Routine Maintenance vs. Tenant Negligence: A Legal Guide for Renters in Ecuador

Navigating the legal landscape of a rental agreement in Ecuador, particularly as an expatriate, can be fraught with ambiguity. The division of responsibilities for property upkeep is a frequent source of contention, leading to the crucial question: Can a landlord legally charge for routine maintenance and repairs? As an Ecuadorian lawyer with extensive experience advising the expat community, I have seen how these disputes can sour relationships and create significant financial stress. This article will provide a definitive legal analysis, grounded in Ecuadorian law and practical realities, to clarify your rights and obligations as a tenant.

The Legal Foundation: The Civil Code and the Law of Tenancy

The landlord-tenant relationship in Ecuador is principally governed by the Ecuadorian Civil Code (Código Civil). While the Law of Tenancy (Ley de Inquilinato) still exists and governs specific procedural matters, its core contractual principles have been largely superseded by the broader and more authoritative framework of the Civil Code.

The fundamental premise is this: the landlord is obligated to deliver and maintain the property in a state of habitability, while the tenant is responsible for its proper use and for repairing damages caused by their own fault or negligence.

A Critical Distinction: Necessary Repairs vs. Tenant-Fault Repairs

The key to resolving most disputes lies in correctly categorizing the required work. The law distinguishes between repairs necessary to maintain the property's usability and those necessitated by the tenant's actions.

• Landlord's Responsibility - Necessary Repairs (Reparaciones Necesarias): These are repairs essential for the property to serve its intended purpose and are not caused by the tenant. The landlord bears the full cost. Examples include:

  • Repairing a leaking roof or foundational plumbing issues.
  • Fixing major electrical system failures (e.g., a faulty breaker box).
  • Addressing structural problems like cracked walls or subsiding floors.
  • Replacing a major appliance, such as the water heater (calefón) or refrigerator, that fails due to age or manufacturing defect.
  • Resolving persistent humidity or mold issues stemming from construction flaws, a common problem in Sierra cities like Cuenca.

• Tenant's Responsibility - Minor "Locative" Repairs & Negligence (Reparaciones Locativas & Culpa del Arrendatario): The tenant is responsible for minor upkeep and any damage resulting from their negligence or misuse.

  • Examples of Reparaciones Locativas (minor upkeep): Replacing burnt-out light bulbs, tightening loose cabinet handles, or cleaning clogged drains from normal use. These are generally seen as part of the tenant's duty to maintain the property's cleanliness and good order.
  • Examples of Negligence: Breaking a window, causing a severe plumbing blockage by flushing foreign objects, damaging walls while moving furniture, or allowing a pet to destroy doors or flooring.

The Landlord's Core Obligations: Artículo 1868 of the Civil Code

The landlord's duties are not discretionary; they are mandated by law. Article 1868 of the Ecuadorian Civil Code is unequivocal, stating the landlord is obligated:

1. To deliver the leased property to the tenant.
2. To maintain it in a state that serves the purpose for which it was leased.
3. To free the tenant from any disturbance or hindrance in the enjoyment of the leased property.

The second point is paramount. "To maintain it in a state that serves the purpose" means the landlord must fund all reparaciones necesarias. If a failing water pipe makes the kitchen unusable, the landlord must repair it at their own expense.

The Tenant's Core Obligations: Artículo 1902 of the Civil Code

Conversely, the tenant has a duty of care. Article 1902 of the Civil Code obligates the tenant to use the property "as a good parent would use it" (como un buen padre de familia), a legal term for acting with reasonable prudence and care. The tenant is responsible for reparaciones locativas—those minor repairs that are typically caused by the inhabitants' use of the property. However, the tenant is not responsible for these minor repairs if they are caused by fuerza mayor (an act of God), caso fortuito (an unforeseen accident), or poor construction quality.

So, Can a Landlord Charge for Routine Maintenance? The Definitive Answer

Based on the Civil Code, a landlord cannot charge a tenant for reparaciones necesarias—repairs required due to normal wear and tear, age, or structural defects. These costs are an inherent part of owning a rental property.

However, a landlord can and will charge a tenant for repairs necessitated by the tenant's negligence or failure to perform minor upkeep (reparaciones locativas) that leads to greater damage. This is where disputes arise, making clear documentation indispensable.

Common Pitfalls and Expert Recommendations

1. The Vague or Verbal Agreement: An unwritten lease is a recipe for disaster. Insist on a comprehensive written Contrato de Arrendamiento.

   • Hyper-Specific Detail 1: For maximum legal protection, your lease should be notarized (notarizado). This process, which costs approximately $20 - $40, provides the contract with a "certain date" (fecha cierta), making it a powerful piece of evidence in any potential dispute.

2. The Inadequate Move-In Inspection: Failing to document the property's initial condition is the most common mistake expats make.

   • Hyper-Specific Detail 2: Your move-in inspection must be more than a visual scan. Functionally test everything. Turn on the calefón and wait for hot water at every tap. Run a cycle on the washing machine. Flush every toilet. Light every burner on the stove. Film this process on your phone. This creates undeniable proof of the property's condition upon delivery, protecting your security deposit later.

3. Misunderstanding the Security Deposit (Garantía): Many tenants wrongly assume the security deposit can be used for the last month's rent.

   • Hyper-Specific Detail 3: Under Ecuadorian law, the garantía is exclusively for covering damages beyond normal wear and tear or unpaid utility bills. A landlord is legally obligated to return it (or the balance after documented deductions) typically within 30-60 days of the lease termination, depending on the contract terms. If a landlord unjustly withholds your deposit, your first step should not be a lawsuit, but a formal mediation request at a local Centro de Mediación authorized by the Consejo de la Judicatura. This is faster and far less expensive than litigation.

4. Ignoring the Lease Registration Requirement: Many landlords, and almost all expat tenants, are unaware of a key legal obligation.

   • Hyper-Specific Detail 4: The Ley de Inquilinato mandates that the landlord must register the lease agreement with the municipality where the property is located. In cities like Quito and Cuenca, this involves submitting a specific form (e.g., Formulario de Registro de Contratos de Arrendamiento). While enforcement varies, a landlord's failure to register the lease can significantly weaken their position in a formal dispute, giving a well-informed tenant considerable leverage.

Procedural Checklist for Repair Requests

1. Notify Immediately and in Writing: As soon as you notice an issue, notify your landlord via email or a platform like WhatsApp. This creates a time-stamped record. Clearly describe the problem and include photos or videos.
2. Reference the Law and Your Contract: In your notification, you can politely state, "As this appears to be a necessary repair to maintain habitability under Article 1868 of the Civil Code, I kindly request you arrange for its inspection and repair."
3. Allow a Reasonable Timeframe: A burst pipe requires an emergency response; a dripping faucet can wait a few days. Be reasonable.
4. Document Everything: Keep a log of all communications, save photos, and get copies of any invoices if a repair is completed.

⚠️ Legal Red Flags: When to Consult an Attorney Immediately

You must seek professional legal counsel if:

• Your landlord demands payment for a significant repair (e.g., a new water heater, major plumbing work) that is clearly not your fault.
• Your landlord is attempting to deduct costs for normal wear and tear (e.g., repainting the entire apartment after a two-year tenancy) from your security deposit.
• The property has a serious habitability issue (e.g., persistent mold, lack of water) that the landlord refuses to address.
• Your landlord threatens eviction for non-payment of disputed repair charges.
• You are considering withholding rent. Do not do this without legal guidance. Improperly withholding rent is a breach of contract and can lead to your eviction.

Conclusion: Knowledge is Your Best Defense

In Ecuador, the law provides clear protections for tenants against being unfairly charged for the landlord's cost of doing business. The landlord is responsible for maintaining the structural and functional integrity of the property. The tenant is responsible for living in it with care and covering the costs of their own negligence.

By securing a detailed, notarized lease, conducting a meticulous move-in inspection, and understanding the specific articles of the Civil Code that govern your tenancy, you transform yourself from a vulnerable renter into an informed and empowered resident.