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When Are Landlords Liable for Injury?

What if a Landlord Fails to Maintain Habitable and Nuisance Free Properties?

When landlords fail to maintain habitable and nuisance-free rental properties and fail to remedy serious issues raised by residents, several consequences may follow. However, for you to be held legally liable and for residents to have a right to take recourse, the following five conditions must be met:

  • The issue makes the resident’s premise uninhabitable or a significant threat to the resident’s life, health, or safety.

  • The resident notified you of the issue.

  • Neither the resident nor the resident’s guest, child, or pet caused the damage. (If one of them caused the damage, then the resident is responsible for fixing it or paying for it to be fixed.)

  • The resident gave you or your agent access to the premises to perform the repair. Residents can’t demand that you repair damages if they substantially interfere with your ability to perform the repair, such as preventing an electrician from entering the unit to fix faulty wiring.

  • You failed to remedy the situation in a reasonable amount of time. (What’s reasonable varies according to several factors, including how the residents are affected and the state and local statutes, but two to four weeks are typical. Of course, if the heating goes out in the middle of a frigid winter day, reasonable may mean immediate attention is required.)

Generally, residents have the legal right to take any of the following actions:

  • Withhold or escrow some or all rent until the repair is made. In some areas, residents must obtain permission from the courts to withhold or escrow rent, and the amount withheld may be limited.

  • Hire an outside contractor to make the repair and deduct the costs from future rent payment(s). Residents should only use qualified and licensed personnel plus provide copies of any bids or estimates and written proof of payment for a reasonable amount to complete the work.

  • Personally repair and deduct the repair costs from future rent payments. Residents shouldn’t attempt to do the work themselves (or a relative or friend) unless they’re qualified and properly licensed, if required, to do the specific work needed.

  • Sue for damages from the date of the landlord’s knowledge of the breach of the warranty of habitability. The measure of damages is generally the difference between the value of the rented premises in its uninhabitable condition and its fair market rental value.

  • Sue to force the landlord to make repairs by obtaining a court order requiring the landlord to make the repairs. Note, however, that courts are unlikely to use this option because it involves costly court supervision. A variation of this remedy allows the landlord and resident to agree that the resident may repair the damage and subtract the cost of repairs from future rent payments.

  • Move out and terminate the lease. If the premises are truly uninhabitable, the resident has the right to move out temporarily or permanently based on the grounds of constructive eviction — by failing to provide residents with a habitable dwelling, you evicted them, breaking the rental agreement. Furthermore, the resident may sue for money damages for the landlord’s breaking the lease and may recover for emotional and physical stress.

One of the rarely mentioned costs of a landlord’s failure to provide habitable housing is a decline in occupancy. As residents move out in response to substandard living conditions, occupancy and revenue from rent payments drop. Keeping your rental units and common areas in good repair is a good business decision.

Residents in properties regulated by the New York City Housing Authority (NYCHA) may make a claim for breach of the warranty of habitability even if they fail to serve a notice of claim on the NYCHA before raising the claim, as long as they seek only a rent set off and not a money judgment.

Residents who want a money judgment from the NYCHA must serve the city with a notice of claim for damages.

If the failure to provide habitable living conditions violates state or local building or health codes and inspectors verify the violation, they may require you to fix the problem and pay additional fines or penalties.

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