Rental tenants have an absolute right to a habitable home

By Broderick Perkins
DeadlineNews.Com

WHEN Kansas City landlords allow apartments to deteriorate, the city can opt to send property owners to landlord school for lessons in landlord/tenant law and to face panels of irate tenants relating the horrors of slum life.

New laws allow the city of Norfolk, VA to seize uninhabitable rental properties and resell them to responsible owners.

For the first time in San Jose, CA, a judge recently ordered a landlady shackled with an electronic monitoring bracelet, billed for its use and imprisoned for 60 days in one of her run-down $1,100 a month apartments infested with cockroaches.

In addition to fines of more than $15,000, including a $2,600 restitution to tenants, she must also foot the $100-a-day bill to relocate the tenants to a residential hotel until the apartment is habitable.

Every rental tenant has an absolute right to a habitable home.

Landlords must comply with that right, and if they don't tenants have some powerful options. Most states have enacted housing, health and safety codes that specify what a tenant can expect and what burden the landlord must bear to live up to what's called the "implied warranty of habitability," but since 1970, the warranty is universally implied in every U.S. residential rental agreement -- even if your lease says otherwise.

Any residential lease or rental agreement that attempts to negate the implied rule or put responsibility for habitability on the tenant, is an illegal and unenforceable contract.

"The warranty of habitability means the property does not pose a danger to the life, health or safety of the tenant," says New York City real estate attorney Gary J. Wachtel. Landlords' responsibilities

Wachtel, a landlord-tenant litigation specialist, says that typically means the landlord is responsible for providing and maintaining running hot and cold water, heat, plumbing, adequate lighting, a structurally sound building, a dwelling that is free from rodent or insect infestations, and clean and safe common areas, garbage facilities, lobbies, elevators, meeting rooms.

A landlord is both legally obligated to maintain habitable quarters and financially responsible for the expense of keeping the place livable, but that typically does not apply to amenities and finishes such as aging paint, drapes, carpets and old appliances that don't pose a threat to habitability.

"While it makes good business sense to do so, landlords are not required to maintain the quality of their buildings or the services and amenities offered beyond those required to meet habitability standards," says Terry Feinberg, a Silicon Valley-based rental housing consultant.

Tenants' responsibilities

The implied warranty, however, does not absolve tenants of responsibility. To the contrary, tenants are responsible for maintaining a clean, safe and healthy home by removing garbage, rubbish and waste and by keeping plumbing fixtures and other areas clean and free of contaminants, corrosion, mold, mildew and other harmful elements, says Janet Portman, attorney and publisher with legal self-help publisher Nolo.com in Berkeley, CA.

While the landlord must see to it that the rental home is fit, he or she does have a right to bill tenants for the work if tenants cause damage that results in a loss of habitability -- say, by breaking a window in the dead of winter, or worse, removing a load-bearing wall to create a more aesthetically pleasing home.

Also, to invoke the warranty, tenants have an obligation to inform the landlord, in writing, of any lapses in habitability, due to, say plumbing leaks, a malfunctioning heater, or the appearance of rodent droppings.

"To get reimbursed for repairs to your rented or leased home you need one of two things. You need notice to the landlord or you need an emergency," says Sacramento attorney Michel James Bryant, author of "The Legal Edge For Homeowners, Buyers & Renters" (Renaissance Books, $15.95).

Enforcement options, limits

Landlords who don't act within a reasonable period, as defined by local law, are subject to tenants in most states withholding rent or footing the bill for the work and then deducting the amount from the rent, says Portman, co-author of "Every Landlords Legal Guide," (Nolo.com, $44.95) and a similar tome for tenants.

"That doesn't mean you can re-roof the entire complex because you have leak," says Wachtel.

Portman says, in every state, tenants also can call the housing or building inspector and sue the landlord in Small Claims Court if the rental unit does not conform to local housing codes.

The right of habitability does not extend to personal possessions.

"If a tenant's possession are damaged, say by fire, the landlord is not responsible. Renters are therefore strongly advised to buy renter's insurance," says Feinberg.