Q: We’re renting a single-family home from a landlord who refuses to do basic repairs. When the hot water heater broke and the roof began to leak, we were forced to repair them ourselves and deduct the cost from the rent (our state law lets us do this). After getting a pay-or-quit notice, we did a little homework and discovered that the home never had a certificate of occupancy. What effect will this have on the landlord’s attempt to evict us? –Jim and Janelle J.

A: It sounds like you’re preparing to defend yourself against an eviction lawsuit. To win, you’ll need to convince the judge or jury that you properly used your state’s "repair and deduct" procedure, in which tenants pay for repairs and deduct the cost from the rent. Most states that allow tenants to use this remedy set specific guidelines. Typically, the repairs must be for problems that make the rental unsafe or unfit for habitation; the tenants must have given the landlord notice of the problem and a reasonable time to make the repair (some states set specific waiting periods); and sometimes tenants may not use the remedy more than a certain number of times within a specified time period. States often limit the amount of money tenants can spend, figured either as a portion of the rent or a stated amount.

If you used your state’s repair-and-deduct statute correctly and gave your landlord a short rent check to reflect the cost of repairs, you should survive the attempt to evict you for nonpayment of rent. But what about that missing certificate of occupancy? Certificates of occupancy are required because building inspectors want to make sure that a structure intended for habitation is fit, at least initially. For this reason, it’s typically illegal for an owner to rent out a home without first obtaining the certificate. When owners bypass the certificate requirement, the occupancy becomes unlawful and the lease an unlawful and unenforceable contract. This may mean that although you may win the eviction lawsuit, your lease will be declared null and void by the judge, who now knows that the occupancy is unlawful. The landlord will need to get the place inspected and it will have to conform to any standards it may not meet. Then, you’ll need a new lease. Hopefully, your state gives you anti-retaliation protection, which should protect you if the landlord, with certificate in hand, decides he doesn’t want to bother with such well-informed tenants.

Let’s imagine what might happen if you did not use your state’s repair-and-deduct procedure correctly. Here, your landlord’s failure to obtain an occupancy certificate will come to your aid. You may lose the eviction lawsuit and have to move, but the judge could refuse to order you to pay the back rent (the sum you deducted from the rent, representing what you spent on repairs). When the lease itself is illegal, a judge can refuse to enforce it at all, including the amount due in rent.

Q: We moved into our apartment complex 15 years ago. One of the reasons we chose this one was that it did not allow dogs. Recently we became aware that several buildings in the complex were designated for rental to tenants with dogs. A dog run was created practically under our balcony. Now I’ve learned that the entire complex (about 700 apartments) is open to dog owners. We tenants were never notified about the change in policy. Do we have any recourse other than to move to another community? –Frances B.

A: When landlords advertise certain amenities or policies, and particularly when these ads become promises in their leases, they are legally bound to follow through during the life of the lease. For example, an ad that promises "We pay gas and electric!" will be binding on the landlord during the lease (or, if the tenancy is month-to-month, until the landlord gives proper notice changing this policy). This is true even if the promise isn’t in the rental document — it’s enough if the promise is prominent, of real value, and likely to have been relied upon by prospective tenants.

Your landlord’s no-dogs policy may well have qualified as a binding promise when you moved in, and if you signed successive leases over the years, it could have continued to be a major reason why you decided to continue to rent there. But landlords may change policies, at lease-renewal time and with proper notice given to monthly tenants. And here is where things get tricky when dealing with a multifamily rental. A landlord who wants to begin allowing dogs, but has a building full of tenants enjoying the explicit or implied promise that no dogs will be seen, will have to systematically withdraw the no-dogs policy in current tenants’ leases (at lease renewal time) or in month-to-month rental agreements (with proper notice) until all current residents are renting with the understanding that dogs may be brought into the building. Only then can the landlord properly rent to new (or even current) residents who want dogs.

It doesn’t sound as if your landlord took this systematic approach. Management probably figured that a mere "no dogs" policy wasn’t worthy of the benefit of proper notice. Had you confronted management early on with its misapprehension, you might have been able to at least delay the inevitable appearance of dog-toting tenants (that is, until the renewal date of the most recently signed "no dogs" lease). But perhaps you can still salvage part of the complex as dog-free, at least for a while. If you can, gather similar no-dogs tenants who live nearby and ask for a meeting with management. The prospect of an en masse move-out by a substantial group of long-term tenants may spur them to compromise. As for the dog run below your balcony, that is a major annoyance and will be so even to the most dog-friendly occupant. You’re within your rights to ask that it be moved.

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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