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 or broken locks on the apartment door, 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:
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:
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.
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. 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.
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 alllow the repair-and-deduct option. 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 do the work, or fix the defect yourself, and subtract the cost from the following month’s rent. The statute will usually specify:
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 their 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, including your landlord's responsibility to rerent if you break a lease.
Bwfore moving out, be sure to check specific requirements under your state law, including:
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.
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.