What To Do When Housing Conditions Are Bad: A Tenant’s Guide to Safe Housing
Posted on 04/14/2021at8:17 pm
This article will explain a tenant’s various options when faced with unsafe living conditions. Under West Virginia law you are to have a minimum standard of living when you rent from a landlord. In this article you will learn about:
- What protections exist for tenants.
- The limits on those protections.
- The various actions you can take to obtain safe living conditions within your home.
- The most important steps to take before any action to successfully obtain a safer living environment.
What is the “Warranty of Habitability”?
According to West Virginia Code §37-6-30 a landlord is required to deliver and keep up any home in a fit and habitable state. This promise applies to every lease whether it is written in the lease or not. Neither the renter nor landlord can waive this promise by a clause in the lease. If the landlord does not deliver or keep an acceptable home there are actions you can take to obtain a safe place to live.
What is considered “habitable”?
Every case is different. The court’s interpretation of “habitable” can vary. Even though it varies there are some things that are considered. All homes must meet:
- Health codes
- Safety codes
- Fire codes, and
- Housing codes
Some things that are violations of the warranty are:
- Lack of running water
- Lack of heat during cold weather
- No electricity
- No smoke alarms
- Unsafe toilet and bathroom
What doesn’t violate the Warranty of Habitability?
Here are some things that would not be a violation of the warranty of habitability.
- Unpainted walls
- Peeling wallpaper
- Broken blinds
- Missing door knobs
- Dirty carpet
- Uneven floors
- Poorly hung cabinets or doors
- Any damages you or a guest made to the home
When does the Warranty start?
The promise of a safe place to live starts at the time you sign the lease. Your duty to pay rent relies on on the landlord’s duty to deliver a safe place and keep it up during the lease.
Do I have to be caught up on rent to assert this Warranty?
Generally, yes. If the defect occurs and you are current on your rent, then the landlord has the duty to make the repair. If you are behind on your rent, and a defect occurs, then you need to pay your complete rent before your landlord has a duty to make the repair. If you are behind on rent, make sure you get a receipt to prove that you have paid the rent.
What should I do if I think the Warranty has been broken and my housing needs repairs?
If you think your housing is not up to standard there are a few things you need to do first. Your goal is to get the owner to fix the problems so you can live in your home safely.
First, Document the Problem: When you first notice a problem you should take pictures of everything you think needs repaired. These pictures should be timestamped with the date they were taken. You should also have a friend there so they can be a witness later.
Second, Notify the Landlord: As soon as you notice any defects you should notify the property owner. You may call, text message or email. If you use text message or email, you may want to screenshot the communication to document that you contacted the landlord. If the landlord does not respond timely, you may want to send a letter to the owner by certified mail. The letter should have the following:
- Your name
- Owner’s name
- Your housing address
- All of the problems listed in detail
All of the pictures and reports you have gotten together should also be sent in this letter. Make and keep copies of everything you sent to the owner in this letter. Along with all the evidence you send you will need to ask the owner to fix the problems. These problems must be fixed in a reasonable time.
Third, Notify applicable government agencies: If the landlord fails to act in a reasonable amount of time, and the problem affects the health and sanitation of your home you should contact your health department inspector, code enforcement officer, or a public utility such as the gas, electric or water service providers. They will confirm or deny the extent of the problem.
If they find something unsafe, they may place a “red tag” on it. You will need to take pictures of these to later send to your landlord. Do not remove these tags.
Be aware that if your house is seen as too unsafe by the health inspector or code enforcement officer, they could tell you that you can’t stay there. If you think the problem is that bad you should have another place to stay before you contact them.
What is a “reasonable time”?
“Reasonable time” varies case by case. Depending on the severity of the problem, a landlord may have a couple of days to several weeks to make the repair. The law does not set a timeframe for the defects to be repaired, only that your landlord fix the problems quickly and properly.
What if my landlord does not fix the problem?
After you have notified your landlord with a letter and evidence but they still have not fixed the problem there are three things you can do. What you do from here on is very important. Many people choose to hold back their rent money but often this is not your best choice. If you are not sure which option is best for you after reading this article you should talk to an attorney. Your three options are:
Since the landlord has breached the lease by failing to provide appropriate habitable conditions, you can move out without giving notice or paying the rest of the rent left on your lease. If you move out early your landlord may try and sue you for breaching the lease. This is why is it is important to obtain a health department report to prove your housing was not ok. “Red tags” from utility companies are also good to have for this reason.
You have to make sure that the violations are bad enough to be a breach of the warranty. If they aren’t you may have to pay the landlord’s losses. A landlord has a duty to “mitigate damages.” This means that the landlord has to try and find a new tenant to lease the property, but if you are found to have breached the lease, you may have to pay vacancy rent, advertising expenses and other reasonable expenses the landlord spent to find the new tenant.
Make sure that you have enough money to move into other housing. Your landlord may try to keep your security deposit and even though should be able to get this back it might be several weeks. So before you decide to move out make sure you that you:
- Have enough money to move into another place
- The violations are in fact bad enough to be a violation
This is when strong documentation and reports will become important. Moving out is usually the quickest and easiest option for a tenant. It lets you use your money to get a new place instead of withholding and having to pay back the rent while being evicted. In this case landlords are less likely to sue for the left over rent and will simply find another renter instead.
Sue them in court.
You have the option to sue the landlord for the change in fair market value between an acceptable home and your home. The law also allows you to seek damages for annoyance and inconvenience such as:
- Moving costs
- Damage to any personal items
- Any additional costs incurred that were due to the condition of the home
To file your own civil suit visit the Magistrate Court Clerk and ask for a complaint form or find one on the Supreme Court of West Virginia’s website. If you can’t afford to pay the filing fee for the case, you can apply to waive the costs by filing out the Fee Waiver Form.
On the complaint form, you should state the following:
- That your landlord has violated West Virginia law by failing to keep up your rental housing in a habitable condition.
- Describe all of the conditions in your home which you believe are in violation of the law.
- State that you did notify the landlord of your complaint and that they have failed to any take action to fix it.
On the complaint form there is a place where you may state what you are asking for. In this section you should state that you are asking the court to award you money damages to make up for having to live in an unfit home.
- That you are asking the court to award you money damages to make up for having to live in the unfit home.
- There are two types of money damages you can ask for
- You can ask for a refund of all or part of your rent because of the landlord’s failure to keep safe housing.
- You can also ask the court to award damages for “annoyance and inconvenience.” The maximum you can ask for in magistrate court is $10,000.
The goal of the suit is to receive damages for “annoyance and inconvenience” which will help to pressure the owner into correcting the problems within the home. In order to win your suit you must have evidence that your housing is not habitable. This could be your own testimony or that of other people who have seen the home. This is also when having some documentation (pictures, videos, a utility company, city inspector’s report, or “red tags”) are important.
If you live in a rural area and there are not many housing options nearby this might be your best choice. If you keep paying the rent and sue you will be able to stay in your house while getting things fixed. You will also get the chance to receive damages. The bad part is that you will have to keep staying in an unsafe home until the suit is over.
The goal of holding back rent is to force the landlord to make repairs. If they still do not repair then you will have to file a suit in court. This is why holding back rent is rarely the best option. It is hard to get a good result when you decide to hold back rent.
Almost any instance of holding back rent will result in an eviction case being filed against you. You’re better off not risking an eviction and taking the property owner to court. Rather than trying to force repair by holding back your rent. If the landlord tries to evict you for not paying you may assert the Warranty as a defense.
What if the landlord tells me to get out because I withheld rent?
You will need to tell the landlord again in writing that you are not paying rent because of the home’s condition. The landlord will likely sue to evict you. Few cases are won on a claim of warranty of habitability when rent is behind.
This is a very big chance to take because if you do end up getting evicted you almost certainly have a harder time finding housing in the future.
What can I do to improve my chances of success after I hold back rent?
The most important thing you can do to win a rent withholding case is to not use your held back rent money for other things. You must either pay this money to a separate account or bring the money to court in the form of a cashier’s check.
If you do not have the money when you go to court the Judge will think you are a renter trying to avoid paying rent. Having the rent you held back gives weight to your case.
Many times this money would be better spent as a deposit on a new place. Your chances at winning by holding back rent are slim. Unless you cannot find another place to live, moving out is your best option. Holding back your rent should be a last resort.
Can I just repair and deduct the costs from my rent?
No. Unless you agreed to this in you lease West Virginia law does not allow repair and deduct as an option. Do not spend money on repairs if you expect to get money taken off your rent. If the landlord says he/she is willing to do this, be sure you have this documented in some form of writing, even if it’s only email or text message. Further, unless the landlord agrees to, it is unlikely you would be reimbursed for any work you did on the place. So, for example, if you have a clogged pipe, you may be able to pay the plumber and deduct from rent, with landlord’s agreement, but if you fix the problem, you are unlikely to be paid anything.
Who pays for the repairs?
The landlord has to pay for all repairs it takes to bring your housing back up to habitability. They are not responsible for any damages done by you or any of your guests. So, if you or your guests break the furnace, the landlord may not be required to fix it.
Will I get out of paying all my rent if I am successful in holding back my rent?
The judge will likely not give you a 100% reduction in rent. They will likely set a reduced amount to be paid after the hearing while taking into consideration the condition of the home when deciding how much rent you will pay.
Do not expect to keep all the withheld rent. The point of holding back is to get repairs done. Not to get a free place to live. The judge will usually not discount over half of your rent so be prepared to pay what is left. You must have this money ready to pay for the rest of the rent or you will be evicted.