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IMPLIED WARRANTY OF HABITABILITY

The basic idea behind the Implied Warranty of Habitability is that in exchange for the tenant’s promise to pay rent, the landlord promises to provide a residence fit for human habitation. This warranty or promise is said to be implied because it does not have to be in writing.

Generally, a landlord must provide a tenant with a home that is safe and sanitary, although responsibilities also exist on the tenant side. The following is a list of things that landlords usually must make available.

    Drinkable water

    Heat (in cold weather)

    Working sewer system

    Safe, working electrical system

    Working smoke detector

    A lock for your door

    A home not filled with bugs

    Safe, sanitary condition of the home structure and outside area

The landlord does not necessarily have to pay for these things however.

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Steps toward enforcing the implied warranty of habitability

The implied warranty of habitability is used as a defense, meaning that you bring it up in court after your landlord eviction has sued you for eviction. If you feel that conditions exist which affect the habitability of your apartment, you should tell your landlord about the defective condition, in writing, so that he has a reasonable opportunity to repair them. If you have notified your landlord of the defect in writing, but he has failed to make the necessary repairs, you may consider taking the following action:

    1. Cancel the lease without paying further rent, but you must vacate or leave the residence;

    2. Withhold rent until the defect is repaired;

    3. Pay only part of the rent owed;

    4. Repair the defect yourself and then deduct the cost from your rent. The cost of repairs cannot exceed the amount of monthly rent, and repairs must be necessary to make the residence habitable;

    5. Get a court order to try to make the landlord make repairs.

Of course, if you take any of the above action, your landlord may press for eviction through the courts. It is at this time that you would assert the defense of the Implied Warranty of Habitability. In pursuing any course of action however, be sure to give your landlord written notice. You should also keep records of all correspondence sent.

There is no way to determine in advance whether the court will agree that the landlord has violated the Implied Warranty of Habitability, as these issues are decided on a case-by-case basis. Some of the non-exclusive factors that will be considered by the court are the existence of housing code violations, and the nature and seriousness of defects.

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