In virtually all states, landlords must offer and maintain fit and habitable housing. This duty is known as the “implied warranty of habitability.” It means that when renting a house or apartment, the landlord is bound to an unspoken guarantee that the dwelling will be fit to live in. The implied warranty is relatively new, appearing in court cases and statutes since the 1970s. Only Arkansas does not impose this duty.
What Does “Fit and Habitable” Mean?
The implied warranty of habitability is based on state laws (statutes) and local ordinances and building codes, which specify minimum requirements for hot water, heat, plumbing, weatherproofing, and other essential services. But there’s more—a judge can declare a rental unfit because it does not measure up to a reasonable person’s understanding of decent, livable housing.
In general, to comply with the duty to offer fit and habitable housing, a landlord must:
- Maintain plumbing, electrical, ventilating, heating, air-conditioning, and other systems
- Keep common areas, such as lobbies, stairways, and walkways, clean and safe
- Supply water and hot water in sufficient quantities and temperatures
- Provide trash receptacles, and
- In many states, provide adequate security measures, such as door and window locks.
Find out how Liable Landlords Are for Unsafe Living Conditions.
Tenant Responses to Unfit Rentals
Unfortunately, some landlords are either ignorant of their duty to maintain fit housing, or deliberately ignore it. Tenant responses vary depending on state law. But before availing themselves of any of the following three remedies, the following must be true in most states:
- The tenant or tenant’s guests did not cause the problem.
- The tenant notified the landlord and allowed for a reasonable period of time for the landlord to fix it, and
- In some situations, the tenant is not behind in the rent (or will escrow the rent pending repairs).
If the rental is seriously deficient and the landlord has failed to fix the problems, despite having been given a reasonable period of time in which to do so, tenants can break the lease and move out without responsibility for future rent.
In some states, tenants can repair the problem and deduct the expense from the rent. States that offer this remedy typically require that the expense be below a certain amount, and that the remedy not be used more than once or twice within a specified time period.
Some states also allow tenants to withhold the rent until the landlord makes repairs. Some states require tenants to place the rent in a court-sponsored escrow account, to guard against misusing this remedy as a way to avoid paying rent. See the chart below, “Tenant Responses to Unfit Rentals,” for details.
Involving Building, Health, or Safety Inspectors
Tenants may also want to call local or state inspectors if the problem is also a violation of a code or ordinance. For example, a landlord’s refusal to remove junk that obstructs a fire escape would constitute a violation of safety and fire codes; failure to deal with a rat infestation would be involve the health and safety codes. The response from the inspector will largely depend on the seriousness of the problem, the workload faced by the agency in charge of enforcing the codes, and the number of residents affected.
Suing in Court
Tenants may also take their case to court, typically small claims court, to ask a judge to order a retroactive rent rebate, based on the diminished value of the rental. It works like this: The tenant argues that the defective rental was not worth the stated rent, and asks that the judge determine its market value in its substandard state. The tenant’s measure of damages is the difference between the stated rent and the diminished rent, times the number of months during which the landlord failed to make repairs. Judges may also order the rent to remain reduced until the property is brought up to par.
When many tenants are living in substandard conditions, they sometimes band together and sue in regular trial court, often with the help of a local legal aid group. These cases sometimes result in substantial damages and the appointment of a receiver, who oversees repairs and reports back to the judge.