Real Estate FAQ

Does a Landlord Have the Duty to Keep Residential Premises in a Reasonable Condition?

All residential landlords must provide safe premises with all features and services vital to modern human habitation. An experienced real estate lawyer can educate a lessor about his or her duty to provide a secure and sanitary place for tenants to live. Likewise, if a tenant is uncomfortable with the conditions of rented premises, legal advice from a skilled real estate attorney can answer questions about what standard of living the landlord must provide.

History

Our property laws have their roots in feudal England, when landowners leased rural plots of land with small structures to those willing to farm. The emphasis was on the fertile land and not the structures. Tenants rented property at their own risk, or caveat emptor, meaning they had no choice but to live in the buildings in the condition in which they found them.

Industrialized society changed the nature of leased premises. Slum landlords bought up large numbers of urban residential properties and allowed lessees to live in deplorable conditions. Land was no longer part of the picture. Tenants could not easily identify problems before moving in and were almost powerless to influence landlords to make needed repairs. Over time, judges did away with caveat emptor and created an implied duty on the part of lessors to provide safe, secure and habitable living quarters.

Implied Warranty

Today, in practically every state, an implied warranty of habitability is a part of every written or oral lease. Depending on the state, the warranty is either based in statute or judge-made law, or both. The warranty requires a lessor to lease a residential unit in a safe physical condition without latent defects, meeting all basic human needs throughout the term of the lease. The landlord must disclose known dangers, but sharing that knowledge does not relieve him or her from the duty to provide habitable premises. A landlord is strictly liable for breach of the warranty; whether he or she acted in good or bad faith is irrelevant.

The warranty does not mean that the leased premises need to be ideal, faultless or even tastefully decorated. It requires a basic standard of livability.

Examples of Breach

The warranty requires that premises not be hazardous to health or safety. The defect must be substantial, not trivial or just inconvenient. The following conditions are often a breach of the warranty:

  • Carbon monoxide or other gas leaks
  • Serious plumbing or electrical problems
  • Water damage or flooding
  • Unsound roofs
  • Unreliable furnaces or hot-water heaters
  • Lead paint, unless legally sufficient warning is given
  • Substantial insect or rodent infestations
  • Unstable structure
  • Unreasonable noise
  • Excessive or dangerous renovation or construction
  • Unsanitary conditions
  • Fire safety issues
  • Unsafe ventilation
  • Inadequate security or locks
  • Mold, dust or other environmental contamination
  • Dangerous steps or railings
  • Faulty windows
  • Loose plaster

Factors

Each situation's unique facts must be evaluated under the law of the jurisdiction, but normally the question is whether a reasonable person would consider the premises habitable. The following are considered relevant, but not controlling, by courts:

  • Housing-code violations
  • Nature, seriousness and age of problem and premises
  • Contribution by tenant to the condition
  • Rent amount
  • Location
  • Landlord knowledge

Legal Remedies

For the landlord to be liable, the tenant must provide notice and give the landlord reasonable time to fix the problem. If the landlord fails to do so, he or she breaches the warranty.

Usually, the tenant has these options:

  • Bring a lawsuit for damages, which, depending on the jurisdiction, might include a rent refund, repair reimbursement, compensation for personal injury and emotional distress, punitive damages, and termination of the lease
  • Withhold rent and use the breach of warranty as a defense to nonpayment
  • Make repairs and subtract the cost from the rent
  • Move out (constructive eviction), stop paying rent and use the breach of warranty as a defense to nonpayment
  • Use other remedies available under the lease
Before taking any of these actions, a tenant should consult an attorney. Some jurisdictions have specific procedures, such as requiring that withheld rent be deposited into escrow or with the court.

Conclusion

Landlords and tenants should each inspect leased premises regularly, retaining a professional inspector if prudent. Problems and repairs should be carefully documented with photos and in writing. Tenants should report problems without delay and landlords should make prompt repairs. Either party to a lease can benefit from the advice and guidance of a reliable real estate lawyer on rights and responsibilities vis-à-vis the premises under applicable law.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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