TENANT’S RIGHTS & DUTIES Generally; implied covenant of habitability; right to repair and constructive eviction

The Questions  What are some of the tenant’s rights created under the rental agreement ?  What is in an implied warranty of habitability? How may a breach of that warranty amount to constructive eviction?  What are the duties that a tenant owes to the landlord?  Does the tenant have a duty to make minor repairs to the property?

Tenant’s Rights – Landlord’s Duties  The LL must provide and maintain the rental property and obey the rules of the rental agreement. The LL or his/her rep must be accessible to the tenant and must:  1. Keep the premises up to code; 2. Maintain the roof, walls and structural components; 3. Keep common areas reasonably clean and safe; 4. Provide a reasonable pest control program; 5. Provide facilities to supply heat, electricity, and hot and cold water; 6. Provide reasonably adequate locks; 7. Maintain appliances furnished with the rental unit; and 8. Comply with any duties imposed by local laws.

LL Must Make Minor Repairs  Dependent on a number of factors, beginning with the nature of the problem. Purely cosmetic repairs are not legally required. Mildewed grout or worn carpet, for example, are less likely to require a LL's attention than loose tiles that make the shower unusable or holes in carpeting that could trip someone.  Are the tenant’s specific complaints addressed by:  the terms of the lease?  any oral or written promises the LL has made?  state and local building codes/state LL-tenant laws.

Getting the LL to Make Minor Repairs  Tenants in an uninhabitable dwelling are often allowed by law to withhold rent or use "repair and deduct" procedures, but taking those actions for merely minor problems could get you evicted.

Strategies for Getting LLs to Fix Minor Problems  Have the tenant write a repair request. Even if the tenant already asked the LL to take care of a problem, a written request is almost always helpful.  Provides an opportunity to articulate the problem clearly and point out why it's in the LL’s best interest to have it fixed.  A letter also allows a reluctant LL to think it over without having to give an immediate, knee-jerk "no,“ for an answer.

What’s the LL’s Motivation?  Develop themes in the letter. Explain: the problem might become worse and more costly if not taken care of ASAP.  LL might find it easy to ignore the drippy faucet until the possibility of an overflowing sink and water damage to the floors is noted.  Potential for injury. A hole in the stairway carpeting could cause someone to trip and fall, making the LL liable for the injury.  LLs are sensitive to security issues; point out any security risks created by the problem, e.g. a broken lock or faulty hallway light. Problem affects other tenants? Emphasize that.

Propose Mediation  If oral and written requests are ignored, contact a mediation service, which will invite the landlord to meet with the tenant and a trained mediator. The mediator will help the two of you reach a mutually- acceptable solution, but will not (unlike a judge) impose a solution.  Many communities offer free or low-cost mediation services as an alternative to going to court.

Contact the Authorities  Report the LL to the local building or housing agency.  Some minor problems may violate local building or housing codes. Call the agency that enforces these codes in your area to find out.  Officials at the agency should be able to explain whether the problem violates local or state codes, and may be able to take action against the landlord.

Try to Keep It Friendly  Reporting the LL will not improve the LL-Tenant relationship, which may be important if the tenant wants to stay in the unit for some time.  State "anti-retaliation" laws, which prohibit rent hikes, terminations, or other adverse actions following a tenant's complaint to a government agency or exercise of a legal right, cannot forestall a sour relationship.

Litigation – The Last Option  Some states allow the tenant to sue the LL in small claims court. If the tenant can prove that the unaddressed problems decrease the value of the unit, a judge can award the difference between what the tenant has been paying in rent and the amount the unit is actually worth.  Obviously, suing the LL landlord is not the best option if salvaging the LL-Tenant relationship is important. But, when all else fails and moving elsewhere is not feasible, taking the LL to court might be the right remedy.

Landlords Must Fix Major Problems  LL is responsible for keeping the unit in a habitable or livable condition, i.e.: keeping the structure of the building sound, (stairways, floors, and roofs) keep electrical, heating, and plumbing systems operating safely; supplying hot & cold water in reasonable amounts; exterminating infestations of pests such as cockroaches.  If a problem is the result of the tenant’s carelessness – e.g. vermin infestation caused by poor housekeeping -- the repair bill will likely properly be the tenant’s.  If the tenant does not pay it, the amount may be taken out of the security deposit.

Right To Have Repairs  Once notified of a defective condition and unless circumstances are beyond the landlord's control, the landlord has a certain amount of time to make repairs. Except for the limited right to make minor repairs and deduct their cost from the rent, a tenant has no right to withhold rent.  The cost per repair may not exceed certain limits and reasonable notice to the landlord is required.

Right to Safe Prop erty  The landlord may not knowingly rent property that is condemned. If a landlord fails to perform his or her duties, three types of remedies may be available to the tenant:  1. The right to terminate the rental agreement and move out after giving written notice to the landlord. 2. The right to initiate litigation or arbitration proceedings. 3. The right to make limited repairs and deduct their cost from the rent.

Constructive Eviction  Constructive eviction occurs when residential rental property is an uninhabitable condition, i.e. the uninhabitable condition makes the property unsuitable to live in.  When residential real property is uninhabitable, it creates a condition under which the tenant has been "constructively evicted" that is, the facts and circumstances are such that the tenant is unable to have full use and possession of the rental property and therefore, in reality, has been "evicted."

How Constructive Eviction Works  To claim constructive eviction and relieve the tenant from the obligation to pay rent to the LL, the tenant must serve the LL with written notice of the constructive eviction and provide the LL with a reasonable amount of time to cure the defects.  If the LL does not correct the defects within a reasonable amount of time, the tenant may be able to leave the rental property and not be responsible for payment of rent which would have been due under the lease or rental agreement.

Should I Stay or Should I Go?  Since the habitability of a residential rental unit is ensured by warranties of habitability, which are prescribed by common and/or statutory law, a breach of the warranty of habitability or a covenant within the lease may constitute constructive eviction, allowing the tenant to withhold rent, repair the problem and deduct the cost from the rent, or recover damages.  In most cases, the tenant must physically move out of the property and then sue for damages, termination of the lease, etc.

Be Current, Provide Notice  In general, before exercising any of the Landlord- Tenant Act's remedies, the tenant:  (1) must be current in rent payments, and  (2) must give the landlord written notice of the defective condition.

Tenant’s Duties  1. Pay rent;  2. Keep the premises clean and sanitary; 3. Do not damage or permit damage to the unit; 4. Dispose of garbage; properly use fixtures and appliances; 5. Restore the property to its initial condition, except for normal wear and tear at the end of the term; 6. Comply with the rental agreement.  If the tenant fails to perform his/her duties, the landlord may seek to evict the tenant.

Tenant’s Breach  If a tenant fails to maintain the premises, the landlord may:  1. Evict the tenant. 2. Make repairs and bill the tenant. 3. Sue tenant for damages or force compliance with the rental agreement.

The Questions in Review  What are some of the tenant’s rights created under the rental agreement ?  What is in an implied warranty of habitability? How may a breach of that warranty amount to constructive eviction?  What are the duties that a tenant owes to the landlord?  Does the tenant have a duty to make minor repairs to the property?