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Fit for Habitation

A residential landlord is required to keep the premises in good repair and "fit for human habitation." This responsibility is mandated through several legal principles, and the lease itself most likely refers to certain standards of upkeep. If the premises are allowed to become unfit for people to live in, the tenant can terminate the lease agreement.

Implied Warranty of Habitability

Over the years, the law has evolved to create an implied duty for the landlord to keep the property in good condition. This duty is sometimes termed the "implied warranty of habitability," meaning that any person renting property guarantees, whether they say it or not, that it is fit for humans to live in by being safe and sanitary.

To be fit for habitation, rental property must be:

  • structurally stable
  • free from serious disrepair
  • free from lead, mold, dangerous levels of air pollution (e.g., from gas or carbon monoxide) or other toxic and harmful pollutants that could damage the health of the tenant

The tenant must notify the landlord of the defects or conditions that are making the property unsafe or unhealthy. He cannot violate an implied warranty of habitability if he does not know that the premises are no longer fit to live in.

Some states have laws that specifically set out the tenant's rights when the property becomes uninhabitable, such as the right to withhold rent or terminate the lease. In states that do not have such laws, consumer protection fraud laws, which typically cover the seller and buyer of consumer goods, may apply to landlord tenant disputes.

Can I terminate my apartment lease if the landlord refuses to exterminate for mice and rats?

Yes. The landlord has breached the implied warranty of habitability by allowing vermin to infest your apartment. However, if you have notified the landlord of the problem, he is allowed an opportunity to exterminate and put your apartment back into habitable condition.

SIDEBAR: Not all unhealthy conditions make the landlord liable for a breach of the warranty of habitability. For example, some of the paint in older buildings may be lead-based. The landlord is not required to remove the lead paint. However, under the Lead-Based Paint Hazard Reduction Act of 1992, the landlord must disclose known lead hazards when residential premises built before 1978 are leased. Landlords must also provide a pamphlet on lead poisoning to the renter before the pre-1978 property is rented.

The water pressure in my apartment is so low I can barely take a shower. Does this make my apartment unfit to live in?

Probably not. As long as the toilets flush, you can get drinking water and wash dishes, the low water pressure is more of an annoyance than a health issue. If, however, the water becomes unavailable during some parts of the day, your apartment is unfit to live in, and if the landlord does not fix the problem, you can terminate your lease.

I want the landlord to replace the regular glass in my sliding door with safety glass. If he refuses, is he violating the warranty of habitability?

Not unless a state or city housing code specifically requires safety glass on doors in rental units. Although the safety glass might be better security, leaving ordinary glass in the door does not necessarily put your safety at risk.

My wife is in a wheelchair and I want our landlord to lower the kitchen counters in our apartment. If he refuses, can we break the lease since the apartment is not habitable for my wife?

No. By renting you and your wife the apartment, the landlord has only guaranteed you a healthy, safe and clean place to live. His duty is to keep the property in a condition that does not deprive you and your wife of essential functions, such as cooking. Although it would be more convenient for the counters to be lowered, the landlord's refusal does not completely deprive you of the ability to use the kitchen as it was intended.

If I rent a space in a shopping center to open a bookstore, is there an implied warranty of habitability?

Yes, but it is different than the residential lease warranty. You have a commercial lease. Generally, the warranty only applies to private residences. There are separate laws concerning the maintenance of commercial properties. Typically, in a commercial lease situation, the landlord warrants that the premises are suitable for the tenant's business purposes. The subject of commercial leases and their warranties are outside the scope of this chapter.

My landlord insists I pay an extra fee during the summer for the cost of air conditioning. Is this legal?

It depends on your lease agreement. However, you should know that in some areas of the country, a landlord is required to provide cooling during high heat warnings so that it is fit for habitation. You are not required to reimburse him for his expenses in complying with the law.

TIP: Extra fees for heating are also illegal unless you are required to make the payments under the lease as additional rent or a separate utility.

My utilities are included as part of my rent. Can my landlord prevent me from running an air-conditioning window unit I have purchased?

Yes, if your lease sets a limit on the amount of energy or electricity you can use per month. If it does not, you are free to run the air conditioning unit and any other appliances. If the lease does not allow you to use the air conditioner, the landlord is still required to provide adequate cooling to make your apartment livable in conditions of extreme heat.

TIP: In regions where air conditioning in not common, there may be a clause in your lease that says you need permission from your landlord to install an air conditioner. Unless your landlord agrees to it, do not run the air conditioning unit or you will be in violation of your lease.

My landlord gave me a deal on my apartment if I took it "as is." Is she free to ignore the problems I am having with the water supply in the unit?

No, your landlord must bring your apartment "up to code" or fit for habitation. Your apartment must have a supply of running hot and cold water. The lack of water, heat, cooling, certain security and safety measures and other unsafe and unsanitary conditions mean the apartment is not fit to rent under the law. The landlord cannot get around the requirements by renting the apartment "as is" (i.e., he cannot have you waive your right to the implied warranty of habitability).

TIP: If you rent an apartment "as is," you cannot later complain of dingy paint, stained carpet and other cosmetic issues if the basic requirements of safety and hygiene are in place.

The heat is not working in our apartment and I have moved in with my mother. Am I still responsible for rent?

You must pay the rent until the lease is terminated. If the heat is not working, laws typically require the tenant to notify the landlord and allow him time to make the repair. If after notice, the landlord does not make the repair, you can terminate the lease and move out.

At a minimum, your notice should be sent certified mail, return receipt requested and include:

  • a description of the repairs needed;
  • a statement that a threat to your health or safety exists; and
  • a request that the repairs be made in a reasonable amount of time (in an emergency as little as 24 hours is reasonable; otherwise, allow for 7 days).

TIP: Notify the landlord immediately of the problem and that you have had to abandon the unit. He has a duty to make repairs to the heating unit in a reasonable period of time and notify you when the apartment is livable again. In very cold weather, requiring the heat to be repaired within 24 hours is reasonable.

I rented a condo in a nonsmoking unit, but my neighbor's smoke is infiltrating my unit. What are my options?

You may be able to move without breaking your lease if you can show that the secondhand smoke is affecting your health to the extent that a major life function is impaired. For example, if the secondhand smoke has caused severe asthma and you are now unable to breath without medication, your condo has become uninhabitable.

TIP: Some city codes prohibit smoking in rental dwellings. Check with your local code enforcement office to determine if you can make a formal complaint.

Even if the condo has not become unfit for habitation, you may still be able to terminate the lease under the "nuisance clause." Many leases contain a clause that prohibits activities that "unreasonably interfere" with other residents' enjoyment of the premises. You can argue that the secondhand smoke has unreasonable interfered with your enjoyment of the premises because of discomfort or health problems.

State laws typically define a nuisance as "anything which is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property."

If the landlord refuses to correct the problem, he could be liable for the tenant's medical expenses as a result of health problems due to secondhand smoke as well as moving expenses.

TIP: If you are a tenant smoking in a nonsmoking unit, the lease may allow the landlord to evict you for breaking the no-smoking policy.

Does a leaking ceiling make my apartment unfit for habitation?

Yes, although minor leaks may not immediately impact your safety or health, roof leaks typically violate city housing codes, making the apartment unfit to live in if the leaks are not repaired. A constant leak can lead to mold, mildew, bacteria and other health hazards. For example, the upstairs neighbor who has a toilet that constantly leaks into your bathroom is an unsafe and unsanitary condition.

Housing Codes

In addition to the implied duties required of a landlord, municipalities typically enact housing codes requiring all landlords to maintain their properties in conditions that do not endanger the life, health and safety of the tenants. They must maintain the property so that the occupants will not be subject to conditions that are dangerous, hazardous or detrimental to life, health or safety.

Violations of the code are dealt with directly by the municipality, not the tenant. If a tenant complains that the landlord has failed to comply with the local housing code, city building inspectors will inspect the property and take action if the property is not being lawfully maintained. The landlord will be ordered to make any necessary repairs and may be fined. In extreme cases, such as where there is no running water, the rental premises are condemned and the tenants must vacate.

Under housing codes, residential rental properties must have, at a minimum, the following:

  • Safe heating. A heating system that is in good working order and provides an adequate supply of heat to the property
  • Natural (or artificial) lighting that will allow normal indoor activities
  • Adequate ventilation
  • Satisfactory facilities for preparing and cooking food
  • A sink with hot and cold running (and sanitary) water
  • A flush toilet
  • Facilities for bathing
  • A private entrance so that the tenant does not have to go through another property to get to the premises
  • A means of escape from fire
  • A working smoke alarm

Are there laws other than housing codes that my landlord is required to follow?

Yes. The term "housing codes" typically refers to a number of regulations concerning rental properties. There are federal laws regarding the removal of lead paint and asbestos. Additionally, your landlord must follow certain city codes. Building codes cover the dwelling's electrical, plumbing and structural framework. Health codes concerning pests, rodents, garbage and other issues of cleanliness also apply to rental units. Finally, fire codes exist to ensure that smoke alarms, fire exits, extinguishers and alarms are present and working on the property.

TIP: If you believe health or fire codes are being violated, contact the city health and fire departments as well as the code enforcement office. Excessive garbage and illegal trash dumping should be referred to your local environmental health or protection office.

What exactly constitutes a housing code violation?

Violations vary from city to city, but typically one exists if your apartment has:

  • dilapidated stairs, railings, balconies or decks
  • no electricity or inoperable lights, outlets or switches
  • a faulty or inoperable elevator
  • sewer blockage
  • no gas service
  • no heat
  • no hot water
  • no smoke detector
  • no exterior locks, or inoperable locks
  • no water service
  • required exits blocked
  • roof leaks
  • inoperable or broken windows

My apartment is very run-down, but the landlord says it is "up to code." How can I find out if the apartment complex is actually safe?

Contact the city code enforcement office and ask if the complex is properly registered and certified by the city as a safe rental unit. You should also ask when the property was last inspected.

TIP: Before signing the lease or moving in, contact the city code enforcement office for a formal code report history on the apartment unit or building.

If the landlord has not fixed the furnace in my apartment by winter, is the apartment unfit for habitation?

Yes. City property and building codes require that rental units have adequate heating. 2

TIP: Cities have different requirements, but typically the temperature in a rental unit must be at least 60 degrees if the outside temperature is below freezing. For instance, Seattle requires a permanent heat source capable of maintaining an average room temperature of at least 65 degrees when outside temperatures are 24 degrees or above, and at least 58 degrees when the outside temperature is below 24 degrees.

We do not have heat in our apartment and I cannot get my landlord to respond to my complaints. What can I do to get the heating unit repaired?

Because adequate heating is required under city building or landlord/tenant codes, you can notify the city building inspector or the code enforcement section of your local city government. The building inspector will come to your apartment to verify your complaints. The inspector will then contact the landlord and require repairs to the heating unit. If the landlord does not comply, the city may begin imposing fines.

TIP: If it is very cold and there are children in the home, you should notify the building inspector immediately and emphasize that the lack of heating has become an emergency situation.

Because of a recent illness, I am now confined to a wheelchair. Is my landlord required to make any alterations or modifications to my apartment?

Yes. Because you are now disabled, your landlord should offer you an apartment that is handicapped accessible or modify your existing unit. The modifications should include such things as bathroom and tub rails, lowered light switches and thermostats, and widening doors.

Can I rent out my condo as a two-bedroom unit if the second bedroom does not have windows?

No. Building codes require windows in a bedroom in case of fire. Your unit is not fit for habitation as a two-bedroom unit.

The windows in my daughter's bedroom in our apartment are painted shut. Does the landlord need to make them operable?

Yes. Bedrooms must have escape routes in case of fire. If the landlord will not repair the window, notify the city fire marshal. In the meantime, if you cannot unstick the window yourself, you should move your daughter out of the bedroom.

TIP: Generally, if an apartment unit is three stories or higher, an alternate fire exit (such as a fire escape) must be available.

My apartment is overrun with roaches, even though the landlord has brought in an exterminator. I threatened to report a housing code violation, but he says I am responsible for the problem. Can I make a complaint?

You can complain, but the code enforcement inspector may decide the problem lies with you. Although landlords must keep rental units in compliance with housing codes, tenants have responsibilities too. To help control roaches, rats and other vermin, you are required to

  • keep the apartment clean and sanitary;
  • keep the stove, oven, refrigerator and other appliances clean; and
  • put your trash and garbage in the garbage carts or dumpsters.

SIDEBAR: Most leases permit you to be evicted for failing to maintain certain standards of cleanliness and safety in your apartment. For example, you cannot continually clog up plumbing fixtures, fail to remove trash and debris or tamper with smoke alarms and fire escapes.

The heat in my apartment is not working and the landlord has provided me with several space heaters instead of making repairs. Is this legal?

No. Housing codes require a permanent heat source in rental dwellings, such as an oil, gas or electric furnace, or permanently installed baseboard or wall heaters. Electric and kerosene space heaters are not legal as a primary heat source in rental housing. Your landlord is violating housing codes.

In this situation, contact the city housing code enforcement office immediately. Lack of utilities, such as heat, typically qualifies as an emergency, and the repairs must usually be made within 24 hours. If the landlord still does not repair the heating, you can terminate the lease after notifying him of your intention to move out.

Can I withhold rent if the landlord is cited for housing code violations?

It depends on your location. Some cities and states have laws that allow the tenant to withhold rent once the dwelling is declared unfit for human habitation by the housing code inspector. However, withholding rent does not mean you do not pay rent. Instead, your rent is typically deposited in a city escrow account until the landlord makes the required repairs.

If you have paid money into a rent withholding account and the landlord does not make repairs, your money will be returned after a period of time. For example, a landlord may have 6 months to make the repairs. During that time, you must continue to pay rent into the escrow account.

SIDEBAR: Rather than withhold rent, notify the landlord you are terminating the lease because the premises are not habitable. Include a statement that your health and safety are in danger because of the violations.

I received a notice that my apartment complex has several housing code violations and that tenants will be relocated. Why do I have to move?

The city building inspectors have determined that your apartment is not fit for human habitation until the landlord makes certain repairs. Tenants cannot, by law, occupy a dwelling that is unfit.

How do I find out more about tenant relocation because of housing code violations?

Contact the person on the notice you received or the city housing code office for assistance and ask for help. In some instances, city personnel will work with tenants to find a new place to live, often making calls to apartment buildings on behalf of residents, as well as assisting with difficult problems such as deposits, move-in dates and pet issues.

SIDEBAR: If you have been forced out of your apartment, you may have the right to sue the landlord for breach of contract (the lease) and breach of the warranty of habitability. Those types of lawsuits typically allow you to recover attorneys' fees and court costs.

How do I file a complaint regarding housing code violations in my apartment unit?

You must contact your city building or housing code enforcement office. You will likely be asked to complete a form, sometimes called a "request for service." Typically, an inspector will respond within 5 to 7 days, although a shorter time can be arranged in an emergency situation.

Some code enforcement offices require you to first contact the landlord by letter with your complaint and allow him a period of time to repair before the inspector will be sent out. An investigation of your complaint may be delayed until you comply with that requirement. Therefore, before contacting the code enforcement office, send a letter to the landlord listing all the problems, and indicate that a copy of the letter will be sent to the code enforcement office. Send one copy and keep another copy for your records.

What happens once I report a housing code violation?

Once you have made your complaint, a city building inspector is assigned to investigate.

The code enforcement office then writes the landlord a letter listing all the violations found during the inspection. The landlord is given a deadline to make repairs according to the severity of the problem. If the repairs are not made, the landlord is given a citation and must appear in court where he could be fined for his failure to repair.

TIP: Mark your calendar to call the code enforcement office to check the status of your complaint within 7 days from the date you first complained. Get the name and numbers of the building inspector assigned to your complaint and call to check the status with her as well. Continue to mark your calendar to call the inspector every 7 days until the matter is settled to your satisfaction.

Can I be evicted if I report housing code violations?

No. The landlord cannot evict you for reporting a violation as long as one exists, you have been paying your rent and there are no other issues that permit him to evict you.

SIDEBAR: Retaliatory or wrongful eviction is prohibited by law. You can sue in court and recover damages (moving expenses), attorneys' fees and court costs.

Can I report a housing code violation anonymously?

Most code enforcement offices require the name and address of the person complaining before sending out an inspector. However, you can ask that your identity not be divulged to the landlord.

Constructive Eviction

When a tenant is forced to leave the property because the landlord has allowed it to become unfit for habitation, the tenant has been constructively evicted. The tenant should notify the landlord, in writing, that the lease is terminated because the premises are not habitable. A statement should be included in the notification that the tenant's health and safety are in danger because of the uninhabitable conditions.

The toilets in my apartment have never worked properly and I am forced to use a neighbor's bathroom. Can I move out?

Yes. Assuming the landlord is aware of the ongoing problems with your toilets and has not made adequate repairs, notify him in writing that you have been constructively evicted because of the unsafe and unsanitary conditions, are unable to use and enjoy your apartment and are terminating the lease.

Despite numerous complaints to my landlord and calls to the police, my neighbors continue to have loud parties nearly every night and I am unable to sleep. Can I move out?

Yes. You are being deprived of the use and enjoyment of your apartment. Because your landlord refuses to control or evict your neighbors, notify him that you are moving out because his failure to remedy the situation has resulted in constructive eviction from your apartment.

My neighbors have highly offensive posters in their apartment, with the windows open directly in my view; the landlord refuses to force them to put in window coverings. Can I move out before my lease ends?

No. You must be able to show that some portion of your apartment has become unusable due to the landlord's failure to remedy the situation with the neighbors. Although their wall hangings may be offensive, in order to argue that you have been constructively evicted, you must be able to show that because of the wall hangings:

  • your apartment has become unfit for human habitation ;
  • conditions were created that were dangerous to your life, health or safety; and
  • the essential functions of your apartment became unusable.