How to Take Action Against Lease Violations

If you rent property and your landlord violates the lease agreement or the implied warranty of habitability, you can take various actions to correct those violations. If you want to stay out of court you can use the repair and deduct, abandonment, or rent withholding remedies. However, if these remedies are unavailable or inadequate, you can always file a lawsuit against your landlord for breach of contract. On the other side, if you are a landlord concerned about a tenant's possible breach, you can Take Action Against Real Property Lease Violations in other ways.

Part 1

Part 1 of 5:

Using the "Repair and Deduct" Remedy

1
Determine when you can use this remedy. The repair and deduct remedy allows you to deduct money from the rent, up to a certain limit, in order to make repairs in the rental unit. You can only use this remedy when there has been a substantial violation of the implied warranty of habitability. Examples of substantial violations might include a leak in the roof during rainy season, no heat during the winter, or no hot running water.
- This remedy has certain legal technicalities that can make it difficult to put into action. Therefore, if possible, you should speak with a landlord-tenant lawyer or another professional to make sure you are proceeding correctly.
- In addition, some states, for example Indiana, do not allow this remedy.^{[1]XResearch source} Make sure your state allows this remedy before you proceed.
2
Assess how the defects were caused. Before using the repair and deduct remedy, you must make sure the defects to your rental unit were caused by the landlord and not by you, your family, guests, or pets. Remember, while the landlord must maintain your unit in a livable condition, you must work with them and hold up your end of the agreement. If the defect was caused by something you should or should not have done, you will not be able to use this remedy. However, if the defects were caused by your landlord, this remedy may be a good option for you.
- For example, if, when you moved in to your unit, the bathroom did not include a shower or toilet, the defects were clearly caused by your landlord in breach of the implied warranty of habitability. However, if the defect was caused when you tried to use your bedroom as a kitchen, you may not be able to take legal action against your landlord.
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3
Analyze the seriousness of the defects. In order to properly use the repair and deduct remedy, the defects in your unit must be serious enough to affect your health and safety. Different states will analyze this requirement differently, so make sure you get help if you need it. If you have a major defect, you will usually be able to use this remedy. However, if the defect is only minor, you may not be able to repair and deduct.
- Examples of major defects include a broken hot water heater, a front door that will not lock, a toilet that will not flush, a broken heater during the winter, or a unit filled with deteriorating lead paint.
- Examples of minor defects include a leak that causes a small stain in the ceiling, a furnace that makes noise when it runs, a screen door with a broken latch, a lobby that needs to be vacuumed, a broken heater during the summer, or an apartment with faded paint.^{[2]XResearch source}
4
Calculate the cost of the needed repairs. If you are going to repair the defect yourself and deduct the cost from your rent, the repairs cannot cost more than one month's rent. Therefore, calculate how much it will cost to make the repairs before you get them done. If the repairs will cost more than one month's rent, do not use this remedy.
- For example, assume you pay $1,400 in rent each month and your hot water heater is completely broken. When you call a repair person, they give you a $1,500 estimate to fix it. In this instance, you should not use the repair and deduct remedy because you will only be able to deduct $1,400 for the repairs. You will end up paying $100 out-of-pocket.
5
Inform your landlord of the needed repairs. Before you make the repairs yourself and deduct the costs from your rent payment, you must notify your landlord of your intentions to use the repair and deduct remedy and give them an opportunity to fix the problem. Whenever you give notice to your landlord, it should be in writing. The letter should contain a detailed description of the defect and the repairs that are required. Make sure you sign and date the letter and keep a copy for your own records.
- Send the completed letter to your landlord through the mail or deliver a copy to them in person.
- When you deliver the notice to your landlord, request a signed receipt as proof they received it.
Once your landlord has been notified of the serious defect, they must have some time to fix the problem. The amount of time you need to give your landlord will depend on the seriousness of the problem. In most states, 30 days is considered a reasonable amount of time. However, if the defect is serious (e.g., a broken heater in the middle of winter), a couple of days may be considered reasonable.
7
Make the needed repairs. If the landlord fails to make the required repairs within a reasonable time, you may make the repairs yourself or hire someone to make them for you. Once the repairs are completed and it is time to pay rent, you can deduct the cost of the repairs from your rent payment. Keep all the receipts as evidence of the repair costs. It is also a good idea to include a letter with your rent check that explains why money has been deducted from your normal rent payment.
- For example, assume you have a serious defect in your rental unit that was caused by your landlord. You gave your landlord notice of the defects and a reasonable time to fix them. Your monthly rent is $600 per month and the repairs will cost $250. When your landlord fails to fix the defects in a timely manner, you hire someone to fix them and pay them $250 for their work. When rent is due, you will be able to deduct $250 from your normal monthly payment. Therefore, you will only pay $350 that month instead of your normal $600.
8
Understand the risks of using this remedy. You should not use the repair and deduct remedy if you are unsure about whether you meet any of the requirements. For example, the defects may not be serious enough to allow you to use this remedy or you may have inadvertently caused the defect yourself. In these circumstances, if you use the repair and deduct remedy, your landlord may sue you to recover the money deducted from your rent. In addition, your landlord may file an action to evict you based on nonpayment of rent.
- Also, be aware that you can only use this remedy twice in any 12 month period.
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Part 2

Part 2 of 5:

Abandoning the Unit

1
Assess the defects carefully. If the defects in your rental unit cost more than one month's rent, or if you simply cannot handle the time and hassle of making repairs (especially if you are having to do this often), you might choose to abandon the rental unit instead of repairing and deducting. When you abandon the rental unit, you move out. In order to use the abandonment remedy, the defects in you unit must be so serious that they substantially affect your health and safety (i.e., the landlord violated the implied warranty of habitability).
- Similarly to the repair and deduct remedy, you must be able to distinguish between major and minor defects. If your defect is major, you will most likely be allowed to use this remedy. However, if the defect is only minor, you may not be able to abandon the property.
2
Keep a record of the defects. Before moving out, you need to keep a detailed record of the defects giving rise to the lease violation. This is important because you will have to give notice to your landlord and because you need to make sure the defects were not caused by you. Remember, if the defects were caused by you, your family, your guests, or your pets, you will not be able to take action for lease violations.
- When you keep a record of the defects, take pictures, write down notes, and keep track of other important information so you have it when you inform your landlord. You might even have an inspection of the property done to evidence the seriousness of the defects.
3
Inform your landlord of the needed repairs. Before you abandon the rental property, you must notify your landlord of the defects and give them an opportunity to fix the problems. When you give notice to your landlord, do it in writing. The letter needs to contain a description of the defects and the repairs that are required. When you are finished writing the letter, sign and date it. Keep a copy of the letter for your own records.
- Send the completed notice to your landlord or deliver a copy to them in person.
- When you deliver the notice, make sure your landlord gives you a signed receipt as proof that they received it.
- Allow your landlord an opportunity to fix the defects. Before you can move out, you must give your landlord a reasonable opportunity to fix the defects. If the defects are fixed in a reasonable amount of time, you will not be able to abandon the property. In most states, 30 days is considered a reasonable amount of time. However, serious defects may require the landlord to act quicker. For example, if tree roots are blocking the main sewer line and your toilets do not work, a reasonable amount of time may be one or two days.
4
Notify your landlord that you are moving out. If your landlord does not fix the defects in a reasonable amount of time, you should notify them that you plan on moving out and abandoning the property. The letter should include all of your reasons for moving out along with evidence that your reasons are legitimate. Your notice should include a description of when you will move out and that you will return all keys to the landlord.
- Within your notice you should also provide all of the evidence of the defects that you have collected. This might include pictures, inspection reports, and handwritten notes.
- Your notice might also discourage your landlord from suing you by stating the legal standard you are using to abandon the property.
Once you provide notice to your landlord you will move out of the rental unit. Make sure you return all of the landlord's property to the landlord (i.e., keys to the unit). Do not leave any of your property in the unit and do not do anything to make the unit more defective than it already is. If you fail to move out properly (i.e., if you cause major defects or leave your property behind) your landlord might be able to bring an action against you to recoup some costs.
If the defects do not rise to the level required to use this remedy, the landlord might sue you to collect rent and/or damages. These damages can be substantial considering you are breaking your lease and moving out of your unit completely. Great care should be taken to ensure you are using this remedy properly.
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Part 3

Part 3 of 5:

Withholding Rent

1
Assess the seriousness of the defects. The remedy of withholding rent from your landlord can only be used in very serious situations. When you withhold rent you are choosing not to pay your landlord some or all of the required payments. In order to use this remedy properly, the defects to your unit must be more serious than defects justifying the use of repair and deduct or abandonment remedies. Therefore, the defects must be so serious that they immediately threaten your health and safety.
- For example, in California, a court allowed a tenant to use the withholding remedy when the defects were so serious that the unit was unequivocally uninhabitable. In that particular case, the tenant had all of the following defects at the same time: a collapse of the bathroom's ceiling, a continued presence of rats and cockroaches, a lack of any heat, plumbing blockages, exposed and faulty wiring, and an illegally installed stove.
2
Inform your landlord and allow them a reasonable time to make repairs. If your defects rise to a similar level to those seen in the California court case and they were not caused by you, you need to notify your landlord of the defects and give them a reasonable time to make the repairs. Your notification should be in writing and should detail all of the defects present in your rental unit. Include photographs, videos, witness statements, and inspection reports if possible. When your letter is complete, sign and date it and give it to your landlord. Make sure you get a signed receipt as evidence that your landlord saw your notice.
- Once your landlord is notified of the defects, he or she will have a reasonable amount of time to make repairs. In a rent withholding situation, the defects are likely going to be so serious that a reasonable amount of time may only be one or two days.
3
Withhold the proper amount of rent. If your landlord does not repair the defects in a reasonable amount of time, you can withhold some or all of the rent. You can continue to withhold rent until all the repairs are made. To determine how much rent to withhold, courts will usually use one of the following tests:
- The percentage reduction in rent. To use this method, you need to determine the percentage of your unit that is uninhabitable due to the defects. The rent will then be reduced by that amount. For example, if one of your four rooms is uninhabitable, you will be able to reduce the amount of rent you owe by 25%. Therefore, if your normal rent is $1,000 per month, you will only pay $750 per month until the necessary repairs are made.
- The reasonable value of rental unit. To use this method, you will determine the value of the rental unit in its defective state. You will then pay your landlord the difference between the normal rent value in your lease and the defective rental value. For example, assume you determine that the value of your unit is $200 per month in its defective state. You can further assume your normal rent payment is $600 per month. In this example, you would withhold $200 every month and pay $400 in rent until the defects are repaired.
4
Deposit the withheld money in an escrow account. When you withhold rent, do not spend the withheld money. The money you withhold should be placed in an escrow account and you should notify the landlord that you are doing so. An escrow account is a special type of bank account used to hold money that may or may not belong to someone else. You should do this for the following reasons:
- First, rent withholding cases often end up in court. If the judge disagrees with your calculations, you may have to pay your landlord a portion of the money you originally withheld. If a judge rules against you, you will have to make the required payment within five days of the judge's ruling.
- Second, placing the money in an escrow account provides evidence that you are not withholding rent to simply avoid payments.
- Third, a lot of legal organizations will not represent you unless you have placed your withheld rent in an escrow account.
As with the other lease violation remedies, there are inherent risks in using the withholding method. If the defects are not serious enough to allow for this remedy, the landlord can sue you for rent and may even be able to evict you. Even if you win a court case about withholding rent, the court may not agree with the amount you withheld and may require you to pay some of the withheld money to the landlord.
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Part 4

Part 4 of 5:

Bringing a Lawsuit

1
Assess your chances of success. All of the other methods in this article allow you to take action against lease violations without bringing a lawsuit. As a last resort, if no other remedy gives you the desired outcome, you can file a lawsuit against your landlord to collect damages if defects are not repaired. You can file a lawsuit without ever trying any of the other remedies available to you. To win a lawsuit against your landlord, you must generally be able to show all of the following:
- The rental unit has a serious defect affecting habitability
- A housing inspector has inspected the unit and deemed it to be uninhabitable
- The defects continue for 35 days after the housing inspection is completed and the landlord is made aware
- You did not cause the defects
- The landlord still tries to collect rent from you
2
Prepare to file your lawsuit. Before you file your lawsuit, you should notify your landlord of your intentions. Your notice should describe, in detail, the defects that need to be repaired. You should notify your landlord that you will give him or her a reasonable amount of time to make the repairs before you bring the lawsuit. If your landlord fails to make the repairs in a timely manner, you should contact your local housing department to schedule an inspection.
- During the 35 day waiting period, you need to collect evidence of the defects. Evidence can include pictures, videos, witness testimony, and inspection reports. All of these documents will be used in court to help you prove your case.
- Before you file your lawsuit, talk with a landlord-tenant lawyer about your case. If you do not know a good lawyer in your area, contact your state bar association's lawyer referral service. After answering a few general questions, you will be put in contact with multiple qualified lawyers.
3
Prepare a complaint. In order to file a lawsuit, you will need to prepare a formal complaint. A complaint will contain a caption, which includes the court's name, the parties' names, and a title (i.e., Complaint). The first section of your complaint will introduce the parties and the factual situation that has led you to file the suit. There should be a statement of all the important facts as well as the legal standard you are suing under.
- Your complaint will also need to tell the court why it has jurisdiction over the case. In this scenario, it will usually be enough to say the rental unit is located in the county where you are bringing your suit and the defendant resides in that county as well.
- The last part of your complaint will ask the court to provide a certain remedy (e.g., an award of money damages).^{[3]XResearch source}
Once your complaint has been written, you will need to file it with the court in the county where the rental property is located and/or where the defendant resides. To file your complaint, take it to the courthouse and hand it to the clerk of courts.^{[4]XResearch source} He or she will stamp your complaint as filed as soon as you pay the filing fee, which is usually around $200-$300.
5
Await the landlord's response. Once you file your complaint, you will have to serve a copy on your landlord, who is now the defendant in your case. To serve the defendant, have someone over the age of 18 who is unrelated to the case deliver or mail a copy of your complaint and summons to the defendant. A summons is a form the court will give you when you file your case. Once the defendant has been served he or she will have an opportunity to respond to your case by filing an answer.
- An answer responds to all of your allegations by admitting or denying each statement you made. The defendant's answer may also contain counterclaims if he or she is choosing to bring an action against you.^{[5]XResearch source}
6
Prepare for trial. Once the defendant's answer has been filed you will usually attend a case management conference with the court to determine a schedule of events. Discovery will start as soon as this conference ends. You will Participate in Formal Discovery by using discovery tools to ask the other party for information. Once discovery ends, the defendant may choose to file a motion for summary judgment. This motion asks the court to end the litigation by claiming there is no way you can win based on the evidence uncovered so far. You will have to Defeat a Motion for Summary Judgment by showing the court there are genuine issues of material facts and that the defendant is not entitled to a judgment as a matter of law.
- If you succeed in your defense of the motion for summary judgment, you might consider settling your case before trial begins. Trials are often time consuming and expensive. A lot of defendants will be willing to settle to avoid trial. You can usually Resolve Disputes Without Litigation by taking part in informal settlement discussions, mediation, or arbitration.^{[6]XResearch source}
7
Go to court. If settlement offers fail, you will have to go to trial. Trial will start with you picking a jury. As soon as the jury is empaneled, you will make an opening statement. Your opening statement will provide a road map of your case and what you intend to prove. The defendant will have an opportunity to make an opening statement after you.
- The case will really begin when you present your case to the court. You will do this by offering evidence of the landlord's lease violations through witness testimony and exhibits. Once you present your case, the defendant will have an opportunity to present his or her case.
- After the defendant presents his or her case, both parties will have an opportunity to make closing arguments. During closing arguments, you will recap the important pieces of evidence and highlight why you should win.
- Once the trial is over, the jury will deliberate and return a verdict. If you chose not to have a jury, the judge will consider the evidence and make a decision. Once a judgment is entered, you will have to comply with the order. If you win, you will be awarded damages. If you lose, you might be able to appeal to a higher court.^{[7]XResearch source}
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Part 5

Part 5 of 5:

Researching the Violation

1
Look through your lease. Most residential leases are signed, written documents laying out the obligations of you and the landlord. Even if your lease is an oral agreement, state laws will dictate how each party must act. While most landlord-tenant relationships go smoothly, problems will sometimes arise. If you are a tenant and you feel like your landlord has done something to make your rental unit unlivable, look through the lease agreement for a remedy.
- In particular, look for provisions about habitability, repairs, and breaches (i.e., violations). These provisions will be important in helping you determine whether a lease violation has occurred and how to remedy it.
2
Determine if your state follows the doctrine of implied warranty of habitability. Research your state's landlord-tenant law or ask a professional about your state's implied warranty of habitability. In most states, before a unit can be rented, and while you are renting it, your rental unit must be fit to live in (i.e., habitable). This obligation is assumed to apply to all residential leases, which means your landlord must abide by the law even if there is no habitability provision in your lease.
- There is only one state that does not have an implied warranty of habitability. In Arkansas, when you rent a residence you take it "as-is", which means the landlord has no obligation to maintain the premises.^{[8]XResearch source}
3
Research the types of conditions that make a rental unit uninhabitable. While most statutes require a unit to be fit for human occupation, they do not state how that is to be done. Instead, court cases over time have determined what makes a residential unit habitable or uninhabitable. If your unit meets the definition of uninhabitable, the landlord has violated your lease and you can take certain actions to remedy those violations.
- When a state defines habitability, they may define it by what is unacceptable (i.e., by what makes a unit unlivable). If your dwelling lacks any of the following, it might be considered uninhabitable: effective weather protection, plumbing facilities in working order, heating facilities in working order, lighting, sanitary grounds, adequate trash receptacles, and working floors, railings, and stairs.
- Other states might define habitability by what must be present in your residential unit. In general, your residential unit must have the following to be considered habitable: a working toilet and shower, a kitchen with a sink, natural lighting in every room, safe emergency exits, operable locks on all doors and windows, working smoke detectors, and a locking mailbox.
4
Ensure you hold up your end of the agreement. While almost every state has an implied warranty of habitability, it is not without limits. As a tenant, you must fulfill certain legal obligations to make sure your unit remains livable. Most states will require you to take reasonable care of your unit and to take certain specific actions. If you fail to hold up your end of the agreement, and your failure caused your unit to become unlivable, your landlord will not be required to make repairs. In general, you must do all of the following to make sure the implied warranty of habitability continues to work in your favor:
- Keep the unit clean
- Use gas, electricity, and plumbing fixtures properly
- Dispose of trash
- Not destroy or deface your unit
- Not remove any part of your structure
- Use the premises properly (i.e., use the bedroom as a bedroom and not as a kitchen)
- Notify the landlord as soon as possible when things do not work properly
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