My Landlord Will Not Make Repairs! What Can I Do? (PART II)

By Matthew T. Hovey, Esquire

This week I am providing a three-part series on the Implied Warranty of Habitability. Part I, posted on Monday, explained what the Implied Warranty of Habitability is and provided examples of actionable violations. Part II, today’s posting, will explain what someone can do if they are a victim of a violation of the Warranty. Part III will discuss the issue of damages associated with a violation of the Warranty and what you might reasonably expect to recover beyond the cost of any repairs.

For an explanation of what is the Implied Warranty of Habitability and a list of recognized examples of actionable deficiencies, please see Part I. Again, if you, a family member, or a friend are currently being subjected to any of these recognized violations of the Warranty or another defect that you believe rises to an equal level of disruption to your ability to live in the apartment, please call our office immediately. Do not delay.

Q: CAN I DO ANYTHING TO REMEDY THE PROBLEM IF I AM BEING SUBJECTED TO A VIOLATION OF THE IMPLIED WARRANTY OF HABITABILITY?

Yes, but for you to be able to take any action to remedy the situation, the court requires three things to occur: (1) you provide notice to the landlord of the problem; (2) you provide the landlord with a reasonable amount of time to remedy the problem; and (3) the landlord fails to remedy the problem. See below for an explanation of how you may subsequently remedy the situation.

Q: WHAT TYPE OF NOTICE IS REQUIRED?

A simple notice is all that is required. Notify the landlord, preferably in writing, of the defective condition and explain the steps you will take to remedy the defect, if necessary. This step is essential!

Q: WHAT IS A REASONABLE AMOUNT OF TIME TO ALLOW FOR THE PROBLEM TO BE REMEDIED?

The courts have not provided guidelines as to a what qualifies as a reasonable amount of time, nor could they realistically do so. A reasonable amount of time will depend entirely on the facts. A tenant with no heat in the heart of the winter will obviously be allowed to act independent of the landlord sooner than a tenant with no hot water in the middle of the summer. My recommendation is to protect yourself and consult with an attorney.

Q: THE LANDLORD FAILED TO MAKE THE REPAIR, SO NOW WHAT? WHAT CAN I DO TO REMEDY THE PROBLEM?

The tenant has a few options, including:

(a) Cancel the Lease: You may immediately terminate the lease and vacate the property. You will not be obligated to pay future rent. Please note, however, that if you terminate the lease, then you must vacate the premises.

(b) Repair and Deduct: You may repair the defect or hire someone to repair the defect. If you or someone else repairs the defect, then you may deduct the reasonable cost of the repairs from monthly rental payment(s). The total cost of the repairs, however, cannot exceed the value the rent remaining on the lease. In other words, if the monthly rent is $1000, the lease is for one year, and there are eight months left on the lease, then you cannot reasonably spend more than $8000 to make the repair.

(c) Withhold the Rent: You may withhold an amount of rent equal to the loss of use of the rental property. This may be difficult to determine and may even require a discussion with an expert. If you are going to withhold your rent, then please consult with an attorney on what percentage of your rent would be proper. The landlordCANNOT evict you while you are withholding the rent pursuant to a violation of the Implied Warranty of Habitability. While you are NOTrequired to place the rent in escrow, as a practical note, I strongly recommend that you do until otherwise advised by your attorney or the court.

(d) File a Claim for Damages: Will discussed next Monday in Part III.

Q: WHAT IF I DEDUCT THE WRONG AMOUNT?

If the court determines that there is a violation of the Implied Warranty of Habitability, but you withheld the wrong amount, then you cannot be evicted from the rental property if you immediately pay the landlord the owed portion of the rent. You should not be penalized and, because of the violation, will not be charged the court costs (different from attorneys fees).

Again, if you, a family member, or a friend are currently being subjected to any of these recognized violations of the Warranty or another defect that you believe rises to an equal level of disruption to your ability to live in the apartment, please call our office immediately. Do not delay. Part III will be published on Monday, August 9, 2010.

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