In almost every state, tenants are entitled to a safe and livable home, regardless of how much rent you pay or whether your landlord tries to get you to accept a hovel. We’re talking about basic, important items such as a roof that keeps out rain and snow, hot water, heat, and sturdy floors and walls that aren’t in danger of imminent collapse. This list of necessary features includes the absence of significant danger from lead, asbestos, and, most recently, mold, plus reasonable protection from criminal intrusion. If the landlord refuses to provide or repair these aspects of your home, you may, depending on where you live, be able to:
- withhold rent
- pay for repairs yourself and deduct the cost from your rent
- sue the landlord, or
- move out without notice and without liability for future rent.
Your right to livable housing has a lofty-sounding legal name: You’re entitled to the benefit of the landlord’s “implied warranty of habitability.” This means that, whether she knows it or not, your landlord has promised you a livable place simply by renting it to you. This basic right originated in court decisions in the early 1970s. By now, all but one state (Arkansas) has embraced this notion, either by decision from their highest court or by statute. And even in Arkansas, some cities and counties have enacted ordinances that come close to establishing the same standards.
The Implied Warranty of Habitability
So what does it mean to say that your landlord is expected to fulfill an implied warranty of habitability? It means that the property owner must:
- keep basic structural elements of the building, including floors, stairs, walls, and roofs, safe and intact
- maintain all common areas, such as hallways and stairways, in a safe and clean condition
- keep electrical, plumbing, sanitary, heating, ventilating, and air-conditioning systems and elevators operating safely
- supply cold and hot water and heat in reasonable amounts at reasonable times
- provide trash receptacles and arrange for trash pick-up
- manage known environmental toxins such as lead paint dust and asbestos so that they don’t pose a significant danger
- in most states, provide rental property that is reasonably safe from the threat of foreseeable criminal intrusions, and
- exterminate infestations of rodents and other vermin. In virtually every state, these rights are yours, no matter what the landlord has asked you to sign or agree to. (In narrow situations, landlords and tenants in Texas and Maine can agree that certain habitability requirements will be the responsibility of the tenant.) In other words, the landlord cannot shrug off these responsibilities in a “disclaimer” when the tenancy begins. And he can’t effectively ask you to waive your right to them. (Any so-called waiver will not be upheld by a court.)
Major Habitability Problems Versus Minor Problems
As you look over the above list of repairs and maintenance that make up the landlord’s duty to provide fit housing, you can see why these are called major, not minor, issues. When they pop up, a reasonable occupant would be concerned for her health or safety. Put another way, a reasonable person wouldn’t freely choose to live in a place with any of these problems. On the other hand, a minor repair is annoying, limiting, or distasteful—and it may be close to driving you nuts—but it wouldn’t seriously endanger the health or safety of a reasonable tenant. A defect is “minor” not because of its cost, but because it doesn’t make your rental uninhabitable. For example, if the only thing between you and a heated apartment is a $50 furnace part, the repair is “major,” because an unheated home is unlivable. On the other hand, replacing an ugly but otherwise safe carpet may cost thousands, but it is a “minor” repair, because floor coverings that are merely shabby do not make your home unfit.
The chart below gives more examples of major versus minor repair problems.
|Classifying Your Repair Problem|
It is essential that you correctly classify your repair problem—major or minor—before approaching your landlord or taking stronger measures. Many of the legal steps you can take to force a landlord to deal with a major repair will not work for a minor repair and can land you in legal hot water if used improperly.
Following are some concrete examples of the two types of problems. The test for every repair problem is: Does this make my rental unfit to live in? If so, it’s major; if not, it’s minor.
|Major Repair||Minor Repair|
|A roof leak that results in a wall of mildew in the bedroom||A roof leak that has caused a slight stain in the ceiling plaster in the hallway|
|A totally broken hot water heater||A hot water heater that heats to five degrees less than the temperature required by state statute|
|A furnace that won’t turn on||A furnace that clanks and creaks when the fan runs|
|A front door that will not lock||A screen door (in front of a door that locks) with a broken latch|
|A toilet that won’t flush in a one-bathroom rental||A toilet that flushes poorly in a two-bath unit|
|A lobby that is filled with tenants’ garbage because the landlord has failed to provide trash bins and has not arranged for pick-up||A lobby that’s in need of a good vacuuming and paint job|
|A broken heater during the winter||A broken heater in the summer during a warm spell|
|An apartment rented to a family with young children where there is deteriorating lead paint||An apartment with faded and dirty latex paint|
What Exactly Does “Fit and Habitable” Mean?
Often the line between major and minor isn’t clear. To better place your problem in the right category, you’ll have to go to the source of your state’s implied warranty—a state code or statute or, in some states, a court decision. Your local government (city or county) may also have ordinances that establish habitability requirements. If so, you may find that there are specifics (such as a minimum hot water temperature) that can help you label your problem.
This section discusses what these laws typically require of a landlord. Then, in a related article (Getting Your Landlord to Make Repairs), we’ll show you what you can do to motivate your landlord to comply--for example, by withholding the rent or repairing the problem and deducting the cost from your rent.
City or county building or housing codes regulate structural aspects of buildings and usually set specific space standards, such as the minimum size of sleeping rooms. They also establish minimum requirements for light and ventilation, sanitation and sewage disposal, heating, water supply (such as how hot the water must be), fire protection, wiring (such as the number of electrical outlets per room), and security devices such as locks.
Most local housing codes also prohibit “nuisances.” A nuisance is something that is dangerous to human life or detrimental to health or morals—for example, overcrowding a room with occupants or providing insufficient ventilation, illumination, or sewage capacity. Drug dealing on the premises is also a legal nuisance, since it invariably involves the comings and goings of a criminal element with a potential for unhealthy violence.
Contact your local building, housing, health, and/or fire departments for information on the exact requirements your landlord must meet.
State Housing Codes
Many states have general laws requiring landlords to keep rental units fit. These laws are usually less detailed than local codes, but in some states they’re rather specific—some have statewide door and window lock laws, for example. To find our whether your state has any laws in this area:
- Go to your local law library (or go online) and check your landlord-tenant statutes.
- Look in the index of your state codes for subentries under Landlord-Tenant, such as “Duty to Maintain” or “Repairs.”
- Contact your state’s consumer protection agency and ask for any informational booklets.
The statute that sets out the specific requirements for a habitable building usually won’t tell you what to do if yours doesn’t measure up. Your legal recourse (called your legal “remedy”) is usually found with other landlord-tenant statutes, and sometimes in the code sections that deal with unlawful detainer (eviction) procedures.
Federal Laws on Lead and Asbestos
When lead-based paint dust and asbestos fibers are inhaled, they can cause significant health problems. Dangerous levels of either toxin can make your rental unlivable and usually constitute a violation of the implied warranty of habitability.
Federal law has stepped in to require landlords at least to warn tenants of the presence of lead dust and asbestos. In addition, if you are injured by one of these toxins and can show that your landlord knew of its presence, you may be able to sue for your injuries.
Lead. A federal law known as Title X (“Ten”) of the United States Code requires landlords of pre-1978 buildings to tell every new tenant about the presence of lead-based paint if the landlord knows it’s on the property. (42 U.S. Code § 4852d.) Your landlord should have given you a disclosure form and the government (the U.S. Environmental Protection Agency, or EPA) booklet “Protect Your Family From Lead in Your Home” when you signed the lease or rental agreement. Federal law does not, at this time, require the landlord to test for lead paint dust. In addition to the federal rules, many state laws impose maintenance and remediation duties, which may involve covering the lead-based paint or carefully removing it. For more information on Title X, contact the National Lead Information Center at 800-424-LEAD, or the EPA website. To learn whether your state has laws in this field, contact your state’s consumer protection agency.
Asbestos. Asbestos fibers that have begun to break down (from the passage of time or by being disturbed through repair work) will enter the air and pose health risks to those who breathe them. Under regulations imposed by the U.S. Occupational Safety and Health Administration (OSHA), owners of buildings constructed before 1981 must install warning labels, train staff, and notify people who work in areas that might contain asbestos. (29 Code of Federal Regulations (C.F.R.) §§ 1910.1001 and following.) Although these rules are designed to protect workers, they are also a boon to tenants, because once landlords learn about the presence of airborne asbestos fibers, they’re on notice of a dangerous situation. If they fail to take action (by encapsulating the asbestos, for example), they risk a costly lawsuit if one of their tenants is injured. The landlord generally does not have to take action if the asbestos is intact and is not entering the airstream. For further information on asbestos rules, inspections, and control, contact the nearest office of the U.S. Occupational Safety and Health Administration (OSHA) or visit the OSHA website.