Landlord's Failure to Repair

If problems exist that put the health and safety of the tenants in danger, the landlord is required to make repairs when he is notified by either the tenant or the municipality.

Tenant's Options

If the landlord fails to make repairs that affect the health or safety of the tenant, the tenant has the right to break the lease and move out. Alternatively (and only in extreme cases), the tenant can stay on the premises and withhold all or a part of the rent until the repairs are made. The tenant can also file a lawsuit against the landlord for breaching the implied warranty of habitability. The tenant's options are:

Repair and Deduct

If you wish to deduct an amount from your rent because your landlord is not making repairs and you had to correct the problem, you must:

  • Notify him in writing, with the date at the top of the letter, of the problems you are facing and request repairs within a reasonable time (e.g., 7 business days).
  • Keep a copy of your written notice to the landlord.
  • Contact at least two contractors for repair estimates.
  • If the landlord does not make the repairs by the deadline, hire the person with the lowest bid to do the job.
  • Keep the costs reasonable and save all your receipts.
  • When the next rent payment is due, deduct the cost of the repairs from your usual rent payment and attach copies of the repair receipts.

TIP: It is a good idea to take a picture of the problem and enclose the photo with your notice. This lets the landlord know you are serious about getting the repair made.

The "repair and deduct" remedy is for minor repairs only. It should never be used with major repairs, like new carpeting or appliances. Your rent payment will be so greatly reduced after you deduct those costs, it is likely your landlord will attempt to evict you for nonpayment of rent.

TIP: If you do the repairs yourself, your only receipts are the ones for materials. You cannot put a price on your time and labor and deduct from the rent.

Withhold Rent

Some states have rent escrow funds where a tenant can deposit rent that she is withholding while the landlord refuses to make repairs. Typically, the tenant deposits the rent payment with the court when she files a "rent escrow action." There may be a filing fee. To file a rent escrow action, you must:

  • Notify the landlord in writing, preferably by certified mail.
  • Wait a required amount of time, such as 7 days, for the landlord to respond.
  • Complete the forms for a rent escrow action and deposit the rent with the court's clerk or administrator, along with a copy of your notice to the landlord.

If the rent escrow action is set for a hearing and the tenant proves the landlord refused to make necessary repairs, the judge can order:2

  • the landlord to fix the problem,
  • the landlord fined,
  • the tenant to "repair and deduct,"
  • future rents paid to the court until the repairs are made, and/or
  • to return all, none or part of the rent to the tenant.

Terminate Lease

If the landlord refuses to make repairs, the tenant may terminate the lease after giving the landlord a notice of the problem and demanding repairs. However, termination is only permitted when the conditions are unfit for habitability and the landlord has been given a reasonable opportunity to repair. For example, a leaking ceiling that is about to cave in and has caused water damage to the tenant's furniture makes the premises uninhabitable and the tenant can terminate the lease. Mere inconvenience, such as dripping faucet, due to the landlord's failure to repair is not a valid reason for terminating the lease.

File Suit

The tenant always has to option to file a lawsuit against the landlord for breach the implied warranty of habitability if the failure to repair is a threat to the tenant's health and safety. The tenant must first send a demand letter to the landlord, demanding repairs. Once the lawsuit is filed, the tenant may recover damages (i.e., damage to property as a result of repairs not being done, costs of moving and attorneys' fees).

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