Understanding the "Warranty of Habitability"

In a pricy rental market, you may have to take what you can afford. However, even the cheapest rental properties have to meet certain standards. They have to be livable and provide for basic needs. If your property isn’t in good enough condition to be habitable, your landlord has to make repairs.

Some landlords try to get away with doing as little as possible to their rental units. If the property isn’t up to the local housing code, you may be able to withhold rent until the landlord makes the necessary repairs.

Landlord-tenant laws can depend on where you live. Talk to a landlord-tenant lawyer for legal advice about your situation.

What Is a Warranty of Habitability?

In most states, residential leases include an implied warranty of habitability. This warranty doesn’t have to be in writing and is automatically presumed. Your landlord cannot force you to give up your right to this warranty.

Habitability means that the property is in a livable condition. This can depend on the local zoning laws and building codes. For example, under California Civil Code, habitable dwellings must include:

• Waterproofing and unbroken windows and doors
• Plumbing or gas facilities in good working order
• Water supply with cold and hot water and connected sewage disposal
• Heating
• Electrical lighting
• Common areas free of rubbish, vermin, and rodent infestations
• Adequate trash receptacles
• Floors, stairways, and railings in good repair

Depending on state and local laws, habitability in real estate may also include carbon monoxide detectors, air conditioning, and smoke detectors.

A minor issue may not be enough to justify withholding rent. For example, if an electric outlet is broken, that may not be considered a breach of the warranty of habitability. However, if all of the electrical outlets are not working, the property may be unhabitable.

What Should You Do if the Property Isn’t Habitable?

If your living space isn’t safe for human habitation, report it to your landlord immediately. Your landlord may be able to make the repairs quickly so you can stay in the rental safely. Generally, landlords have to make repairs in a reasonable time.

You should report it in writing or by email so that you have a copy and evidence that you notified the landlord. Take pictures or videos of the problem to show that the property is not livable.

What Are Your Landlord’s Responsibilities?

Your landlord has a responsibility to ensure the property is habitable. Even if the implied warranty is not written in the lease agreement, landlords are still responsible for following local housing and building codes. If your landlord doesn’t fix the problems, they are in breach of the warranty of habitability.

If you report housing code violations, your landlord cannot evict you to punish you for asserting your legal tenant’s rights. Talk to a landlord-tenant lawyer if your landlord sends an eviction notice after reporting lead paint, water damage, or other housing code violations.

What Are Your Legal Tenant’s Rights?

As the tenant, you have the right to an implied warranty of habitability. If you report the problem and your landlord doesn’t fix it, you may have several options. You may be able to withhold rent money for the unlivable portions of the property. However, you may want to ask an attorney for help before withholding rent. Your landlord may try to evict you for non-payment of rent.

You may be able to file a case in small claims court to get money back for rent you already paid. This can help you get a portion of the rent as compensation for living in a non-habitable rental property.

You can also report the living conditions to your local housing agency. An inspector may investigate the complaint and identify any housing code violations. If the landlord doesn’t fix the deficiencies, the housing agency may assess fines or other penalties. If your landlord tries to evict you, the breach of the warranty of habitability can be a defense. If your landlord is violating your tenant’s rights by not fixing a dangerous or unsanitary property, talk to an attorney. A local landlord-tenant lawyer can explain your legal options as a renter.