Tenant/landlord conflicts typically arise because one party has violated the terms of the lease. Landlords are bound by an implied warranty of habitability based on the language contained in the lease. When a landlord does not perform the duties outlined by the lease and the law, especially those implied by the warranty of habitability, there are steps tenants can take to hold them accountable.
Do not make use of these remedies without first obtaining legal advice. The information provided here is not legal advice.
Breach of Warranty of Habitability
To open the way to accessing remedies against landlord breach of warranty of habitability, the tenant should proceed in the following manner:
For the tenant to make the repairs and deduct the cost from rent due, the repairs must be necessary to make the premises habitable. The amount of money paid for the repair cannot exceed the amount still due under the lease. Tenant must obtain written estimates (at least two) from licensed professionals and choose a reasonably priced option. The repairs must be reasonable and the burden of proving that the repairs are both necessary to maintain habitability and reasonable in terms of cost and expertise falls on the tenant.
- Document the problem (pictures, video, etc.). Notify landlord and explain, in detail, the nature of the problem. Utilize the landlord’s preferred method of communication: phone, fax, email, text, etc. It is always advisable to leave a paper trail via email or certified letter.
- If applicable, make sure you can prove that the problem is a serious violation of the housing code. The Department of Licenses and Inspections will be able to advise you if any structural problems in your apartment are in violation of the housing code.
- Give the landlord a reasonable amount of time to remedy the problem. Reasonable time varies with the severity of the defect: for lack of heat in very cold weather this could be 24 hours. (If you smell gas or if there is a fire, contact the gas emergency line or the fire department first, not the landlord).
- If the landlord fails to correct the violation or serious disrepair problem, you are within your rights to utilize legal remedies such as: "repair and deduct", escrow/withhold rent or move out of the premises. Before implementing these remedies, it is advisable to seek legal advice. The Fair Housing Commission, Tenant Union Representative Network and Community Legal Services are organizations that advocate for tenants’ rights and can offer legal guidance and resources.
If the warranty of habitability is breached to a very dangerous extent and the apartment is unsafe and uninhabitable, the tenant can cancel the lease and move out. This can only be done if the tenant has informed the landlord of the problems (e.g. lack of heat in winter, broken locks, lack of hot water, etc), has given the landlord a reasonable amount of time to correct the problem, has informed the landlord of intention to terminate lease as a remedy for breach of warranty, has followed the recommended procedure for checkout, has delivered the keys and has left a forwarding address for the return of the security deposit. Remember, if you cannot prove that the defect existed and if you did not follow the correct procedure, the landlord may claim that you are in breach by terminating the lease and moving out.
In order to protect your security deposit and not get charged for damages that you did not incur, take the following precautions:
The landlord has 30 days to return the security deposit to you after the termination of the lease. If the security deposit is not returned in full because of claimed damages to the property, cleaning fees, unpaid rent or other charges, the landlord must supply you with an itemized list of the deductions and the remainder of the deposit, if any.
- Inspect your unit carefully upon move-in. Make a list documenting the condition of the apartment and present a copy to your landlord via certified mail. If possible, have the landlord inspect your unit with you.
- You can use our Move In/Move Out Checklist or draw up your own (include holes, or marks on the wall, damage to floors and windows, any marred or broken appliances that came with the property). This will ensure that you will not be charged for damage from the previous tenants.
- Before you move out, perform a similar inspection of the premises and draw up a list similar to the one used at move-in. Document all damages, including normal wear and tear. Make sure you clean the apartment even if you did not find it clean when you moved in. The initial list and the final list should differ only in terms of "normal wear and tear". You are responsible for damages done through misuse, abuse and negligence.
- Make sure you have given proper notice of termination and provided the landlord with written notification of your forwarding address. If the landlord does not have your forwarding address, he/she is not required to return deposit. Proof that you have provided the landlord with your forwarding address is very important if you plan to use legal recourse to recover any wrongfully withheld funds.
If the landlord does not communicate with you in writing within the 30-day period required by law, they forfeit the right to withhold any money for damages or cleaning. The landlord can still withhold for back rent and/or unpaid utility bills, though. If the landlord does communicate with you within the indicated timeframe but you do not agree to the list of damages or with the amount of money they are withholding, write a letter to your landlord, mail it certified, return receipt requested, contesting the charges and requesting immediate return of the money withheld.