Warrant of Habitability

What Are the Landlord’s Duties to a Tenant?

Your landlord must provide a safe and sanitary place to live when they accepts rent from you. In other words, it must be “habitable.” If the unit is not habitable when you move in, your landlord must make all needed repairs as long as they charge you rent. This is called the“implied warranty of habitability.” The landlord cannot legally terminate your tenancy because you complain that they have not provided habitable premises.

What Are My Duties as a Tenant?

As a tenant, you have a duty to keep the place clean and sanitary, remove trash, properly use plumbing, gas, and electrical systems, neither destroy nor vandalize the premises nor allow a guest to do so, and to use the housing as your living quarters (the purpose for which they were designed).

What Is a Habitable Place?

A “habitable place” need not be nice looking or comfortable. However, it must be substantially in compliance with the building code and has to provide the “bare living requirements.” For example, the law does not require your landlord to paint your home every year or to give you new drapes or rugs. A place is “habitable” if it has the following:

  • Working plumbing and heating
  • Hot and cold running water
  • Electricity and lights that work and are safe (no exposed wiring)
  • Roof, walls and windows that do not leak and are not broken
  • Clean common areas, free from trash and debris
  • Enough trash cans to keep trash from overflowing
  • Safe floors, stairs and rails

What Should You Do if Your Place Is Not Habitable?

Notify the landlord or their agent in writing about the problems that exist. This notice should be given as soon as possible after discovering the uninhabitable conditions. Ask your landlord to make all needed repairs. You should state a specific reasonable deadline for the repairs to be made. A reasonable amount of time would depend on the severity of the problem. Keep a copy of this letter for your records. Take pictures of all the problems, date the pictures and keep them in case you need to go to court. You should also call the local code enforcement agency to inspect your home. The inspector will send your landlord a written report of any sub-standard living conditions found in your unit. You must allow your landlord or his/her repairman access to your unit during normal business hours to fix all the problems that exist.

What if Your Landlord Does Not Make the Repairs?

If your landlord does not make the repairs, you can do one of the following:

  • Move out and sue your landlord in Small Claims Court for damages to you, your family, or to your property due to your landlord’s breach of the “implied warranty of habitability” if the total is less than $10,000. For damages which exceed $10,000, sue in Superior Court
  • Remain and pay full rent; sue your landlord for breach of the “implied warranty of habitability” in Small Claims Court for damages up to $10,000 or in Superior Court which exceed $10,000
  • Remain and pay rent, sue in Small Claims Court for a repair order. Do this only if your code enforcement agency ordered your landlord to make the repairs and she/he has not done so for 60 days. The court can order him/her to make repairs and stop all rent payments
  • Make the repairs yourself and deduct the amount from the rent. You have to give written notice first AND save receipts. The cost of repairs must be less than one month’s rent. This remedy is risky so consult an attorney to be sure to follow the proper procedure
  • Withhold your entire rent and set it aside in a bank or trust account. This is the most severe and risky option, and it may result in you being evicted if done improperly. Before doing this, consult an attorney to be sure this is the right thing to do and that you use the proper procedure.

What if I Want to Withhold My Rent?

If you consult with an attorney and decide to withhold all rent because your landlord has not made necessary repairs in your unit, the landlord may try to evict you for failure to pay rent. The landlord will give you a notice to pay your rent in 3 days or leave. If you do not pay or leave at this time, the landlord will file an “Unlawful Detainer” Complaint (an eviction lawsuit) with the court and serve you.

You must file your “Answer” in court within 5 calendar days of receiving the “Complaint”. In your defense you will state that the fair rental value of the premises is too high because your landlord breached the “implied warranty of habitability”. You can also request an order that the landlord make repairs, that your rent be reduced until they are done, and that the court monitor the case until that time. You will need proof that there was a problem and that your landlord was aware of it. (You may also sue in separate lawsuits). Be sure to set aside your rent money so you will have it to pay later. If you win, the court will subtract from the full rent the value of the bare living requirements that were lacking. You only have to pay the remainder, and you will be able to stay in the premises.

This is general information on the law, which may change. For specific legal problems, you should consult with a lawyer.