What Constitutes an Unsafe Condition
Mold: Mold is a type of fungus that produces spores for reproduction. Mold comes in a variety of colors and can grow on practically any surface with some moisture and nourishment; hence, why it can be found in the home. Mold can become a serious health concern if left to thrive because some forms of mold emit toxins that are harmful to human health.
Infestations: Certain household pests can pose health risks if not properly controlled. For example, cockroaches spread many diseases and can trigger allergic reactions or asthma attacks. Rodents such as mice and rats can harbor pathogens in their droppings, urine, and saliva .
Faulty wiring: Electrical systems in homes are often outdated and poorly maintained. Faulty wiring is a leading cause of electrical fires in homes. An electric fire can result from overheating, overloading electrical outlets, frayed wires, or damaged cords.
Structural hazards: Structural hazards are conditions that interfere with the structural integrity of a home. Such conditions include unstable staircases, inadequate railings, fire hazards, and broken flooring. Structurally unsafe homes can lead to devastating personal injuries.
Basis For Suing a Landlord
The legal grounds for your claim against a landlord can be found in New Jersey’s law on landlord-tenant relations. N.J.S.A. 2A:42-82 et seq.
Although landlords have the right to sue tenants for unpaid rent and for eviction, so do tenants. Those rights are granted by statute. The statute grants landlords the right to recover possession of the premises for (1) nonpayment of rent, (2) breach of lease agreement, (3) illegal or immoral activity, (4) violation of state building, health and safety laws or the like or (5) the tenant substantially impairing the use or enjoyment of other tenants. The statute grants the tenant a right to recover up to one year’s rent from the landlord if the tenant (1) provides adequate notice of the incurred rent due, (2) provides the landlord with the opportunity to correct the problem, (3) holds back only that rent attributable to the defective conditions, (4) replaces the rental check with improper payment and (5) pays the remainder of the rent into court to hold until the matter is decided.
While the above are proper grounds for an action by either the landlord or the tenant, it is the lease agreement that actually controls the landlord’s rights. The lease may impose additional obligations upon the landlord to maintain and repair the premises. Failure to meet these statutorily created or agreement imposed duties, especially in a manner that affects the health and safety of the tenant, can provide a good legal basis for a tenant suing a landlord.
For example, if your lease states that the landlord is responsible to replace and maintain the heating unit in the premises, the failure to do so would breach the lease and would be a proper legal grounds upon which to base a lawsuit against the landlord.
What To Do First
Before resorting to lawsuits, you should take a number of steps:
- Document the Problem: You should document the problems with your rental property, including taking pictures of mold, flooding, scrapes on the wall, or any other issues. Pictures speak a thousand words; by documenting damage, you can capture evidence photo and even video that many people will find persuasive and powerful.
- Notify Landlord: You should immediately tell your landlord about the problem. Periodically, landlords forget to maintain their properties, and your act of notifying the landlord gives them the opportunity to fix the problem. In fact, notifying your landlord may give you additional legal rights. For instance, in Illinois, if you notify your landlord of a problem and they fail to fix it within 14 days, you may be able to break the lease, as long as you notify the landlord in writing and send it by certified mailing (I talked about writing a letter to your landlord last week).
- Notice to Tenants: If the landlord will not make repairs, consider contacting your local news outlet about their refusal to repair a serious problem. Sometimes just bringing a problem to light will convince the landlord to take action.
- File Complaints: You may be able to complain to the better business bureau, which will record the problem as a complaint. You can also consider calling your local housing authority or state or local attorney general’s office about reporting the problem.
- Medical Attention: Get yourself focused on taking care of yourself if you are sick. You shall seek medical attention and rehabilitation for any health problems you may have. Your health is the most important thing!
- Avoid Taking Revenge: Avoid retaliating against a landlord. If the landlord notifies you to pay rent or vacate, you should pay the rent or peacefully vacate. In fact, paying the rent will make it more challenging for the landlord to prove damages in court.
Suing For Unsafe Condition
As soon as your landlord is notified of the unsafe conditions and you receive no response, you are permitted to file a lawsuit against them. A notice of request to cure or quit must be sent to your landlord before any court action can begin.
Consultation with an attorney is recommended before filing a lawsuit.
Warning! In some states, if the alleged unsafe conditions are caused by illegal acts of the tenant, such as criminal activity, the landlord cannot be held responsible for repairing, abating, or providing other relief. In some states, tenants are entitled to repair and deduct due to the unsafe conditions, so tenants should review the relevant laws and how they apply to every particular situation.
The same attorney that dealt with the letter to your landlord will evaluate the safety issues and let you know if the matter qualifies as a lawsuit or not. If approved, the filing lawsuit process will begin. Each state has different procedures that must be followed, so tenants should consult with an attorney that knows the state laws to ensure that all procedures are followed accordingly.
Depending on the severity of the problems being created by your landlord, as well as the damages involved, a different types of lawsuits will apply. The two main types of lawsuits are:
When filing a lawsuit, your landlord will need to receive notice. When notice is received, the complaint, which is the beginning of the lawsuit, is served to them. Behind the complaint, you will need to add a summons and variance complaint form, which is required by most state courts. After the notice of action is received, your landlord will have a certain period of time to respond.
Cases that center on safety hazards, such as lead poisoning, contain a lot of evidence in order to support your claims against the landlord. The attorney you choose will help you get your evidence together so you can present it at court or prepare a settlement in your favor. Evidence submitted will include photographs of the unsafe condition, medical reports, police reports on related incidents with your landlord, receipts to repair items out of your own pocket, etc.
If you win the case, your landlord will be required to either fix all safety hazards in the rental unit, pay you damages, or doing both.
Possibilities and Remedies
When it comes to suing your landlord for unsafe living conditions, the outcomes can vary depending on whether the case is settled or goes to trial. Some of the possible outcomes of a lawsuit against your landlord include:
Repair Orders: If the court finds in your favor, it may order your landlord to make necessary repairs. At times, a judge may order the repairs completed without immediate reimbursement and rather make a landlord set up an escrow account to be used for the cost of the repairs.
Rent Reductions: In some circumstances, the court may reduce the rent while also retaining control over the rent amount until problems are corrected. The excess sum will be held in an escrow account overseen by the court until the repairs are completed.
Compensation: You may be awarded monetary compensation for damages associated with poor or unsafe conditions as well as the amount necessary for you to remedy the unsafe conditions or seek safe housing .
Rent Compensation: Some states allow the tenant to either pay the rent at a reduced rate or place withheld rent into escrow until the landlord has remedied the unsafe conditions in the home and/or building.
Termination of Tenancy: Another possible outcome may see the landlord required to terminate the tenancy rather than remedy the situation. In that case, the landlord must often pay costs associated with the relocation or hiring of a company to remedy the safety conditions.
While it is not always a satisfactory solution, a court may issue a declaratory judgment if you believe you are entitled to damages as a result of your landlord’s actions or inaction, though damages are sometimes required for a showing of intentional infliction of emotional distress.
Alternative Ways to Sort It Out
In certain instances, depending on the cost/benefit analysis of the situation, clients may prefer to avoid litigation, especially if it is a smaller claim or involves public housing. In these cases, you may be able to resolve the issue without pursuing a lawsuit. One possibility is to take advantage of available funding that public housing authorities (PHAs) receive from the U.S. Department of Housing and Urban Development (HUD). These funds are available to establish appropriate procedures for mediation or other forms of alternative dispute resolution concerning disputes with tenants or tenants’ household or guest members, neighbors, or others who reside in the dwelling. A landlord may not charge tenants for mediation services.
Private mediation is also available as an alternative to litigation. For example, your local courthouse may have a mediation center or panel of volunteer mediators who can help facilitate a settlement. Another option is the Community Board Settlement Mediation Program, which uses trained community volunteers to mediate cases pending currently in the Civil Court Housing Part and several other Divisions of the New York City Civil Court. Our office has found in the past that private mediation can be a useful option. However, the parties have to agree to try to mediate, and there is no guarantee that the mediator will be able to restore a friendly relationship between landlord and tenant.
Another possibility for a dispute with your landlord is to participate in the New York City Department of Housing Preservation and Development’s (HPD) Alternative Dispute Resolution Program. HPD has been offering mediation programs since the 1990s, which are designed to provide tenants and landlords with a voluntary process for resolving their differences. Free mediation and conflict/case assessment services are available to assist in resolving disputes between landlords and tenants relating to maintenance, repairs, rent, leases, and any other issue relating to rent stabilized housing.
Mediation is completely voluntary and takes place in HPD offices in a neutral setting. The process only works if both parties agree to mediate and make good faith efforts to resolve their problems. If they do not reach resolution, the case can be referred back to court for further processing. Note that individuals who attend HPD mediation conferences are not held responsible for the legal fees and costs. The HPD has the discretion to issue a stay of the eviction proceeding while the parties are participating in mediation.
Arbitration is another way to resolve your dispute. Under DP-252, a Program Dispute Resolution Professional may be selected by HUD or the PHA and paid from funds appropriated for the specific purpose of administering the HUD Alternative Dispute Resolution (ADR) program, to resolve program-related disputes. This Rule applies to any leaseholder or tenant in a jurisdiction that does not have a program dispute resolution process, or none that is available to the leaseholder or tenant. Sometimes this may be appropriate for tenants with a resolved condition.
Moreover, courts recognize alternative dispute resolution (ADR) methods as a way to resolve a variety of civil disputes, including landlord-tenant disputes. For example, mediation is one ADR method that is sometimes utilized to resolve tenant disputes. Mediators tend to be court employees. The parties are usually able to choose the mediator. They may choose to mediate relationships between themselves, prior to the filing of a legal action or once the legal action has been commenced. The two parties decide how to resolve their differences and sign an agreement. That agreement is enforceable in a court of law.
Your Rights as a Tenant
As a tenant, there are important steps you can take to protect your rights and ensure your living conditions are as safe and healthy as possible. Living in an apartment or other rented space can come with unique challenges, so understanding how you can manage these challenges and your landlord’s role in the process is beneficial.
Carry Out Regular Inspections
You have a right to refuse a rental unit that you consider unsafe or unhealthy. Your lease will have a list of requirements for the unit, so each time you move into a new place, inspect it to make sure it meets these requirements. Look for water spots on the walls or ceilings, and make a note of any other potential hazards. It’s also a good idea to take photos of the unit’s condition when you move in, so you can refer to those photos later if any issues were to arise.
Know How to Advocate for Yourself
Most states have tenant advocacy groups that will advise you on your current situation. You can obtain their contact information on the U.S . Department of Housing and Urban Development website. These advocacy groups will help you learn your rights as a tenant and your options for handling potential problems with your landlord or rental unit.
Read Your Lease Agreement
Many tenants don’t read their lease agreements to their full extent before signing, but this can cost you later. You want to make sure that the terms of the lease follow state and local laws, and that your landlord’s expectations of you as a tenant are reasonable. If anything looks strange or out of place, discuss it with your landlord before signing the lease. If the landlord refuses to change the terms of the lease, you may need to reconsider if the property is right for you.
Know Your Rights
A solid understanding of your rights as a tenant is the first line of defense against an unsafe property. Be sure to know your rights and check the finances of the building to ensure that management is maintaining the property, else you could be looking at more serious violations down the road.