Understanding the Landlord Tenant Relationship: Part 2—Habitability

Continuing with our three part series, Understanding the Landlord Tenant Relationship, The Law Insider takes a look at the issue of habitability.  Habitability concerns the physical conditions of a leased property.  Though there may be some issues concerning ability to use the property in commercial leases, generally, habitability concerns residential property.  If the landlord fails to maintain habitable premises, the tenant has some options.

Habitability is one of the implied warranties in a lease agreement.  That is, the oral or written agreement creating the lease need not specifically address the issue.  Habitability is guaranteed by the nature of the relationship and subject of the contract—real property.  An endless array of problems could arise that limit the habitability of a property, in whole or partially.  An extreme example may be that part of the dwelling burns, leaving only part or none of the home safe for use.  More common examples are lack of heat, vermin infestation, mold, and security problems such as drug dealing neighbors.  The exact standards for habitability are set forth in state statutes and case law.  However, in all jurisdictions the general rule can be stated as: the home must be safe for humans to live in and must comply with state and local building codes.


What happens if your rental property violates the warranty of habitability?  The tenant has a few options.  First, the tenant must make the landlord aware of the problem and allow a reasonable amount of time for repair.  The “reasonable amount of time” depends on the nature of the problem.  Only after the landlord fails to remedy the problem may the tenant withhold rent in proportion to the problem.  For example, if only one room becomes uninhabitable, the entire rent should not be withheld.  However, tenants should be cautious when withholding rent.  Unless the landlord has agreed to abate a portion of the rent or a court agrees with the tenant, the tenant may be charged for the rent.  Some jurisdictions require any withheld rent to be held in escrow, in case the tenant loses the dispute.  In extreme cases, such as when the property is entirely uninhabitable, the tenant may be freed from the lease.

As with most issues in the landlord tenant relationship, communication and cooperation by both parties is key.  A tenant’s failure to complain about the need for repairs will limit his rights.  Likewise, a landlord who fails to timely respond and make necessary repairs erodes his right to enforce the lease.  Thus, landlords and tenants should keep an open dialogue as problems arise and are resolved.

Some jurisdictions offer generous self-help resources for tenant’s who experience difficulty with inattentive landlords.  For example, the California Department of Consumer Affairs has a landlord/tenant division.  The New York Attorney General’s Office offers extensive information for New York tenant’s, and assistance can also be found through the New York State Division of Housing and Community Renewal.  Check the web for resources specific to your jurisdiction.  Don’t sit around in a slum, hating your landlord.  You have rights.

Next up and the last installment of The Law Insider’s three part series on Understanding the Landlord Tenant Relationship: Evictions.