118A.242 is hereby amended to read as follows:
118A.2421. The landlord may not demand or receive security, including the last month's rent, whose total amount or value exceeds [3] 2 months' periodic rent.
2. Upon termination of the tenancy by either party for any reason, the landlord may claim of the security only such amounts as are reasonably necessary to remedy any default of the tenant in the payment of rent, to repair damages to the premises caused by the tenant other than normal wear and to pay the reasonable costs of cleaning the premises [.] , which must not exceed the usual and customary costs of cleaning similar premises in the community in which the premises are located. The landlord shall provide the tenant with an itemized written accounting of the disposition of the security and return any remaining portion of the security to the tenant no later than 30 days after the termination of the tenancy by handing it to him personally at the place where the rent is paid, or by mailing it to him at his present address, or if that address is unknown, at the tenant's last known address. The refund must include interest at the rate of 5 percent per year, compounded annually, for the entire period during which the deposit was held by the landlord.
3. If the landlord fails or refuses to return the remainder of a security deposit within 30 days after the end of a tenancy, he is liable to the tenant for damages:
(a) In an amount equal to the entire deposit; and
(b) For a sum to be fixed by the court of not more than the amount of the entire deposit.
4. In determining the sum, if any, to be awarded under paragraph (b) of subsection 3, the court shall consider:
(a) Whether the landlord acted in good faith;
(b) The course of conduct between the landlord and the tenant; and
(c) The degree of harm to the tenant caused by the landlord's conduct.
5. Except for an agreement which provides for a nonrefundable charge for cleaning [,] the premises, which must be in a reasonable amount [,] that does not exceed the usual and customary costs of cleaning similar premises in the community in which the premises are located, no rental agreement may contain any provision characterizing any security under this section as nonrefundable or any provision waiving or modifying a tenant's rights under this section. Any such provision is void as contrary to public policy.
6. The claim of a tenant to security to which he is entitled under this chapter takes precedence over the claim of any creditor of the landlord.
Sec. 3 NRS 118A.290 is hereby amended to read as follows:
118A.290 1. The landlord shall at all times during the tenancy maintain the dwelling unit in a habitable condition. A dwelling unit is not habitable if it substantially lacks:
(a) Effective waterproofing and weather protection of roof and exterior walls, including windows and doors.
(b) Plumbing facilities which conformed to applicable law when installed and which are maintained in good working order.
(c) A water supply approved under applicable law, which is:
(1) Under the control of the tenant or landlord and is capable of producing hot and cold running water;
(2) Furnished to appropriate fixtures; and
(3) Connected to a sewage disposal system approved under applicable law and maintained in good working order to the extent that the system can be controlled by the landlord.
(d) Adequate heating facilities which conformed to applicable law when installed and are maintained in good working order.
(e) Electrical lighting, outlets, wiring and electrical equipment which conformed to applicable law when installed and are maintained in good working order.
(f) An adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the commencement of the tenancy. The landlord shall arrange for the removal of garbage and rubbish from the premises unless the parties by written agreement provide otherwise.
(g) Building, grounds, appurtenances and all other areas under the landlord's control at the time of the commencement of the tenancy in every part clean, sanitary and reasonably free from all accumulations of debris, filth, rubbish, garbage, rodents, insects and vermin.
(h) Floors, walls, ceilings, stairways and railings maintained in good repair.
(i) Ventilating, air conditioning and other facilities and appliances, including elevators, maintained in good repair if supplied or required to be supplied by the landlord.
2. The landlord and tenant may agree that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:
(a) The agreement of the parties is entered into in good faith; and
(b) The agreement does not diminish the obligations of the landlord to other tenants in the premises.
3. An agreement pursuant to subsection 2 is not entered into in good faith if the landlord has a duty pursuant to subsection 1 to perform the specified repairs, maintenance tasks or minor remodeling and the tenant enters into the agreement because the landlord or an agent of the landlord has failed or refused to render such performance.
Sec. 4 NRS 118A.320 is hereby amended to read as follows:
118A.3201. The landlord, from time to time, may adopt rules or regulations concerning the tenant's use and occupancy of the premises. Such a rule or regulation is enforceable against the tenant only if:
(a) Its purpose is to promote the convenience, safety or welfare of the landlord or tenants in the premises, preserve the landlord's property from abusive use or make a fair distribution of services and facilities held out for the tenants generally;
(b) It is reasonably related to the purpose for which it is adopted;
(c) It applies to all tenants in the premises in a fair manner;
(d) It is sufficiently explicit in its prohibition, direction or limitation of the tenant's conduct fairly to inform the tenant of what must or must not be done to comply;
(e) It is in good faith and not for the purpose of evading an obligation of the landlord; and
(f) The tenant has notice of the rule or regulation at the time he enters into the rental agreement or after the rule or regulation is adopted by the landlord.
2. A rule or regulation adopted after the tenant enters into the rental agreement which works a material modification of the bargain is enforceable only against a tenant [:
(a) Who] who expressly consents to it in writing . [; or
(b) Who has 30 days' advance written notice of it.]
Sec. 5 NRS 118A.380 is hereby amended to read as follows:
118A.3801. If the landlord is required by the rental agreement or this chapter to supply heat, air conditioning, running water, hot water, electric, gas, or other essential service and he willfully or negligently fails to do so, causing the premises to become unfit for habitation, the tenant shall give written notice to the landlord specifying the breach. If the landlord does not adequately remedy the breach, or use his best efforts to remedy the breach within 48 hours, except a Saturday, Sunday or legal holiday, after it is received by the landlord, the tenant may, in addition to any other remedy:
(a) Procure reasonable amounts of such essential services during the landlord's noncompliance and deduct their actual and reasonable cost from the rent;
(b) Recover actual damages, including damages based upon the lack of use of the premises or the diminution of the fair rental value of the dwelling unit; [or]
(c) Withhold rent during the landlord's noncompliance without incurring late fees, notice charges or any other charge or fee authorized by this chapter or the rental agreement; or
(d) Procure other housing which is comparable during the landlord's noncompliance, and the rent for the original premises fully abates during this period. The tenant may recover the actual and reasonable cost of that other housing which is in excess of the amount of rent which is abated.
2. If the tenant proceeds under this section, he may not proceed under NRS 118A.350 and 118A.360 as to that breach.
3. The rights of the tenant under this section do not arise until he has given written notice as required by subsection 1, except that the tenant may, without having given that notice, recover damages as authorized under paragraph (b) of subsection 1 if the landlord:
(a) Admits to the court that he had knowledge of the lack of such essential services; or
(b) Has received written notice of the uninhabitable condition caused by such a lack from a governmental agency authorized to inspect for violations of building, housing or health codes.
4. If such a condition was caused by the deliberate or negligent act or omission of the tenant, a member of his household or other person on the premises with his consent, the tenant has no rights under this section.
Sec. 6 NRS 118A.440 is hereby amended to read as follows:
118A.440 If the tenant's failure to perform basic obligations under this chapter can be remedied by repair, replacement of a damaged item or cleaning, and the tenant fails to use his best efforts to comply within 14 days after written notice by the landlord specifying the breach and requesting that the tenant remedy it within that period of time or more promptly if conditions require in case of emergency, the landlord may enter the dwelling unit and cause the work to be done in a workmanlike manner and submit the itemized bill for the actual and reasonable cost, or the fair and reasonable value of the work. The reasonable cost or value of the work must not exceed the usual and customary cost or value of similar work in the community in which the premises are located. The itemized bill [shall] must be paid as rent on the next date periodic rent is due, or if the rental agreement has terminated, may be submitted to the tenant for immediate payment or deducted from the security.
Sec. 7 NRS 118A.510 is hereby amended to read as follows:
118A.5101. Except as otherwise provided in subsection 3, the landlord may not, in retaliation, terminate a tenancy, refuse to renew a tenancy, increase rent or decrease essential services required by the rental agreement or this chapter, or bring or threaten to bring an action for possession if:
(a) The tenant has complained in good faith of a violation of a building, housing or health code applicable to the premises and affecting health or safety to a governmental agency charged with the responsibility for the enforcement of that code;
(b) The tenant has complained in good faith to the landlord or a law enforcement officer of a violation [under] of this chapter [;] or a violation of any other specific statute that imposes a criminal penalty;
(c) The tenant has organized or become a member of a tenant's union or similar organization;
(d) A citation has been issued resulting from a complaint described in paragraph (a);
(e) The tenant has instituted or defended against a judicial or administrative proceeding or arbitration in which he raised an issue of compliance with the requirements of this chapter respecting the habitability of dwelling units; or
(f) The tenant has failed or refused to give written consent to a regulation adopted by the landlord, after the tenant enters into the rental agreement, which requires the landlord to wait until the appropriate time has elapsed before it is enforceable against the tenant.
2. If the landlord violates subsection 1, the tenant is entitled to the remedies provided in NRS 118A.390 and has a defense in any retaliatory action by the landlord for possession.
3. A landlord who acts under the circumstances described in subsection 1 does not violate that subsection if:
(a) The violation of the applicable building, housing or health code of which the tenant complained was caused primarily by the lack of reasonable care by the tenant, a member of his household or other person on the premises with his consent;
(b) The tenancy is terminated with cause;
(c) A citation has been issued and compliance with the applicable building, housing or health code requires alteration, remodeling or demolition and cannot be accomplished unless the tenant's dwelling unit is vacant; or
(d) The increase in rent applies in a uniform manner to all tenants.
The maintenance of an action under this subsection does not prevent the tenant from seeking damages or injunctive relief for the landlord's failure to comply with the rental agreement or maintain the dwelling unit in a habitable condition as required by this chapter.
Sec. 8 NRS 40.253 is hereby amended to read as follows:
40.253 1. Except as otherwise provided in subsection 9, in addition to the remedy provided in NRS 40.2512 and in NRS 40.290 to 40.420, inclusive, when the tenant of any dwelling, apartment, mobile home, recreational vehicle or commercial premises with periodic rent reserved by the month or any shorter period, is in default in payment of the rent, the landlord or his agent, unless otherwise agreed in writing, may serve or have served a notice in writing, requiring in the alternative the payment of the rent or the surrender of the premises:
(a) At or before noon of the fifth full day following the day of service; or
(b) If the landlord chooses not to proceed in the manner set forth in paragraph (a) and the rent is reserved by a period of 1 week or less and the tenancy has not continued for more than 45 days, at or before noon of the fourth full day following the day of service. As used in this paragraph, "day of service" means the day the landlord or his agent personally delivers the notice to the tenant. If personal service was not so delivered, the "day of service" means the day the notice is delivered, after posting and mailing pursuant to subsection 2, to the sheriff or constable for service if the request for service is made before noon. If the request for service by the sheriff or constable is made after noon, the "day of service" shall be deemed to be the day next following the day that the request is made for service by the sheriff or constable.
2. A landlord or his agent who serves a notice to a tenant pursuant to paragraph (b) of subsection 1 shall attempt to deliver the notice in person in the manner set forth in paragraph (a) of subsection 1 of NRS 40.280. If the notice cannot be delivered in person, the landlord or his agent:
(a) Shall post a copy of the notice in a conspicuous place on the premises and mail the notice by overnight mail; and
(b) After the notice has been posted and mailed, may deliver the notice to the sheriff or constable for service in the manner set forth in subsection 1 of NRS 40.280. The sheriff or constable shall not accept the notice for service unless it is accompanied by written evidence, signed by the tenant when he took possession of the premises, that the landlord or his agent informed the tenant of the provisions of this section which set forth the lawful procedures for eviction from a short-term tenancy. Upon acceptance, the sheriff or constable shall serve the notice within 48 hours after the request for service was made by the landlord or his agent.
3. A notice served pursuant to subsection 1 or 2 must:
(a) Identify the court that has jurisdiction over the matter; and
(b) Advise the tenant of his right to contest the matter by filing, within the time specified in subsection 1 for the payment of the rent or surrender of the premises, an affidavit with the court that has jurisdiction over the matter stating that he has tendered payment or is not in default in the payment of the rent.
4. If the tenant :
(a) Is subject to the provisions of chapter 118A of NRS and the tenant files such an affidavit at or before the time stated in the notice, the landlord or his agent, after receipt of a file-stamped copy of the affidavit which was filed, shall not provide for the nonadmittance of the tenant to the premises by locking or otherwise.
(b) Is not subject to the provisions of chapter 118A of NRS, the landlord or his agent shall not provide for the nonadmittance of the tenant to the premises by locking or otherwise, regardless of whether the tenant files such an affidavit at or before the time stated in the notice.
5. Upon noncompliance with the notice:
(a) The landlord or his agent may apply by affidavit to the justice's court of the township in which the dwelling, apartment, mobile home or commercial premises are located or to the district court of the county in which the dwelling, apartment, mobile home or commercial premises are located, whichever has jurisdiction over the matter. The court may thereupon issue an order directing the sheriff or constable of the county to remove the tenant within 24 hours after receipt of the order. The affidavit provided for in this paragraph must contain:
(1) The date the tenancy commenced.
(2) The amount of periodic rent reserved.
(3) The amounts of any cleaning, security or rent deposits paid in advance, in excess of the first month's rent, by the tenant.
(4) The date the rental payments became delinquent.
(5) The length of time the tenant has remained in possession without paying rent.
(6) The amount of rent claimed due and delinquent.
(7) A statement that the written notice was served on the tenant in accordance with NRS 40.280.
(8) A copy of the written notice served on the tenant.
(9) A copy of the signed written rental agreement, if any.
(b) Except [where the tenant has timely filed the affidavit described in subsection 3 and a file-stamped copy of it has been received by the landlord or his agent,] as otherwise provided in subsection 4, the landlord or his agent may, in a peaceable manner, provide for the nonadmittance of the tenant to the premises by locking or otherwise.
6. Upon the filing by the tenant of the affidavit permitted in subsection 3 and the filing by the landlord of the affidavit permitted by subsection 5, the justice's court or the district court shall hold a hearing [,] in all cases, regardless of the information contained in the affidavits, after service of notice of the hearing upon the parties, to determine the truthfulness and sufficiency of any affidavit or notice provided for in this section. If the court determines that there is no legal defense as to the alleged unlawful detainer and the tenant is guilty of an unlawful detainer, the court may issue a summary order for removal of the tenant or an order providing for the nonadmittance of the tenant pursuant to subsection 5. If the court determines that there is a legal defense as to the alleged unlawful detainer, the court shall refuse to grant either party any relief, and, except as otherwise provided in this subsection, shall require that any further proceedings be conducted pursuant to NRS 40.290 to 40.420, inclusive. The issuance of a summary order for removal of the tenant does not preclude an action by the tenant for any damages or other relief to which he may be entitled. If the alleged unlawful detainer was based upon subsection 5 of NRS 40.2514, the refusal by the court to grant relief does not preclude the landlord thereafter from pursuing an action for unlawful detainer in accordance with NRS 40.251.
7. The tenant may, upon payment of the appropriate fees relating to the filing and service of a motion, file a motion with the court, on a form provided by the clerk of the court, to dispute the amount of the costs, if any, claimed by the landlord pursuant to NRS 118A.460 for the inventory, moving and storage of personal property left on the premises. The motion must be filed within 20 days after the summary order for removal of the tenant or the abandonment of the premises by the tenant, or within 20 days after:
(a) The tenant has vacated or been removed from the premises; and
(b) A copy of those charges has been requested by or provided to the tenant,
whichever is later.
8. Upon the filing of a motion pursuant to subsection 7, the court shall schedule a hearing on the motion. The hearing must be held within 10 days after the filing of the motion. The court shall affix the date of the hearing to the motion and order a copy served upon the landlord by the sheriff, constable or other process server. At the hearing, the court may:
(a) Determine the costs, if any, claimed by the landlord pursuant to NRS 118A.460, and any accumulating daily costs; and
(b) Order the release of the tenant's property upon the payment of the charges determined to be due or if no charges are determined to be due.
9. This section does not apply to the tenant of a mobile home lot in a mobile home park or to the tenant of a recreational vehicle lot in an area of a mobile home park in this state other than an area designated as a recreational vehicle lot pursuant to the provisions of subsection 6 of NRS 40.215.