Regardless of any clause in your lease, in every state except Arkansas, you have a basic right to a habitable home and to having the landlord maintain it in that condition during your lease. If the landlord violates this right by failing to make repairs to major problems, you may be able to respond by withholding rent, moving out, or taking other strong actions. This is true even if the unit was not habitable when you started renting it.
Building codes and court decisions define what “habitable” means, but generally this involves preserving the integrity of the building’s structural elements and keeping common areas safe and clean. A landlord also needs to make sure that heating, air conditioning, ventilation, plumbing, electrical, and sanitary systems are operating effectively and safely. They need to take prompt action to remove trash and address infestations by bedbugs or vermin. Tenants can expect reasonable amounts of both hot and cold water and heat at reasonable times.
State and Local Laws
States generally require landlords to keep units in a habitable condition, but usually a local ordinance will have a stronger, more specific impact. State laws can be helpful, however, in sparsely populated areas where no building code applies. Also, they may provide remedies for violations of tenant rights in greater detail than local laws do.
Most cities and counties have building or housing codes to control occupancy standards, space requirements, structural features, sanitation, ventilation, water supply, fire protection, and other key safety features of units. Often, a local ordinance will specifically require a landlord to maintain common areas and other parts of the property under their control in a safe condition. Even if an issue is not specifically covered, it may fall within the general category of a “nuisance.” This term is more serious than it sounds and can cover anything that is hazardous to safety or health or morally offensive. Nuisances range from overcrowding, deficient plumbing, and excessive noise to drug dealing and prostitution on the premises.
Even if your landlord is technically complying with the bare minimum requirements of building and housing codes, a court may find that the unit is not fit for human occupation under the circumstances. If you lack a strong building code in your area, you may want to look at court decisions to determine which factors will be considered. The concept of what makes a unit uninhabitable varies in different parts of the country and changes over time based on technological and scientific advances.
While the basic responsibility for keeping a unit habitable falls on the landlord, tenants also have certain obligations. For example, they need to take care of their trash in a responsible way, keep plumbing fixtures clean, use utilities in a safe and careful manner, and fix problems that they cause or cover the cost of fixing them. If they fail to meet these obligations, the landlord can deduct from their security deposit to cover these costs.
In some cases, a landlord will reach an agreement with a tenant that shifts some repair responsibilities to them in exchange for a reduction in the rent. However, this more often applies to minor repairs than major problems. State laws may limit the degree to which a landlord can do this, and a landlord never can contract with a tenant to waive their right to a habitable unit.
Getting the Landlord to Act
If a major repair issue arises, you should contact your landlord about it in writing to create a record of the request and the time in which you asked for the work to be done. You have a right to ask for immediate action if the problem is jeopardizing your health or safety. Verifying delivery of the request to the landlord is important, as well as keeping records of the landlord’s response (or lack of response) to the issue. If the landlord makes an agreement about fixing the repair, try to get it in writing as you understand it and then send the document to the landlord, asking if they agree. If the landlord fails to respond, their agreement is presumed by law.
Options to Consider When the Landlord Fails to Make Repairs
Failing to make major repairs is a serious shortfall by the landlord, and the remedies for it are equally serious. Before you take one of these steps, you should make sure that the problem has a serious impact on health or safety and that it was not caused by you. You should also check that the landlord received adequate notice and time to fix the problem.
Often, a tenant will withhold rent until the repairs are done. If you are considering taking this approach, you should read our detailed discussion of withholding rent to make sure that you can do it without exposing yourself to a legitimate eviction. You can also potentially move out, breaking your lease early, and then fight back against the landlord’s attempt to claim the rest of the rent by showing that the lack of repair made the unit uninhabitable. In other words, the landlord essentially (“constructively”) evicted you by failing to keep the unit in a livable condition.
Other, less aggressive options include making the repairs or covering their cost on your own and then deducting the cost of the repairs from your rent. This option is available only to a limited extent and is not available in some states, although some cities in those states allow it. You should make sure that you are not using the procedure more often or for a more substantial amount of rent than the rules allow.
You can also pay rent as usual and then sue the landlord in small claims court for the reduction in property value caused by the hazard. This approach shields you from eviction but not from the possibility that the landlord will terminate the lease. (A landlord cannot usually retaliate against a tenant, but sometimes they do.) The lawsuit will ask for the difference between the rent that you paid and the actual value of the unit, multiplied by the number of months that the hazard persisted. You might also be able to get compensation for any injuries and property damage caused by the hazard, as well as an order requiring the landlord to fix it.
Finally, you can report the landlord’s failure to make repairs to housing inspectors if the hazard violates a local building code. An inspector can order the landlord to fix it. If they still fail to comply, they can face fines and criminal penalties.