If, despite your businesslike written repair requests, the landlord hasn’t fixed or addressed a serious problem that truly makes your rental unit uninhabitable—rats in the kitchen, for example—you will want to take stronger measures. Your options include one or more of what we call the “big sticks” in a tenant’s arsenal. Big stick remedies include:
- calling state or local building or health inspectors
- withholding the rent
- repairing the problem, or having it repaired by a professional, and deducting the cost from your rent (called “repair-and-deduct”)
- moving out, or
- paying the rent and then suing the landlord for the difference between the rent you paid and the value of the defective premises.
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It’s important to understand that you shouldn’t use a big stick remedy rashly. Before you withhold rent, move out, or adopt another extreme remedy, make sure every one of these conditions is met:
- It's a major repair or habitability problem. The problem must be serious, not just annoying, and msut imperil your health or safety. Not every building code violation or annoying defect in your rental home justifies use of a “big stick” against the landlord.
- It's not your fault. You (or a guest) did not cause the problem, either deliberately or through carelessness or neglect. If so, you can’t pursue big stick options.
- You followed state rules regarding notifying the landlord. You have told the landlord about the problem and gave her a reasonable opportunity—or the minimum amount of notice required by state law—to get it fixed. You can’t use big stick options without taking these first steps. You’ll need to check your state’s law for the exact notification requirements for the specific option you are pursuing.
- You're paid up in rent. As a tenant, you are squeaky clean. Under most rent withholding laws you cannot withhold rent if you are behind in the rent or in violation of an important lease clause.
- You are willing to risk termination of your tenancy by an annoyed landlord. Exercising any of the rights discussed here will not endear you to your landlord. Many states forbid your landlord from retaliating against you by raising the rent or terminating your tenancy, but, unfortunately, some states don’t. If your lease is about to run out (or you’re a month-to-month tenant) and your state does not protect you from retaliatory rent increases or evictions, a complaint to health inspectors or the use of a big stick could end up causing you to lose your rental. See Landlord Retaliation for more on the subject.
- You are willing to risk eviction if a judge decides that you shouldn’t have used the big stick, and your credit report can bear this negative mark. Even if you’re sure that you were justified in using a big stick, a judge may decide otherwise. For example, if you withhold rent, the landlord may sue to evict you based on nonpayment of rent. In most states and in most situations, you’ll have a second chance to pay the balance before being evicted, but not always. For some tenants, additional negative marks on their credit records will cause extremely serious problems not only for future rentals but for loans and employment as well.
- You can find a comparable or better unit if you move out, either voluntarily or because the building is closed due to code violations you have reported. In some states, landlords whose buildings are closed due to code violations must help their tenants with relocation expenses.
Reporting Code Violations to Housing Inspectors
If the problem you’re facing is a violation of a state or local housing law, you may contact the agency in charge of enforcing the law. This may be a housing or building agency or a health or fire department. The inspector will investigate and give the landlord a notice of violation and a deadline, typically 30 to 60 days, to correct the problem. The deadline may be shortened for extremely serious violations--and in some cases, health fire, or building inspectors may actually close your building on very short notice. A landlord’s failure to abide by the correction order may result in fines and even imprisonment. Keep in mind that there is wild variation in the actual effectiveness of inspectors, depending on their workloads and budgets.
Withholding the Rent
If your landlord has not met the responsibility of keeping your unit livable, and you have met the requirements described above, you may be able to stop paying any rent to the landlord until the repairs are made. This is called rent withholding. Many states have established rent withholding, either by statute or court decision. See State Laws on Rent Withholding and Repair-and-Deduct for citation to your state rules. There are very specific requirements for withholding rent—for example, you must typically give your landlord a certain amount of time to fix the problem and you may need to put your rent in a special escrow account. See How Rent Withholding Works for details.
Making Repairs and Deducting the Cost: “Repair-and-Deduct”
Depending on where you live, you may be eligible to use another powerful legal remedy called “repair-and-deduct.” Over half the states and some large cities allow it. (See State Laws on Rent Withholding and Repair-and-Deduct.) If your state doesn’t allow repair-and-deduct, check your local housing ordinances to determine whether your city has independently adopted it. If your state or city does not have a repair-and-deduct statute, this procedure is not available to you.
It works like this: If you have tried and failed to get the landlord to fix a serious defect, you can hire a repair person to fix it or fix it yourself and subtract the cost from the following month’s rent. The statute will usually specify:
- the circumstances justifying your use of the remedy (usually only habitability problems can be addressed with repair-and-deduct)
- the amount of rent you can use for repairs (such as one month’s rent), and
- the frequency with which you can use the remedy (once in an 18-month period, for example).
The repair-and-deduct remedy is a poor choice when it comes to big- ticket projects such as a major roof repair. Obviously, if you’re limited to a twice-a-year expenditure of half your monthly rent, you are not going to be able to pay for a $20,000 roof job. However, a number of tenants might pool their dollar limits to accomplish a costly repair.
If your dwelling isn’t habitable and hasn’t been made so despite your complaints and repair requests, you also have the right to move out—either temporarily or permanently. You can also move out if the landlord has tried but failed to remedy the problem. For example, unsuccessful attempts to rid a building of vermin infestations entitle you to leave—even if the landlord has tried his best to fix the problem.
These drastic measures are justified only when there are truly serious problems, such as the lack of essential services, the total or partial destruction of the premises, or the presence of environmental health hazards such as asbestos or lead paint dust.
If you have time remaining on a lease and use this remedy improperly (for an insignificant problem, for example), you risk losing your security deposit or even being sued for the remainder of the rent due under the lease. Therefore, check your state law for details, which may include:
- whether you must first call the building inspectors
- how much time you must give your landlord to fix the problem, and
- the amount of notice, if any, you must provide before moving out.
A temporary move might be your best option. Paying for temporary lodging while the problem is fixed is cheaper for the landlord in the long run for the landlord, as opposed to losing a rent-paying tenant and rerenting a substandard place. In some states, landlords must pay for temporary housing while court-ordered repairs are made, typically when lead paint problems are being remedied.
Suing the Landlord
Except in Arkansas (where the implied warranty of habitability is not recognized on a state level), if your rental is not habitable you can sue the landlord—whether or not you move out. You can probably use small claims court, which allows claims of up to several thousand dollars. You won’t need to hire a lawyer.
Suing the landlord makes sense only if you can safely continue to live in your rental. For example, if the roof leaks only into the second bedroom and you can move the kids into the living room for a while, you might want to stay and sue in order to avoid the hassle of moving, arranging for the repair yourself (repair-and-deduct), or figuring out the complications of rent withholding. But you wouldn’t want to stay and sue if you are without heat in the winter or in danger of electrocution every time you turn on the lights.
What are the pros and cons of suing your landlord instead of using repair-and-deduct or rent withholding? On the positive side, if you lose your lawsuit you’ll have lost some time and money, but you won’t be evicted, as can happen with the unsuccessful use of repair-and-deduct or rent withholding. But suing isn’t entirely risk-free, especially if you’re a month-to-month tenant or nearing the end of a lease you would like to renew. Your annoyed landlord may simply decide to terminate or not renew. Tenants who are protected by state antiretaliation laws will have some protection, but to assert your rights you’ll have to bring a lawsuit, a dreary prospect.
In your lawsuit, you ask the judge to rule that your unrepaired rental was not worth what you’ve paid for it. You want to be paid the difference between the monthly rent and the real value of the unit, times the number of months that you’ve lived with the substandard conditions. In short, you’ll ask for a retroactive rent decrease—rent “abatement” in legalese. In addition, you can sue your landlord for lost or damaged property (for example, furniture ruined by water leaking through the roof).
In some states, you may also ask the court for an order directing the landlord to repair the defects, with rent reduced until they are fixed. In others, small claims courts can only order the landlord to pay you for your losses, but usually the money judgment gets the landlord’s attention and he makes the repairs.