On November 30, 2023, it was reported that mid heights District 7 Albuquerque City Councilor Tammy Fiebelkorn introduced and was sponsoring two city ordinances that targeted the city’s apartment industry. One ordinance was entitled the “Residential Tenant Protection Ordinance” and targeted what Fiebelkorn deemed “deceptive” practices and “unreasonable” fees charged by residential rental proper owners and landlords. The second was the “Residential Rental Permit Ordinance” that would mandate a permitting system to operate residential rental properties.
At the time of introduction, Fiebelkorn said she had numerous renters who contacted her and complained that they ended up paying a lot more for the apartments they rented than they expected because of “hidden fees”. The bill would require landlords to post a list of application fees, minimum income and credit score requirements, plus background check results that could disqualify applicants. Fiebelkorn said this at the time:
“Most of the landlords in our city are fair, transparent, very clear with what folks are going to get. It’s the few that are making it really hard. … What we’re trying to do is make it real clear and transparent for people who are like looking for a rental unit.”
While Fiebelkorn said she believes most landlords are not overcharging tenants, she said her proposals will keep some bad actors at bay and she said this:
“I think that there is always a role for regulation so that we can protect those that are most vulnerable in our community.”
On March 6, the Albuquerque City Council voted 4 Yes and 5 No to kill Fiebelkorn’s “Residential Protection Ordinance” as it had been amended since introduction in November of 2022. Voting YES with Fiebelkorn in favor of the bill were Democrats City Councilor Pat Davis, Isaac Benton and Klarissa Peña. The 5 who voted NO to kill the bill were Republicans Dan Lewis, Trudy Jones, Renee Grout and Brook Bassan joined by Democrat Louis Sanchez.
WHAT THE BILL MANDATED
Fiebelkorn’s amended bill centered on the rental application process itself. The bill would have required the following:
Rental property owners and landlords would be required to make upfront disclosures to potential applicants.
Rental property owners and landlords would have to list any parking, amenity, pet or other fees, as well as any financial penalties tenants might face for late payments or other lease violations.
Rental property owners and landlords would also have to outline certain terms of their tenant-screening process so that would-be applicants knew ahead of time if they must have a specific credit score or income to qualify.
All application fees would be limited to $150 and require landlords refund it in cases where they rented the unit to someone else before processing others’ applications or when they denied an applicant without providing a reason.
Rental property owners and landlords would have been prohibited from mandating that tenants have insurance for their personal property, though they could have still required that renters have insurance to cover damage to the rental unit.
PROS AND CONS VOICED
Before the vote, city councilors heard from multiple community members in favor of the legislation and local property owners who opposed it. Many argued against the legislation with one claiming it conflicts with the State’s Uniform Owner Resident Relations Act and would only confuse owners and residents.
Supporters described the bill as “common sense” protections for tenants. They argued the regulations would ease the burden on lower-income renters who currently struggle to pay multiple application fees and who need to know and plan for about all the fees they will have to pay while in a rental agreement.
Rental industry representatives who spoke during the city council meeting called the bill “meddlesome” and “cumbersome” and “unnecessary”. They argued passage would likely result in them having to raise rents to account for the new regulations.
Before the final vote, Democrat City Councilor Louie Sanchez and Republican Trudy Jones urged the council to postpone a decision to allow further work and changes to make the bill more acceptable but Fiebelcorn rejected that idea. Fiebelkorn said she worked on the bill for months and invited all constituencies to participate and that she made significant changes to her original proposal to address various concerns. She said she was not sure what else could have done.
Sanchez and Jones ultimately joined Republicans Brook Bassan, Renee Grout and Dan Lewis in voting down the proposal.
Democrat Councilor Louie Sanchez had this to say:
“Any time we force any entity to do something, whether it’s a public or private endeavor … the next thing that happens is the person in control raises the fees, raises the rent.”
Councillor Bassan had this to say:
“I don’t think that we should infringe upon property owners’ rights as property owners to do what they will with their property”.
After the vote Fiebelkorn defiantly said this:
“It’s a shame we can’t protect the citizens of Albuquerque”.
MAYOR TIM KELLER VOICES DISAPPOINTMENT
Mayor Tim Keller, in a statement, voiced his disappointment over the ordinance’s failure:
“Our city is in a housing crisis that is putting pressure our most vulnerable. Now is the time for additional resources to protect tenants and increase transparency in the rental process, and we are disappointed this ordinance did not pass. The proposed changes were conservative safeguards, needed especially now as so many people are struggling to find affordable places to live.”
Links to quoted news sources are here:
MAYOR KELLER’S “HOUSING FORWARD ABQ” PLAN
It was on November 10, 2022 that Mayor Tim Keller announced his “Housing Forward ABQ” plan to add 5,000 housing units to the existing housing supply by 2025. Keller called his plan “transformative” and it includes updates to Albuquerque’s Integrated Development Ordinance (IDO). The updates to the IDO Keller is pushing is to allow construction of “casitas” or “two family” attached additions on all existing homes on 68% of all the residential lots in the city, allow 2 Safe Out Door spaces for homeless tent encampments in each city council district and allow “motel conversions” where the city is buying existing motels and converting them into low income housing rentals.
Mayor Keller has advocated and has fully supported the amendment to the IDO that allows for the land use known as “Safe Outdoor Spaces” to deal with the homeless crisis. “Safe Outdoor Spaces” are city sanctioned homeless encampments located in open space areas that will allow upwards of 50 homeless people to camp, require hand washing stations, toilets and showers, require a management plan, 6-foot fencing and provide for social services. Under an adopted amendment to the IDO, two Safe Outdoor Spaces are now allowed in all 9 city council districts and includes non-residential and mixed-use zones
Mayor Keller wants to amend the Integrated Development Ordinance to allow “casitas” or “two family” attached additions on all existing homes on 68% of all the residential lots in the city. The proposed legislation will dramatically increase options in “R-1” residential zones. “R-1”zoning is single family home lot zoning. Upwards of 68% of all residential property zoned in the city is zoned R-1. The proposed legislation will allow detached “casitas” or “two family” residence or duplexes up to 750 feet on all existing residential lots in the city. City officials have reported that there are 120,000 existing single residential lots in the city and that allowing casitas and two family residences could double to 240,000 residential construction increasing housing density and rental units. If casitas and two family residences are in fact allowed and used as rentals, Fiebelkorn’s ordinance would have applied.
COMMENTARY AND ANALYSIS
Mayor Keller’s disappointment that Residential Tenant Protection Ordinance was not enacted should not come as any surprise to anyone, especially home owners given the fact that Keller wants Safe Outdoor Spaces for the homeless in all City Council Districts, and wants to allow the construction of Casita’s and second dwellings in all areas of the city by amending the Integrated Deployment Ordinance, with all 3 having adverse and very negative impacts on residential areas.
The rejection of Fiebelkorn’s “Residential Tenant Protection Ordinance” was a good thing and an acknowledgement and respect for property rights and ownership as well as existing laws that protect both tenant and property owner rights to contract. The title of the ordinance “Residential Tenant Protection Ordinance” was nothing more than pure politcal posturing and spin by City Councilor Tammy Fiebelkorn. In a real sense, Fiebelkorn’s ordinance amounted to nothing more than “class warfare” pitting landowners against their tenants.
Fiebelkorn proclaimed her new ordinances were a “logical progression” of the discussion on rent control. The only logical progression is the fact that Fiebelkorn is a self-proclaimed activist and who is considered the extremist on the city council who became upset with the City Council rejecting her politcal agenda to ask the New Mexico Legislature to repeal the state law that prevents cities throughout the state from implementing rent control. The 2023 legislature in fact rejected rent control legislation.
The ordinance reflects Fiebelkorn’s resentment or downright hostility towards property owners and the apartment industry that resisted rent control. Fiebelkorn herself said this:
“Most of the landlords in our city are fair, transparent, very clear with what folks are going to get. It’s the few that are making it really hard.”
With these comments Fiebelkorn was saying she wanted to make the entire apartment rental industry miserable with city fees and bureaucratic mandates because “It’s the few that are making it really hard.” She originally proclaimed her Residential Tenant Protection Ordinance is a relatively painless way to help Albuquerque residents living on the margins to deal with soaring rental housing costs. The truth is, there is absolutely nothing “painless” about the ordinance when it comes to real property owners and how it interferes with their property rights and their right to contract.
CITY COUNCIL USUPRING STATE STATUTES
The way the ordinance is written as amended, it is a blatant attempt to usurp and contravene provisions of the state Owner – Resident Relations Act. The Act mandates written ‘‘rental agreements’’ or leases and provides that all agreements between an owner and resident and all rules and regulations required under the act must be embodied in the terms and conditions of the written lease concerning the use and occupancy of a dwelling unit or premises. (47-8-3, P, Definitions.)
The written lease agreement must delineate all the terms and conditions and parties performance requirements under the contract. Consequently, under the act, property owners are already required to make full disclosure of fees charged to be enforceable. Mandatory fees for nonrefundable or refundable applications fees, covered parking fees, fees for common area use such as pools and laundry room use, pest control and grounds maintenance are all terms and fees that must be included in residential rent agreements to comply with the Owner-Resident Relations Act.
The state law mandates written lease agreements that are enforceable contracts in a court of law. The act allows the parties to negotiate contract terms of any rental lease, including payment of fees of any kind. Tenants have the right to object to the fees as being unreasonable and landlords and owners who retaliate by failing to rent because of refusal to pay fees expose themselves to the Unfair Trade Practice violations and accusations that can result in triple damages under the Unfair Trade Practices Act and payment of attorney’s fees and costs.
Under the state law, no rental agreement may provide that the resident or owner agrees to waive or to forego rights or remedies under the state law. (47-8-16 Waiver of rights prohibited.) If an owner deliberately uses a rental agreement containing provisions known to be prohibited by law, the resident may recover damages sustained resulting from application of the illegal provision and reasonable attorney’s fees. (47-8-17 Unlawful agreement provision.)
The remedies provided in the Uniform Owner-Resident Relations Act are administered by the courts to allow and aggrieved party to recover damages as provided in the Act. It is the district, magistrate courts or metro courts that have jurisdiction to enforce the lease over any person or with respect to any conduct or claim prohibited under the Act. (47-8-10 Judicial jurisdiction.)
METRO COURT LANDLORD-TENANT SETTLEMENT PROGRAM
The Bernalillo County Metro Court has a Landlord-Tenant Settlement Program that deals exclusively with landlord tenant disputes. If the court, as a matter of law, finds that any provision of a rental agreement was inequitable when made, the court may limit the application of such inequitable provisions to avoid an inequitable result. (47-8-12 Inequitable agreement provision).
The mediation program is specifically for people involved in landlord-tenant disputes. The Landlord-Tenant Settlement Program gives landlords and tenants the opportunity to work out business agreements beneficial to both sides. The service is free, and parties in a case work with a volunteer settlement facilitator specially trained in housing matters. Many of the facilitators are retired judges and experienced attorneys who will provide services pro bono.
The Metro Court’s general Mediation program has been serving the community for 34 years and has evolved into the largest, ongoing court mediation program in the State of New Mexico. Mediation Staff, along with professionally trained mediators, help people resolve more than 600 cases per year. The program recruits and maintains a pool of approximately 75 professionally trained mediators who provide well over 1,000 hours of volunteer time to the court each year.
It is the New Mexico Attorney General that has the primary responsibility and authority to enforce the New Mexico Unfair Trade Practices Act, 57-12-1 to 57-12-24, which makes unfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce unlawful. The Unfair Trade Practices Act is New Mexico consumer protection act and it provides for private remedies.
The Attorney General would also have the authority to ensure that the Owner – Resident Relations Act is being followed. Consequently, if the City Council or for that matter the tenants do indeed have legitimate complaints that there are unscrupulous landlords failing to disclose abusive fees, the Attorney General needs to step in and enforce the state’s consumer protection laws against them. The Mayor or for that matter, the City Council can ask the Attorney General to step in and initiate action against unscrupulous landlords.
Simply put, Fiebelkorn wants rent control in the city and she refused to take no for an answer. If the New Mexico legislature will not allow rent control, Fiebelkorn wanted to try and accomplish it indirectly through city ordinance by eliminating any and all fees paid by a tenant, regardless of legitimacy or need.
The “Residential Tenant Protection Ordinance” was defective on its face in that there was no substantive enforcement provisions, no penalty provisions and no funding for enforcement. The “Residential Rental Permit Ordinance” was nothing more than retaliating against an entire industry that is opposed to rent control. The new ordinances amounted to nothing more than overreaching by the city council while ignoring existing state laws and programs that provide for specific remedies and penalties dealing with landlords and tenants.