Repairs & The Implied Warranty of Habitability
The Right to a Decent Place to Live
The Pennsylvania Supreme Court has ensured that tenants have the right to a decent place to live. This guarantee to decent rental housing is called the Implied Warranty of Habitability.
The Warranty means that in every residential lease in Pennsylvania (whether oral or written) there is a promise (the Warranty) that a landlord will provide a home that is safe, sanitary, and healthful. A rental home must be fit to live in and the landlord must keep it that way throughout the rental period by making necessary repairs. Even if the renter signs a lease to take the dwelling “as is”, the Warranty protects the individual. The right to a livable home cannot be waived in the lease. Remember, the Warranty is in the lease, whether or not the lease says so. Any lease clause attempting to waive this Warranty is unenforceable.
The Warranty does not require the landlord to make cosmetic repairs. For example, the landlord is not required to repair faded paint, install new carpeting, or make other cosmetic upgrades or improvements. However, the landlord must remedy serious defects affecting the safety or the ability to live in the rental unit.
The following are examples of defects covered by the Implied Warranty of Habitability:
- Lack of hot and/or cold running water
- Defunct sewage system
- No ability to secure the leased premises with locks (doors, windows) • Lack of adequate heat in winter • Insect or rodent infestation
- Leaking roof
- Unsafe floors, stairs, porches, and handrails
- Inadequate electrical wiring (fire hazard) or lack of electricity
- Inability to store food safely because of broken refrigeration unit (when the landlord is responsible for maintenance and repair of refrigerator)
- Unsafe structural component that makes it dangerous to occupy the premise
What Is Adequate Heat?
“Adequate heat” depends on your local property maintenance codes. You will need to check with
your local municipality to see what the requirements are for adequate heat in a rental unit in your community. Many municipalities have adopted the International Property Maintenance Code as
a standard for property maintenance. This code generally requires landlords to provide a heating system that is able to maintain a minimum temperature of 68°F (20°C) during the winter months. In Philadelphia, landlords are required to maintain a system to provide heat at 68 degrees minimum from October through April. If the tenant has control of their own heat via a thermostat, the landlord is not required to keep the heat at 68 degrees minimum—that is left to the tenant’s discretion. Check with your local code enforcement department for the minimum heating requirements in your area.
What Do You Do If Your Unit Is Not Habitable?
- You must determine that the defect interferes with the habitability of your rental unit (your ability to live in the dwelling is seriously impaired).
- Once you determine that the defect interferes with your habitability, take pictures of the problem. If you are required to appear in court, pictures will be advantageous to have.
- You must notify the landlord of the problem. If there are provisions in your lease describing how to notify the landlord about defects, make sure to strictly follow those notice procedures. If you speak to him or her, make sure you follow up in writing and keep a copy of the letter for yourself. For tenants, it is always good practice to notify the landlord of any defects in writing. This provides the evidence you need to show the landlord was notified of the defective conditions. (See “Sample Letters to Landlords”)
- You must allow the landlord reasonable time to repair the defective condition. How much time is reasonable time? There is no universal answer. The reasonableness will be determined by the nature of the defect and whether or not the ability to correct the defect is within the landlord’s immediate control. A reasonable time to fix a damaged roof might be measured in weeks; but lack of heat in the winter months must be remedied within a day or two at most.
- You must be able to show that the landlord was either unwilling or unable to repair the property within a reasonable amount of time after being given notice of the defect before using a remedy to address the problem.
- If you decide to pursue a remedy or a combination of remedies, you will need to proceed cautiously and be well prepared because your landlord may take steps to collect rent or even try to evict you. Proper legal advice is invaluable. Pennsylvania law prevents your landlord from evicting you in retaliation because you exercised your rights properly under the warranty of habitability. You can be evicted if a court finds that you exercised a remedy improperly and breached your lease as a result.
Tenant Remedies for a Breach of the Implied Warranty of Habitability
Tenant Remedies for a Breach of the Implied Warranty of Habitability:
- Terminate your lease and move out
- Withhold all or part of the rent
- Repair and deduct
- File a legal action to seek compensation
BEFORE PROCEEDING WITH ANY REMEDY, KEEP IN MIND THE FOLLOWING:
- Each of these remedies has a risk associated with it. Any of them could cause your landlord to try to evict you. If your landlord is not providing a habitable rental unit, he cannot evict you in retaliation for properly using one of these remedies. But he can still evict you for non-payment of rent if you withheld rent improperly or have violated the lease in other ways.
- Before using any of these remedies, you may want to contact an attorney or a tenant’s rights organization for legal advice relevant to your situation. Make sure you have taken the correct steps to establish and protect your rights. There are limitations that apply to these remedies and proceedings. Any of these remedies can be complicated and each individual circumstance is different. Proper legal advice is invaluable.
- Make sure you can prove that the problem exists. Testimony in court from friends and relatives is acceptable but photographs that clearly show the defect you want to point out are better and a letter or notice from code enforcement is ideal.
- Always think ahead and be prepared in case the landlord ends up taking you to court. You will need to have documentation of the defects that made your apartment uninhabitable—photos, code inspection case reports, proof that you gave the landlord notice of the defects in writing, and proof that you gave the landlord a reasonable time to make the repairs, proof that the repairs were not made, and therefore that you were legally entitled to utilize one of these remedies.
Remedy #1: Terminate your lease and avoid any further duty to pay rent.
The tenant has the right to terminate the lease and move out of the premises if the tenant has given notice of the premise’s defects to the landlord and after a reasonable amount of time, the landlord was unwilling or unable to make the repairs.
If you decide to use this remedy, you must move out of the leased premises. You cannot terminate the lease and remain in the property. You could lose your security deposit or be sued for nonpayment of rent if you do not vacate the property. All move out procedures must be followed including surrendering all keys to the landlord.
Remedy #2: Withhold all or part of the rent until the defect is remedied.
Under Pennsylvania Law, you may withhold rent if you can prove the dwelling unit is not habitable and have taken the proper steps of informing the landlord of the problem and giving the landlord a reasonable amount of time to fix the defect that caused your rental unit to be uninhabitable. As long as there is evidence that the dwelling unit is not habitable, you should have a defense if the landlord files any legal proceeding for non-payment of rent.
- Make sure you have given your landlord written notice that the problem exists.
- Make sure you have allowed a reasonable time for repair and can prove that your landlord has failed to make the repairs you requested.
- Consult an attorney if you are unsure of how to proceed, have concerns about proving a violation of the implied warranty, or need additional information.
How much rent can you withhold?
There is no exact formula to determine how much of your rent you can legally withhold. One way to calculate this amount is to figure out how much of your home you could not use and for how long.
Example 1: If you have a five-room apartment and you could not use one of the rooms for an entire month due to a roof leak, you might deduct 1/5 (one-fifth) or 20% of your rent for the loss of 1/5 (onefifth) of the apartment.
Example 2: If you had no heat and were forced to stay with a friend or at a hotel for a week, you might deduct 1/4 (one-fourth) or 25% of your rent for the loss of the use of your entire home for one week out of four.
Placing Withheld Rent in an Escrow Account
While the law does not require that you put your withheld rent into a bank or escrow account, it is a very good idea to do so. If you cannot open a separate bank account, make sure that you can document that you have the rent money set aside. This might give you some protection if your landlord takes you to court for non-payment of rent. Judges often ask tenants if they have escrowed the withheld rent money. By saving the money in a bank account, you will show the Judge that you were not trying to live rent-free.
Remedy #3. Repair defects and deduct the cost of repairs from your monthly rent.
This remedy permits the tenant to repair the defect or correct the conditions that cause the rental property to be uninhabitable. The tenant may then deduct the cost of repairs from the rent. The amount of the cost of repairs that can be deducted from the rent is limited.
- The amount must be reasonable and necessary to make the dwelling unit habitable.
- You are not permitted to deduct for the expenses that make the dwelling unit more desirable. Only costs incurred to make the premises safe and compliant with the warranty of habitability are deductible.
- Before proceeding, give your landlord notice in writing that you intend to exercise this remedy and submit cost estimates.
- You must wait a reasonable amount of time before proceeding.
- You will need to notify your landlord again when the work is completed.
- This option may be good for you if your problem is something specific that a repair person can fix and the cost of the repairs will be less than what you pay for one month’s rent.
- Make sure that you keep all receipts of any costs incurred and provide them to the landlord.
Remedy #4: File legal action to recover cost of repairs, a retroactive rent rebate, and/or compensation for any other damages suffered while the dwelling unit was not habitable.
This may be a good option for you if you have already spent some of your own money on repairs or if you are moving out and think you deserve a retroactive rent reduction because the home had serious issues of habitability.
- You can take this legal action if you are still living in the home or if you are moving out.
- The burden is on the tenant to prove that the Implied Warranty of Habitability prerequisites were followed and that expenses or other losses have been incurred due to the landlord’s breach of the Implied Warranty of Habitability.
Who Is Responsible for Extermination?
The Implied Warranty of Habitability requires a landlord to provide safe and sanitary conditions for tenants. An apartment or house infected with bed bugs, cockroaches, fleas, mice or other vermin is not in a safe and sanitary condition. If your landlord refuses to hire an exterminator, you could contact your local Code Enforcement department. A code officer should come out to the property to inspect and issue a citation to the landlord if an infestation exists. If your landlord refuses to exterminate, you may be able to exercise legal remedies to deal with the infestation yourself. See Tenant Remedies for a Breach of the Implied Warranty of Habitability.
Repairs Not Covered Under the Implied Warranty of Habitability
Cosmetic repairs such as repainting, replacing carpet, updating tiles, and installing upgraded cabinetry are not included in the Implied Warranty of Habitability. Always check your lease. If your lease does not address repainting the apartment and if you alter the condition of the property by repainting, then generally, the landlord is not responsible for reimbursing you for costs, but the landlord can require you to return the property to its original condition when you move out. Get your landlord’s permission (preferably in writing) before you repaint or make any changes to the property to avoid problems.