8 states where 'repair and deduct' could spark eviction

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Nov. 27, 2012

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Rent it Right

Janet Portman
Inman News®

Q: Our landlord has refused to fix our heater, despite our repeated requests. We'd fix it ourselves, but we can't afford it. In fact, we're down to one income and are behind in the rent. The landlord says if we fix it ourselves and deduct the cost from our rent bill, he'll evict us. Is this legal? --Dale and Candace

A: In every state but Arkansas, residential landlords are required to offer and maintain fit and habitable housing. While a handful limit the guarantee to certain types of tenancies (excluding portions of the guarantee for single-family dwellings, for example), most simply extend the warranty to all tenancies. But that doesn't mean that all tenants, at every moment, can call upon its protections.

In fact, at least eight states condition a tenant's right to get action from the landlord on the tenant not being delinquent in rent at the time the tenant gives notice to the landlord of the problem. In Delaware, Massachusetts, Missouri, Nevada, New Hampshire, Texas, West Virginia and Wyoming, tenants cannot avail themselves of some typical remedies -- withholding the rent, using "repair and deduct," or moving out without liability for rent -- unless they're current in the rent.

The policy behind this rule is pretty straightforward -- it's to discourage tenants from staying rent-free while they manufacture habitability problems and fight an eviction. Although the vast majority of tenants do not engage in such behavior, publicized stories of "tenants from hell" who manage to stay in the property while the landlord spends time and money trying to evict them have gotten legislators' attention.

You'll need to find out where your state stands on the issue, before you can confidently fix the heater and lower your rent obligation. If you live in one of the states mentioned above, your landlord may indeed have grounds to punish your exercise of a remedy that would otherwise be available to you.

Q: I've just learned that one of my tenants was arrested for assault last week. The incident took place in a city park. Can I terminate the tenancy on this basis? --Andre Z.

A: Several states have laws that allow landlords to terminate tenancies when the tenant has committed certain illegal acts. (Many states also allow for termination when there's an act of domestic violence, but that's not exactly what you're asking about.) These laws vary considerably when it comes to what kinds of acts will justify a termination, and how much proof is needed by the landlord.

It's most common for states to allow termination when the acts affect the health or safety of other residents or tenants. For example, Iowa's provision targets acts that threaten the safety of the landlord, landlord's employee, other tenants, or anyone within 1,000 feet of the property. (Iowa Code Section 562A.27A.)

But not all states are similarly limiting -- in Tennessee, for example, the landlord can terminate if the tenant "willfully or intentionally commits a violent act," no matter where it might have occurred. (Tenn. Code Section 66-28-517.)

So you'll need to check your state law to see whether it gives you the right to terminate under the circumstances. You'll also need to find out whether the tenant must be convicted of the offense first, or whether you can terminate based on the arrest alone.

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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