Maintenance & Repair
Implied Warranty of Habitability
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Members' Homepage Under Common Law a tenant takes possession of property "as is" unless the parties have contracted otherwise. However, most states have changed the rules.
"Even one who, 'with open eyes,' rents a hovel, can now sue for the Waldorf Astoria." (Indiana Court)
Under most state and local laws, rental property owners must offer and maintain housing that satisfies basic habitability requirements, such as a structurally safe premises with adequate weatherproofing, available heat, water and electricity; most times summarized as "decent, safe and sanitary.
Where state and local law does not specifically address maintenance requirements, most courts now hold that there is an "implied warranty of habitability."
What if a landlord refuses to maintain property?
Tenants' duty to maintain.
Landlord liabilities for injuries on the rental property.
Minimize financial losses and legal problems related to maintenance.
If landlords don't meet their legal responsibilities to maintain a property, a tenant usually has several options. Depending on the state, they can include: moving out, even in the middle of a lease; paying less rent; withholding the entire rent until the problem is fixed; making necessary repairs; hiring someone to make them and deducting the cost from next month's rent; or calling the local rental or building inspector, who can usually order the landlord to make repairs.
A tenant can also sue the landlord for a partial refund of past rent, and in some circumstances can sue for the discomfort, annoyance and emotional distress caused by the substandard conditions. Check your state law for the remedies available to tenants.
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All tenants have the responsibility to keep their own living quarters clean and sanitary. A landlord can usually delegate his repair and maintenance tasks to the tenant in exchange for a reduction in rent. If the tenant fails to do the job, however (or does a poor job), the landlord is not excused from his responsibility to maintain habitability.
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A landlord may be liable to the tenant--or others--for injuries caused by dangerous or defective conditions on the rental property. In order to hold the landlord responsible, however, the tenant must be able to prove the landlord's negligence by showing several things:
- the landlord had control over the problem that caused the injury
- the accident was foreseeable
- fixing the problem would not have been unreasonably expensive or difficult
- a serious injury was the probable consequence of not fixing the problem.
For example, if a tenant falls and is hurt on a broken front door step, the landlord will be liable if:
- It was the landlord's responsibility to maintain the steps (this would usually be the case, because the steps are part of the common area, which is the landlord's responsibility).
- The tenant could prove that an accident was foreseeable (falling on a broken step is highly likely).
- The tenant could show that the repair was relatively easy or inexpensive.
- The tenant can prove that the probable result of a broken step is a serious injury (a fall certainly qualifies).
A tenant can file a personal injury lawsuit for medical bills, lost earnings, pain and other physical suffering, permanent physical disability and disfigurement and emotional distress. A tenant can also sue for property damage that results from faulty or unsafe conditions.
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Landlords who offer and maintain housing in excellent condition can avoid many problems.
Here's how:
- Set out clear responsibilities for repair and maintenance in the lease or rental agreement.
- Use a written checklist to inspect the premises and fix any problems before new tenants move in.
- Encourage tenants to immediately report plumbing, heating, weatherproofing or other defects or safety or security problems--whether in the tenant's unit or in common areas such as hallways and parking garages.
- Keep a written log of all tenant complaints and repair requests with details as to how and when problems were fixed.
- Handle urgent repairs as soon as possible. Take care of major inconveniences, such as a plumbing or heating problem, within 24 hours. For minor problems, respond in 48 hours. Always keep tenants informed as to when and how the repairs will be made, and the reasons for any delays.
- At lease twice a year, give tenants a checklist on which to report potential safety hazards or maintenance problems that might have been overlooked. Use the same checklist to inspect all rental units once a year.
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