CITY of ALBUQUERQUE
TWENTY FIFTH COUNCIL
COUNCIL BILL NO. C/S O-22-60 ENACTMENT NO. ________________________
SPONSORED BY: Tammy Fiebelkorn
ORDINANCE
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C/S Adopting A New Article In Chapter 11 Of The Revised Ordinances Of Albuquerque 1994 To Be Known As The “Residential Tenant Protection Ordinance” (Fiebelkorn)
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WHREAS, some tenants are charged various fees for applying for a housing unit and are charged various fees during the occupation of the unit, including but not limited to application fees, re-application fees, administration fees, renter insurance fees, lease processing fees, pet fees (both upfront and monthly), time off market fees, parking fees, utility fees, background check fees, month to month fees and convenience fees.
WHEREAS, when applying for new housing in the rental market, tenants and potential tenants are often cash-strapped by the need to pay multiple application fees and deposits in order to secure housing; and
WHEREAS, having to pay such fees makes potential low-income tenants more vulnerable to homelessness because of the requirement to pay such fees even before being approved to rent a unit or before moving in; and
WHEREAS, the practice of charging non-refundable fees disproportionately burdens recipients of housing vouchers because vouchers have limited capacity to cover fees, causing low-income tenants to be potentially unable to obtain housing or be at a comparative disadvantage to non-voucher holders; and
WHEREAS, the Council finds that, to protect the public health, safety, and general welfare of Albuquerque, it is in the public interest to address local issues of fair and balanced practices in the provision of rental housing in the City; and
WHEREAS, the Council seeks to enact a new Ordinance providing tenants with a fair and balanced fee structure;
BE IT ORDAINED BY THE COUNCIL, THE GOVERNING BODY OF THE CITY OF ALBUQUERQUE:
Section 1. A new Article 14 in Chapter 11 of the Revised Ordinances of Albuquerque 1994 is hereby adopted as follows:
“[§ 11-14-1 SHORT TITLE.
This Ordinance shall be known and cited as the “Residential Tenant Protection Ordinance.”
§ 11-14-2. INTENT AND PURPOSE.
The purpose of this Article is to protect the public health, safety, and general welfare of Albuquerque and ensure fair and balanced practices in the provision of rental housing in the City, by enacting a new Ordinance protecting tenants and applicants for a residential rental unit from excessive and unreasonable fees.
§ 11-14-3. DEFINITIONS.
For purposes of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
A. APPLICATION DEPOSIT. Any deposit that an applicant must pay to a landlord to hold or reserve a rental unit for the applicant before entering into a lease.
B. APPLICATION FEE. Any sum, including administrative and/or processing fees, that a landlord requires an applicant to pay prior to entering into a lease agreement to cover the costs of tenant screenings such as application processing, credit checks, and/or background checks. This does not include tenancy fees, tenancy fines, or deposits.
C. DEPOSIT or DAMAGE DEPOSIT. An amount of currency or instrument delivered by a resident or potential resident to a landlord of a rental unit as a pledge to abide by terms and conditions of a rental agreement. A deposit shall be refundable pursuant to state law.
D. LANDLORD. A property owner, broker, agent, property manager, or property management company that offers one or more residential units for rent.
E. RENT. Payment in currency or in-kind under terms and conditions of the rental agreement for use of a dwelling unit or premises, to be made to the landlord by the resident, but does not include deposits, fees, or fines.
F. TENANCY FEE. Any sum that a landlord requires a tenant to pay during the tenancy, pursuant to the lease, that does not include a deposit, rent, or tenancy fines. Tenancy fees include, but are not limited to pet fees, convenience fees, parking fees, cleaning fees, storage fees, landscaping fees, and amenity fees.
G. TENANCY FINE. Charges levied by a landlord for a tenant’s violation of pre-disclosed rules or regulations imposed on the rental property by the landlord as stated in the lease agreement, executed addendums, or in a separate document, including fines for late payment of rent.
§ 11-14-4. EARLY DISCLOSURE OF TENANCY REQUIREMENTS
A landlord must make the following written disclosures to potential applicants for a unit before the applicant applies to rent a unit, either in the advertisement for the unit or any other written communication, including electronic, generated by the landlord or the landlord’s agent. If a landlord utilizes an online service to advertise a unit and/or accept applications, the landlord must include this early disclosure on the website or advertisement. In the event that a potential tenant applies for a unit using a website or online service that publishes information about a unit without the landlord’s involvement, the landlord must provide the early disclosure to the potential tenant as soon as the landlord is contacted by the potential tenant or the service provider. Early disclosure of tenancy requirements must include:
A. A list of all application fees charged by the landlord, all tenancy fees provided for in the lease agreement, and any tenancy fines. A tenant shall not be subject to application fees, tenancy fees, or tenancy fines not included in the written disclosure required by this Section; and
B. Information that could appear on a background check that would disqualify an applicant for approval, if any; and
C. The minimum credit score, including the landlord’s preferred credit agency, required for approval, if any; and
D. Minimum income requirements, if any, subject to the provisions of the City of Albuquerque Human Rights Ordinance, ROA 1994, § 11-3-1, et seq. which provides that if an applicant receives a housing voucher, only the portion of rent that the tenant is personally responsible for paying may be used to calculate a minimum income requirement; and
E. The landlord’s accepted methods of paying rent and any associated third-party fees, if any; and
F. Renter’s insurance requirements, if any; and
G. Any application deposits an applicant is required to pay to hold a unit. Any application deposit shall become or contribute to the damage deposit upon the tenant entering into a lease. The applicant will have three business days to cancel their application and receive a full refund of the application deposit.
H. Nothing in this section requires a landlord to impose a minimum credit score, background check, or income requirements or prevents a landlord from making exceptions from any minimum requirements disclosed.
§ 11-14-5. FEES AND FINES
A. FEES. Application fees and tenancy fees charged by landlords to tenants must be reasonable.
1. An application fee is reasonable when the total charged is no greater than $150. Application fees shall be held by the landlord until the application is processed or until any tenant’s application for the unit is approved, whichever occurs first. If an application is not processed and the unit is rented to another tenant, the application fee must be refunded to the applicant within 15 days. If an application is processed but the tenant is not selected for the unit, that application fee shall be transferable to any of the landlord’s other available properties. In the event that an landlord rejects an Application that has been processed without providing a reason in writing, or based on a tenancy requirement not disclosed at the time the application was made, the landlord shall refund the application fee collected.
2. Fees shall be disclosed clearly and in writing to a tenant prior to entering into a lease agreement.
3. An landlord may not charge any fees that were not disclosed as required by Section 11-14-4, other than those specifically permitted by the New Mexico Owner-Resident Relations Act.
B. FINES. Any tenancy fines charged by landlords to tenants must be reasonable.
1. A tenancy fine for late payments is reasonable when it does not exceed the amount described in the New Mexico Owner-Resident Relations Act.
2. A tenancy fine for a returned check is reasonable when it does not exceed $50.00.
C. INVOICES. At the time any fee or fine is charged, the landlord must provide to the tenant the invoice or other documentation evidencing the cost for which the fee or fine was imposed.
§ 11-14-6. PAYMENT OF RENT
A. If a landlord uses a designated online payment portal or a similar application to accept rent payments, the landlord shall not charge tenants a fee for use of the portal. If a third party may charge the tenant a fee for paying rent using the designated portal, the landlord must disclose the fee in the lease agreement and in the Early Disclosure of Tenancy Requirements required by Section 11-14-4 above.
B. A landlord shall not refuse to accept payment of rent on the basis that the payment is made by money order, nor shall any residential lease prohibit a tenant from paying rent by money order. A landlord shall not charge tenants a fee for paying rent by money order.
C. If a landlord changes during a tenant’s existing lease, the landlord shall continue to accept the rent payment in the manner the tenant is accustomed to paying the rent until such time as the lease is to be renewed.
D. For any payment made by a resident or on a resident’s behalf, an landlord shall provide the resident a written or electronic receipt that shall include the amount of the payment, the date of the payment, and the resident’s name. This notice may be mailed or emailed after the payment is made and does not need to be provided immediately when the tenant pays.
§ 11-14-7. RENTER’S INSURANCE
A landlord may elect to require a tenant to hold an insurance policy that relates directly to the liability of the tenant as it applies to damage to the rental unit. A landlord shall not require an insurance policy to cover a tenant’s personal property as a condition of renting a residential unit. If a landlord requires liability renter’s insurance, as a condition of renting a unit, the landlord shall not require a tenant to obtain a specific insurance policy, or utilize a specific company, broker, or agent.]”
Section 2. SEVERABILITY CLAUSE.
If any section, paragraph, sentence, clause, word or phrase of this Ordinance is for any reason held to be invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this Ordinance. The Council hereby declares that it would have passed this Ordinance and each section, paragraph, sentence, clause, word or phrase thereof irrespective of any provision being declared unconstitutional or otherwise invalid.
Section 3. COMPILATION.
Section 1 of this Ordinance shall amend, be incorporated in, and made part of the Revised Ordinances of Albuquerque, New Mexico, 1994.
Section 4. EFFECTIVE DATE.
This Ordinance shall take effect five days after publication by title and general summary.