Implied Warranty of Habitability Law

By law, every residential lease agreement in all 50 states contains an unstated guarantee that the house or apartment meets the basic needs and requirements for the tenant to live there. The law requires that rental spaces be safe and “fit for human habitation.”

The details of the implied warranty of habitability can vary from state to state, but in general, the implied warranty requires the following:

• All facilities were up to code when installed;
• The premises comply with all building, housing, and health codes;
• There must be functioning locks on doors and windows that open;
• Plumbing and gas facilities are in good working order;
• Electrical facilities are in good working order, including lighting and outlets;
• Where applicable, the unit has working heat and/or air conditioning;
• Appliances are installed and are in good working order;
• The premises has running hot and cold water;
• If there are common areas, they are reasonably clean and free of trash, debris, bugs, and pests;
• If needed, the landlord must use appropriate extermination techniques to free the living space of rodents or other vermin;
• There must be an appropriate number of outdoor trash receptacles; and
• The floors and stairways must be kept in good, safe working order.

What Conditions Violate the Implied Warranty of Habitability?

It is important to understand that the list provided above describes issues that are major, not minor. A defect is considered “minor” not because of the relatively low cost of repair but because it does not render the property uninhabitable.

A “major” issue is one that makes the property unlivable. If your issue is not major, note that the law gives you the right to make minor repairs yourself. This right to minor repairs is part of the implied warranty of habitability.

Examples of breaches of the implied covenant include:

• The electricity does not work;
• There is no heat and/or hot water;
• Failure to get rid of an insect or rodent infestation;
• Failure to install smoke and carbon monoxide detectors;
• The shower and/or toilet does not work;
• The landlord does not provide protection from criminals in the form of locks and window guards;
• The landlord has not kept the property up to date with developing building codes.

What Types of Leases Do the Implied Warranty of Habitability Apply To?

The warranty applies to residential leases only. By law, all landlords covenant that residential leased premises are suitable living quarters and will be sufficiently maintained for the duration of the lease.

Can the Implied Warranty of Habitability Be Waived?

No. Any attempt to cause the tenant to waive the implied warranty of habitability (through a clause in the lease, for example) is automatically invalid. This is because the implied warranty of habitability is established by law, not by contract.

What Should I Do if an Uninhabitable Condition Exists?

First, you must notify the landlord. The landlord does not have any duty to repair a problem covered by the implied warranty unless they receive written notice of the need for repair. It is essential that you provide your landlord with a written communication detailing clearly and carefully the nature of the problem.

The letter must include a reasonably thorough description of what is wrong and must give your landlord permission to enter the premises to make repairs.

Your lease might tell you how you are supposed to deliver notices. This might include:

• A specific mailing address for sending a letter;
• A specific email address to use;
• A specific phone number to use for sending a text message;
• Using an online portal of some kind (such as a drop box).

If your lease does not tell you how to deliver a notice, you can do so by mail or by whatever written method you have used to communicate with your landlord in the past.

One thing to keep in mind: it is essential that you keep a record of when the notice was delivered. If you send a letter, you should send it registered or certified mail and keep the copy of the proof of delivery. If you use email or text message, keep your original email or text message as well as any proof of receipt that your email or text company provides.

If you use a portal, it is a good idea to also send a copy through the mail to ensure that the landlord cannot claim that they did not receive the written notification.

What Can Be Done if the Landlord Does Not Repair an Uninhabitable Condition?

If your landlord does not fix the problem, you have several options:

1. Terminate the lease and move out. This can be risky – if not done properly, you could end up still owing the landlord rent for a place you have vacated. If you plan to take this step, it is essential that you contact a landlord-tenant lawyer to make sure that your termination of the lease complies with all applicable state or local regulations.
2. If the repair issue makes your residence dangerous to your health or the health of your family, you can call your local health department and/or the local government authority that enforces building codes. They will send an inspector to evaluate the situation, and if they find that the landlord is not following regulations, this office can assist you in forcing your landlord to make necessary repairs.
3. Deduct rent for repairs. Each state, city, or county has a specific method for deducting from your rent the cost of repairs you have paid for. The process for doing this can be difficult, and there are significant penalties for doing it incorrectly. Make sure you get advice from your lawyer before making this move.
4. Use the landlord’s failure to make repairs as a defense if the landlord tries to evict you. If you did not pay rent while there were habitability problems, you can defend against the eviction process by raising the warranty of habitability issues as a defense.

Damages for Breach of Warranty of Habitability

If there is a breach of the implied warranty of habitability by the landlord, you have options for recovering damages:

1. You can sue your landlord and request that the court issue an order forcing the landlord to make repairs. This order is called an injunction, and in your complaint, you will ask for injunctive relief.
2. Instead of, or in addition to, injunctive relief, you can sue your landlord for money for the damages the landlord caused you by not making the repairs. For example, if you had to go to the doctor, or if something of yours was broken or harmed, you can sue your landlord for your medical expenses or for the value of the item that was damaged.
3. If you had to hire someone to make the repairs, you can sue the landlord for what you spent to get the work done. If you are going to sue the landlord for money damages, it is very important that you can show that your expenses were caused by the landlord’s failure to make the required repairs.
4. As mentioned above, with the advice of your lawyer instructing you how to do so, you can deduct the cost of repairs from your rent.

Should I Consult a Real Estate Lawyer About My Warranty of Habitability Issue?

When dealing with implied warranty of habitability issues, it is a good idea to consult a landlord-tenant lawyer. A lawyer can do many things to help you with your case.

Your lawyer can assist you in determining whether your landlord’s misdeeds actually amount to a breach of the implied warranty, according to local law. Your lawyer can also help you draft your letter or message to the landlord so that it is sufficiently detailed concerning the problem, the length of time the problem has been in place, and other details to make sure that your communication is sufficient under the law.

You may plan to move out or deduct the cost of repairs from your rent. In that case, it is particularly important that you consult a lawyer first in order to ensure that you do not set yourself up for eviction while still owing the rent.

Your lawyer can file a lawsuit for injunctive relief and/or damages on your behalf. On the other hand, if the landlord attempts to evict you, your lawyer can use the implied warranty of habitability issues in a suit in housing court.