Tenant Remedies Landlord Lease Obligations & Tenant Rights for Breach

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  1. It is not uncommon for tenants to be unsatisfied with the condition of the homes or apartments that they rent. This article will provide information and advice to tenants on how to handle lease disputes with a landlord.

    It's rather common for a tenant to have disagreement with a landlords about a condition that exists on rental property. This can include things like stairs that need repair, unsafe conditions in a hallway or common area, no heat or hot water, air drafts or leaks in a window that make an apartment cold. In many cases the landlord will fix simple problems and there is no issue. But what happens if the landlord doesn't fix the problem to your reasonable satisfaction?

    First Step to Remedies: Look at Your Lease

    The first remedy a tenant has is to look at the lease that was signed with the landlord. The lease spells out the terms and conditions of your tenancy and who is responsible to fix what, including repairs and maintenance. If it doesn't adress the matter specifically, you may need to consult with the landlord-tenant laws in your area which might state who is responsible for what issue. If you need, consult with a landlord-tenant attorney or put up a post in an online law forum, where other people might be able to provide you with the law, having been in the same situation.

    Warranty of Habitability: Obligations of the Landlord

    In virtually all states, residential property that is rented to a tenant comes with a warranty of habitability, an obligation and promise of the landlord to keep the premises in a safe, sanitary, and habitable condition. In general, this means that the landlord is required to do all of the following:
    • Keep the home structurally safe and sound, repair holes in the roof, weakened boards in the floor
    • Ensure that adequate heat, hot water and power (electric and gas) are provided (payment for these utilities is a different matter)
    • Ensure that the premises is reasonably free from rodents, insects and household pests

    Remedies for Breach of Covenants and Warranty of Habitability

    At times a landlord will take a long period of time to make a repair or even refuse one, perhaps claiming that the problem isn't as bad as you say it is. For this reason, it is a good idea to document the times you encounter a problem such as taking pictures when application and writing down dates you've had the problem and when you've communicated with the landlord for repair requests. If the landlord does not make repairs to the point where you believe the premises is not habitable or livable, you may have legal remedies which will vary according to your state and county. In general, the following will usually apply:
    • Abatement (reduction) of rent, an amount that approximates the market value of the problem (e.g. a lack of heat for 14 days would result in a 10% rent abatement)
    • A refusal to pay rent until a serious problem is fixed
    • Providing notice to the landlord of the problem with a statement that the lease will terminate if the problem isn't fixed within a specified period of time, e.g. two weeks notice if serious mold is not removed, you will complete a move out and the least is terminated
    If a tenant decides to abate or reduce the rent, the amount should be the difference in value of the premises with the problem fixed and without the problem fixed. It is not an opportunity to simply not pay rent for an entire month or take an unreasonable sum of money. A tenant should ask themselves the following: "How much would the apartment rent for if the apartment had no heat for ten days versus the same apartment which would have heat for the entire month?"

    In the case of any rent abatement or refusal to pay rent, a tenant should always provide written notice to the landlord, usually return receipt requested, and carefully document the issue. In the event that a tenant decides to pay for repairs, the tenant should first send notice to the landlord and give the landlord the opportunity to fix the problem. For minor repairs, calling the super and/or landlord is also highly recommended. Most states do have laws that allow you to pay for the cost of minor repairs (such as leaky faucets) and deduct the amount from your rent ("repair and deduct.") Tenants should be aware that there are landlord-tenant laws that may place limits on this remedy:
    • Deductions are only allowed up to a certain dollar amount, e.g. $500 or one month's rent
    • The rent and deduct remedy can only be used for a limited number of times per year, usually twice
    If the conditions are so poor that they would warrant a tenant leaving (for example, an infestation of mice or vermin), a case of "constructive eviction" could be made. A tenant claims that the landlord evicted the tenant by failing to make sure that the conditions were reasonably safe for a person to live in the premises. In such case, a landlord might even be required to pay the tenant damages for constructive eviction and, in most states, the tenant may withhold rent and is not required to pay the full amount of rent due. As with all tenant remedies, providing notice and proof of notice is the best way for a tenant to make sure they have preserved their rights under a lease agreement.

    Right of Exclusive Use and Enjoyment of the Premises

    In exchange for your payment of rent to a landlord, you have the exclusive right to use and enjoy the premises you paid for without interference by anyone else, including the landlord. This is also known as the "covenant of quiet enjoyment." Except as specified in the lease, the landlord is not allowed to enter your apartment without your permission. Most leases and landlord-tenant laws provide the right for a landlord to enter the premises to make necessary repairs, usually with advance notice. Emergency situations, such as a fire, obviously provide the landlord the right to enter the premises.

    The right to quiet enjoyment is similar to the warranty of habitability. In both instances, a violation would make it difficult for you to live and enjoy the premises that you are paying money to rent. Examples of a landlord violating your right to quiet enjoyment include:
    • Renting your home to another person, without your authorization, during the time you are away and not using the premises
    • Allowing neighbors that are tenants of the landlord to create a nuisance, such as the landlord not doing anything about a tenant's loud music that plays every night
    • appearing at your door without prior notice to regularly do an inspection of the premises for damage
    The remedy for a breach of your quiet enjoyment varies upon the state in which you live. In some jurisdictions you can reduce the amount of rent until the landlord fixes the problem. In other states, you must file a lawsuit and demand money damages. You may wish to consult with a landlord-tenant attorney or create a post in an online law forum to determine what the law is in your state.
    Landlord Tenant Law:
    Leases - Covenants

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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