Tenants have the right to safe, sanitary and livable housing. This means that landlords are responsible for making all necessary and essential repairs to their rental units.
But what can a tenant do if after giving sufficient notice and time, a landlord still doesn’t make necessary repairs?
While tenants are responsible for repairing any damage or uninhabitable condition they have caused themselves, states have laws that can assist tenants when landlords won’t make the repairs for which they are responsible.
Implied Warranty of Habitability
There is a legal doctrine called the “implied warranty of habitability” which applies to residential leases. This means that landlords are legally responsible for the maintenance of their rental unit and must repair damage to essential facilities in order to make it habitable.
Generally, the implied warranty applies to apartments, houses, or other types of residential dwellings, but not condominiums or commercial rental units.
The implied warranty of habitability is derived from local building codes, state statutes as well as case law that specify the minimum requirements for vital housing services such as heat, water, and plumbing.
While the conditions that violate the implied warranty of habitability vary depending upon the state and local laws, the implied warranty generally requires that landlords provide:
- Drinkable water
- Hot water
- Heat during cold weather
- Smoke Detector
- Functioning bathroom and toilet
- Overall sanitary premises
Legal Remedies Available to Tenants
The source of the implied warranty of habitability determines the legal duties of landlords as well as legal remedies available to tenants if their landlord violates the implied warranty by not making the necessary repairs within a reasonable time frame after receiving notice from a tenant.
Some of the common remedies available to tenants include:
- Reporting Code Violations
If the condition in need of repair is a violation of state or local housing or health codes, tenants may contact their local housing code enforcement agency or health department and request an inspection.
An inspector from the agency will conduct an inspection of the premises and determine if there are any code violations. If the inspector finds violations, the landlord will be given a notice of violation and a deadline, typically 30 to 60 days, to correct the condition.
A landlord that does not repair code violations after receiving notice from an agency may face fines and even imprisonment.
- Withholding Rent
If a landlord does not make necessary repairs within a reasonable time after a tenant provides notice, many state laws permit tenants to withhold rent until their landlord makes the repairs.
Most states have very specific requirements for rent withholding, such as requiring a tenant to deposit the withheld rent in a special escrow account, so tenants need to know the law in their state.
If a landlord does not keep the premises in a habitable condition, a tenant may repair any vital deficiencies and deduct the cost of the repairs from the rent.
State law will determine the legal requirements for the repair-and-deduct remedy, but the most common rules are as follows:
- The housing condition must be serious enough to affect the tenant’s health or well-being;
- The tenant must first give the landlord written notice of the conditions in need of repairs;
- The tenant must give the landlord a reasonable amount of time to make the repairs;
- The cost of the repairs must be reasonable;
- The tenant then should deduct the cost of the repairs from the next rent payment;
- The landlord must be provided with a copy of the receipt for the repairs.
The majority of states and some large cities permit the repair-and-deduct remedy. If state law does not provide this option, tenants should check their local housing ordinances to determine if their town or city has independently adopted it. Otherwise, the repair-and-deduct remedy is not available.
- Constructive Eviction
A landlord’s refusal to make essential repairs may lead a tenant to vacate the rental unit. This is called a constructive eviction. Constructive eviction means that a tenant may break the lease without penalties because the landlord is in violation of the implied warranty of habitability and has refused to make repairs, rendering the premises unsafe or unfit for occupancy.
If a tenant qualifies to use the remedy of constructive eviction, the tenant is entitled to the return of the security deposit and will not be responsible for the rent for the balance of the lease or the cost of re-renting the property.
As is the case with other legal remedies for non-repair of vital housing facilities, state law governs the rules and procedures for construction eviction.
- Rent Receivership
In some states, such as New Jersey, the law permits tenants to file a petition with the court requesting that a receiver be appointed to collect all of the tenants’ rent payments and to use the money to make essential repairs to the building.
A judge may grant a rent receivership petition where a landlord has a history of refusing to make repairs involving vital services such as heat, water, and electricity. In states that permit this remedy, it is only granted when repair-and-deduct, rent withholding, and other attempts to get a landlord to make repairs have failed.
- Filing a Lawsuit
In most states tenants can file a lawsuit in small claims court and request a court order requiring a landlord to pay for repairs. While hiring a lawyer is not necessary, tenants may want to contact a tenants organization or consult with a lawyer for information about how to file a Small Claims complaint.
There are some other less orthodox remedies tenants may utilize when attempting to get a negligent landlord to make essential repairs.
- Tenant Rent Strike
A tenant rent strike involves some or all tenants with the same landlord withholding rent, putting significant financial pressure on a landlord to make necessary repairs.
Working together, tenants can greatly improve their chances of getting housing and health code inspectors as well as a judges to put pressure on a slumlord to improve poor housing conditions.
- Contacting Landlord’s Insurance Company
Another method of motivating a landlord to make repairs is to complain to the landlord’s property insurance company about conditions that are a safety hazard.
Unfortunately, in most cases it will likely be difficult to ascertain the name of the landlord’s insurance company. However, in rent controlled jurisdictions the name of the insurance company should appear in bills the landlord submits in connection with a hardship increase application.
Since the remedies available to tenants whose landlords refuse to make repairs are state specific, both landlords and tenants should know the pertinent laws in their state.
The information on this website is intended as general legal information only and should not form the basis of legal advice of any kind. Individuals seeking specific legal advice should consult a lawyer.