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Habitability

Habitability means livability. If a tenant is filing an action for “breach of the implied warranty of habitability” (which is the whole formal name for this issue), they are saying that the actions of the landlord made the rental unit uninhabitable. This is the most common tenant defense I have ever seen raised.

When you see the issue of habitability written up in an article somewhere , the most likely wording will be something like “if your landlord has created bad conditions in your unit they may have made it uninhabitable.”

Landlords have the responsibility of maintaining a habitable unit, meaning one that can be lived in. Minimum habitable standards are controlled by the state statutes, local ordinances, and local building codes, so the actual ones in your case may not be the ones listed below.

Local ordinances, for example, will define the structural aspects of the rental unit, minimum size of bedrooms and number of occupants per bedroom, the ventilation and lighting in the rental unit, how sewer and trash are disposed of, minimum heating and cooling temperatures, fire protection and security.

The unit must be in substantial compliance with all these ordinances in order to be habitable. To see whether or not habitability issues exist with your rental unit, call the building code enforcement officials for your jurisdiction and ask them to perform an inspection of your unit. Before you do , make sure any items that you are responsible for are in working order. They will write up any problems that they find.. This is the government version of habitability. As long as the rental unit meets all the applicable standards, government is happy and will not take any action against landlords.

Tenants need to be aware that building code officials are enforcing the minimum building codes which are generally atrociously low. If it is possible to live in the rental unit, government will not cite the landlord.

You’ll have to check. But generally speaking, these are some of the issues relating to habitability. (Government version)

  • Working plumbing and heating
  • Hot and cold running water
  • Electricity for appliances and lights that work (no exposed wiring, etc.)
  • Roof, walls and windows that do not leak and are not broken
  • Clean common areas, free from trash and debris
  • Enough trash cans to keep trash from overflowing
  • Safe floor, stairs, and rail
  • Reasonably free of forseeable criminal threats
  • Eliminate bad environmental conditions such as asbestos, lead paint, (others)
  • Exterminate rodents and keep the place bug-free
  • Maintain minimum heating and cooling standards appropriate to the season

In addition to these standards, essentially imposed by government, there may be additional habitability standards imposed on the landlord by the lease they entered into with the tenant or by judicial decisions and case law that have not been reflected yet in the ordinances and statutes that the landlords have to live by. Unfortunately, those can’t be readily accessed except by attorneys who are preparing to litigate on your behalf. There is no place I can point to for you to easily uncover judicial decisions and case law. . However, you can look at your lease and see what the landlord obligations are to maintain a habitable structure that are contained in the lease. If the landlord originated the lease there probably will not be any additional requirements for them. However if you have a specialized lease for a specialized purpose that you entered into with the landlord there may be some additional requirements on them which you’ll discover by reading your lease.

What are your options if the unit is not habitable?

  • You can move out and sue the landlord in small claims court (make sure your amounts meet the threshold $ amounts, which are usually high enough that they should not represent a problem). You can represent yourself in small claims court but will need an attorney for the next higher level in most jurisdictions.
  • You can report your landlord to code enforcement. If code enforcement agrees, they will issue an order to the landlord to repair the premises. If the landlord does not repair the unit within code enforcement’s time limit, you can sue the landlord in small claims court. If successful the judge will give you a repair order which is  an order to the landlord to repair the unit
  • You can repair and deduct. This means that you hire a contractor and have them perform the repairs. You deduct the cost of the repairs from your rent. There are special rules on this in many jurisdictions. In some cases you have to have notified the landlord and, effectively, have gotten their agreement before proceeding with repairs (unless the repairs are emergency repairs.). Make sure you fully understand the ramifications of this choice before using it. In order to use this in some jurisdictions you must show:
    • A housing inspector or judge has certified that violations endanger safety
    • The landlord was given written notice, which you can prove they received
    • The landlord failed to cure the violations within 14 days of being notified (varies by jurisdiction)
    • Landlord had access to the apartment to make repairs
    • The conditions were not caused by you your family or guests
  • Withhold rent and put it into a savings account. Or pay the rent directly into a housing court. The reason you would deposit the rent into savings is so it is available when you ultimately have to pay the landlord. Once they do the repairs you will owe the money; if you have spent it instead of saved it you will not have the money to pay out which would lead to your eviction.
  • Break your lease and move. Often you can do this if the violations are uncorrected, the landlord refuses to make repairs, you have the inspector’s report as proof, and get documentation of the landlord refusal to repair. Oftentimes you can get your security deposit back successfully but you may have to go to court.
  • You can also organize with other tenants to bring pressure on the landlord. See the section in this book about how to form a tenants association or tenants union
  • Check your local ordinances for the definition of a nuisance. Nuisance is something that is detrimental to health morals or dangerous living in the unit. Examples are too many occupants for a unit, a unit not having enough ventilation, drug dealing in the premises
  • Check for state consumer protection agencies. Here is a link for the state consumer protection agencies that exist nationwide http://www.usa.gov/directory/stateconsumer/index.shtml

How You Cannot Use Habitability

As previously mentioned, code enforcement people enforce the minimum habitability standards that are embodied in the codes and ordinances. Most landlords are renting a structure that substantially exceeds those minimum habitability standards. So if a tenant brings a code enforcement official into the residence to look it over for potential problems oftentimes the code enforcement official will not find anything to cite. I have personally experienced this at least 15 or 20 times over the years. I begin an eviction action against a tenant for nonpayment of rent. In retaliation, the tenant calls in code enforcement people who fail to cite me for anything because the structure exceeds the minimum habitability standards.

Tenants believe that the rental unit should meet their personal standards for habitability rather than the government standards. Essentially, tenants are trying to substitute their taste for government regulations. On this issue, tenants lose every time. The standards that government is going to enforce are government standards, not the tenant’s idea of what habitability should be. As a result, if you want habitability standards employed you need to see what they are in your jurisdiction and make sure that your rental unit does not meet them in some way; otherwise you are going to lose the issue when you bring in the code officials.

HOWEVER, there are so many ways to bring in the issue of habitability properly that the owner and property manager cannot do anything about that losing on this one issue won’t bother you.

This webpage is adapted from a chapter in “How to Sue Your Landlord.” There are 19 pages of habitability issues that can be successfully raised that are lawsuit-worthy. Essentially, health and safety issues cause habitability issues which cause you to leave the unit. You might be constructively evicted by them or actually evicted by them. In any event, health and safety issues are the ones that cause you to have to leave. In the book, we show you how to document the issues in ways that the property managers and owners cannot do anything about. Health and safety issues are definitely lawsuit-worthy.

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