Tenant options when landlord won’t make repairs

Rent it Right

Q: I live in a nine-unit building that has recently undergone renovations, with several units being completely upgraded. In the meantime, a leaky pipe under my kitchen sink resulted in complete rot and mildew, requiring me to remove all of the cleaning products in the cabinet and to store them in the living room. When I asked the manager to repair the subfloor and replace the cabinet, he told me that he can’t spare the workmen for this small job. What are my options? –John A.

A: Your options will depend on whether you’re dealing with a major repair problem or a minor one. The difference is in the extent of the damage and its effect on you.

In the world of landlord repairs, a major repair is one that substantially affects a rental’s systems or structural elements; or that is needed because without it, the tenant’s health and safety would be unreasonably imperiled. Cost alone is not determinative.

For example, fixing a major roof leak, replacing a heater’s nonfunctioning thermostat, and replacing a broken window or faulty front door lock are all in the "major" category because all of them have a significant effect on the tenant. By contrast, minor repairs involve less serious issues, sometimes merely cosmetic, such as repainting a faded room, replacing a stained but intact carpet, and replacing a stove whose back burner works only now and then.

In most states, tenants have effective remedies, or options, when landlords fail to make major repairs. They may break the lease and move out without liability for future rent for problems that make their unit uninhabitable; in some states, they can fix the problem themselves and deduct the cost from the rent ("repair and deduct"); and in some states, they can withhold rent pending action by the landlord ("rent withholding").

The last two remedies often come with specific requirements and steps tenants must take when invoking them; tenants should never use "repair and deduct" or "withholding" unless they are certain that the problem they’re addressing is within the class of major repairs targeted by the remedies.

The problem you describe — a cabinet ruined by a water leak — would normally be considered a minor repair, as it doesn’t affect in a serious way your ability to use your kitchen. That you’ve chosen to store your cleaning materials in the living room is your choice; presumably, you could move them to another spot in the kitchen.

Don’t be misled by the apparent unfairness of living next to spiffed-up units while you are stuck with a ruined cabinet — legally, the landlord’s recent renovation activities are irrelevant to your situation.

However, the presence of mildew might elevate this situation to one that’s more serious, deserving the landlord’s attention right now. That’s because mildew may be a health hazard, depending on the type of mold that’s present and the sensitivity of those around it. Many landlords will also sensibly deal with mildew immediately, in order to prevent further deterioration. For instance, the subfloor sits on floor joists, and if the mildew is allowed to spread to them, they too could be affected, resulting in more damage and eventual expense.

Have another talk with the manager and mention the presence of the mildew, and any effect it is having on you. Savvy landlords will do the math and realize that not only will their property repair bill be lessened if they take action now, but they may avoid a personal injury claim, too.

Q: We viewed an apartment that smelled of smoke from the previous chain-smoker tenant. We were told that the carpet would be replaced and the walls would be painted, which would take care of the smell. We trusted that the landlord would do these things and that they’d work, so we signed the lease.

But when we moved into the apartment, we discovered the smell was just as potent. The landlord told us to just air out the apartment, but that does no good. The landlord refuses to honor his promise, and we cannot live in the apartment because we get sick every time we go in there. Do you have any advice for how we might proceed? –Jordan and Sara

A: You have lots of options, depending on whether you want to walk away from this rental and lease, or attempt to hold the landlord to his promise. Let’s look at each one.

The conditions you describe — a dwelling impregnated by tobacco smoke — may be so unpleasant as to be downright unhealthy. Particles that settle out from tobacco smoke can settle into dust and onto surfaces, remaining there for some time. These particles are known as "thirdhand smoke," which (according to the American Cancer Society) can form their own cancer-causing compounds.

When a rental is seriously unhealthy, it’s "uninhabitable." This label is the death knell for a landlord’s attempt to keep you in your lease, because in virtually every state (Arkansas is the one holdout), tenants are entitled to "fit and habitable housing." When the landlord doesn’t deliver, tenants can leave without responsibility for future rent.

If this is what you want and you do walk away, you may find that the landlord will try to keep your deposit to compensate him for lost rent. To get it back, you’ll need to sue in small claims court. You’ll need evidence of the extreme nature of the smoke smell.

Gather that evidence now; do your homework so that you’ll be able to present evidence in court. While you can’t take photos of the smell, you can enlist neutral witnesses who can testify as to its pungency; and you may be able to bring in health inspectors, too.

Go online and learn all you can about the dangers of thirdhand smoke — the Mayo Clinic has something to say, as do sources interviewed in the New York Times. That article quotes a Harvard researcher as saying "breathing air in a room today where people smoked yesterday can harm the health of infants and children." You may be able to enlist local health inspectors, who would make excellent witnesses.

If, on the other hand, you want to hold the landlord to his promises, you’ll need to move in and then sue for the benefit of your bargain — a rental with cleaned walls and new carpet. Your argument is that these features were essential to your decision to rent, and that the landlord knew this. It became part of the rental contract that the landlord is not honoring.

A judge in small claims court is not likely to order the landlord to paint and recarpet. Instead, judges will give tenants damages, which in your case is a reduced rent equal to the true value of the apartment. If the judge decides it’s unlivable, its value is zero — you could end up with a judgment that tells the landlord to drop the rent to nothing. That will get his attention.

The problem with this approach is obvious and twofold: Not only must you move in at least initially, but you have only your word against the landlord’s regarding the promises to paint and replace the carpet. For these reasons, it might make better sense to look elsewhere and prepare your case for getting your deposit back.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.

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