My Tenant is a Week Late
Question
I have a problem tenant who, in response to my demanding payment of rent that is now a week late, has threatened to report me for failing to maintain their rental unit in habitable condition. I know of no problem that makes their unit uninhabitable. What should I do?
Answer
The first thing you must do is research the laws of your state and municipality regarding the items that are related to the issue of habitability. In general, the requirements for a rental being considered habitable vary among states. A state’s requirements may be more or less comprehensive than the requirements for rental housing that might be affected by HUD requirements that apply to Section 8 or other federal subsidized housing. Rules of the most comprehensive jurisdiction must be of concern.
Many states have one or more statutes related to the habitability issue. However, in most states courts have developed the legal doctrine of an implied warranty of habitability.
The implied warranty of habitability is a legal doctrine in most states that requires landlords to offer and maintain leased premises in a safe and sanitary condition fit for human habitation for the duration of the lease.
In the past landlords were only required to deliver possession of the premises to the tenant in return for the tenant paying rent. However courts began to uphold that the lease by its nature was a contract and was controlled by principals of contract law. The lease contained mutual dependent warranties – the tenant’s promise to pay rent and the landlord’s imposed obligation to provide habitable premises. A material breach of obligations by either party relieves the other party from his obligation as long as the breach continues. If the landlord causes a material breach of the warranty the tenant may be entitled to such remedies as damages, lease termination, rent abatement, or repair and deduct expenses. The landlord’s obligations do not extend to breakages, malfunctions, or other conditions which do not materially affect the health and safety of the tenant nor is the landlord held to correct conditions caused by misuse or inappropriate use of the premises by the tenant, the tenant’s family or invited guests.
States that have adopted the implied warranty of habitability through statute or judicial law have used one of two approaches as the source to determine habitability requirements. One approach uses local building codes which have specific minimum requirements for essential services such as water, plumbing, and heat. The other approach uses common law definitions of habitable housing conditions.
An important point for landlords is to understand the source of their state’s requirements (building codes or common law) since the source of the warranty controls the landlord’s responsibilities and tenant’s remedies. States that use building codes as the source of warranty make it easier for compliance because they have detailed specific requirements for repair and maintenance responsibilities. In states that use common law definitions for habitability, implied warranty is independent of building codes and may be more difficult to satisfy requirements. Landlords may be responsible for repairs and maintenance under building codes and responsible for repairs and maintenance under the common law approach. Landlords may thus be held to more responsibilities for habitability in those states that use common law definitions for warranty of habitability.
For most states, basic requirements for habitable housing include:
- Maintenance of systems for electrical, plumbing, heating and/or cooling, ventilating, sewage and sanitation
- Supplying potable water and hot water
- Providing for trash collection and removal
- Maintenance of common use areas
The landlord is advised to check for state and regional variations that may impose additional requirements to ensure habitable conditions. Requirements could include weather-proofing protection against heat, cold, and water conditions, severe weather, and pest extermination.
In addition to obtaining information regarding habitability for the location of your rentals, discussion related to habitability and significantly more complete lists of items that should be repaired and maintained and which must be of concern for federal subsidized housing, visit the HUD website at hud.gov.
If the tenants have ever reported issues potentially related to habitability, you should have dealt with the issues as soon as possible after receiving the report and generated documentation for your records. If the tenants now report issues, you should generate related documentation and take care of them immediately. If you think that the tenants don’t really have legitimate habitability complaints, you should serve them with a “pay or quit” notice.
If the tenants breaks their lease using non-habitability the reason, what you can do or must do depends on the facts of the entire matter, including the written correspondence and other records you maintained and perhaps how much the tenants might wish to move for unrelated reasons.