David Merbaum of Merbaum & Becker, P.C. interviewed as a contributor for a feature article in U.S. News & World Report.
7 Things You Should Know About Tenant Rights
The radiator’s crapped out in your apartment, and your landlord hasn’t responded to your emails or answered the phone for two days. As much as you love your new winter coat, wearing it while you watch TV — and while you sleep — isn’t your idea of fun. The arctic chill may have you thinking: At what point is my landlord required to make repairs?
That would be two days ago.
The relationship between a landlord and tenant can get sticky when things go awry. The only way to successfully protect yourself from housing law violations is to know your rights as a renter, and act when you feel you are being unfairly treated.
Here are some basics to get you started on understanding tenant and landlord laws.
Federal law protects against civil rights violations in housing. The Fair Housing Act dictates no landlord can refuse housing to a potential tenant based on race, nationality, sex, familial status, religion or disability.
The Department of Housing and Urban Development, the federal government’s authority on housing, aims to provide affordable housing options and protect consumers from discrimination. HUD recently reported it received more than 3,500 complaints of housing discrimination in 2012 and 2013, of which 40 percent were settled, charged or sent to the Department of Justice for further action.
HUD spokeswoman Elena Gaona notes that federal regulations are often additionally carried through to state, county or municipal laws, particularly with fair housing. “There’s always local protections, too,” to help reinforce the policy, she says.
Many of your tenant rights are spelled out in state or local laws. In a situation where you feel you are being treated unfairly for any reason, check with your state’s laws on tenant and landlord rights. For the most part, tenants’ rights fall under the jurisdiction of the state or local government, which means they vary throughout the country, explains Dean Preston, executive director of Tenants Together, a nonprofit that advocates for renters in California.
“There are some states, for example, that the state laws prohibit rent control entirely. Then there are other states that are like California where there isn’t state rent control, but they allow local rent control laws,” Preston says.
You have a right to livable conditions. All tenants have a right to be provided with a space considered habitable — including working plumbing, electricity and heat. Beyond these basic details, it varies by state how a landlord is required to provide them and what tenants may do when their needs are not met.
Attorney David Merbaum has a law firm in Alpharetta, Georgia, and handles landlord-tenant disputes, among other real estate and business-related litigation. He says he has seen a number of situations where tenants have trouble with mold in their apartments, which poses a safety issue while they work out the dispute of mold removal.
Merbaum says Georgia has legislation regarding constructive eviction — where the landlord effectively forces the tenant out because the place is no longer habitable. In mold cases where tenants are afraid for their health, he says leaving and explaining the claim of constructive eviction in court will at least remove any immediate danger. “I can’t guarantee [a judge will agree with you], but I wouldn’t stay there if I didn’t feel safe,'” he says.
While most states have thorough legislation when it comes to habitability, Preston says it’s one of the most common issues he sees from renters seeking assistance from his organization. “The problem is one of enforcement,” he says, citing local and state code enforcement offices that are often underfunded or lacking the motivation to effectively police conditions of rental properties.
You have to pay your rent. Landlords have a right to pursue eviction when they stop receiving rent, regardless of the reason. Some state or local laws will allow landlords to lower the cost of rent or prorate rent for the number of days a unit is unlivable. However, you cannot refuse to pay rent to provoke your landlord to perform maintenance or other duties.
Merbaum explains rent is not a bargaining chip to get what you want from the landlord. “The obligation to pay rent is always independent of the landlord’s obligation to fulfill his duties. So if the air conditioning’s not working, the tenant cannot hold the rent back — the tenant will be in breach of the lease and they can be evicted,” he says.
Georgia is one of many states with a “right to deduct” policy for the tenant, which means if something is broken and you have given your landlord repeated notice and ample time to fix it, you can personally have it repaired or replaced and subtract the cost from your next month’s rent.
However, the right to deduct can be a dangerous game to play. California also has right to deduct policies, and Preston says he often only recommends it as a last resort for tenants seeking repairs, because the landlords can still pursue eviction if they dispute the deduction. A worst-case scenario would leave the tenant with the bill for the repair and without a home as well.
The lease you sign doesn’t surpass the law. In many cases, landlords can be unaware of the specifics of tenant and landlord rights, or they may try to take advantage of the fact that you don’t know your rights. If you sign a lease that includes rules that violate tenants’ rights, the fraudulent policies cannot be enforced by the landlord or law. For example, Merbaum says major repairs needed to make a property livable, like water and plumbing, cannot be placed in the renter’s hands. according to Georgia law. “If it’s in the lease, that’s it’s the tenant’s responsibility, it’s not even enforceable,” he says.
In New York, state law dictates all tenants living in privately owned buildings have the right to sublease their rental unit to another person. This excludes public or subsidized housing, nonprofit buildings, co-ops and tenants with controlled or subsidized rent. Even if your signed lease states you cannot sublease your apartment, that clause of the contract is not legally enforceable, and the landlord cannot pursue legal action against you if you sublease your space.
You should document everything. No one moves into a new apartment planning to get into a fight with their landlord, but it’s best to be prepared for the possibility. “It doesn’t matter what system of laws you’re operating under, if you’re going to try to enforce them at some point, you need to document the situation,” Preston says.
When you move in, photograph every room and note any needed repairs. Also keep dates and documents of every repair request should you need evidence of attempts to fix problems. When you move out, if the landlord tries to charge you for damages you documented when you moved in, you’re far more likely to successfully avoid the fee.
You have advocates who will help. There are countless tenant rights organizations throughout the country to ensure renters have access to the resources and understand the privileges afforded to them by law. For instance, Preston says Tenants Together operates a statewide hotline in California to field renter problems and requests for information.
In the event of discrimination violating the Fair Housing Act, Gaona advises contacting HUD directly, whether it’s the headquarters in the District of Columbia or one of the dozens of local offices nationwide. HUD has its own investigators to look into possible infractions and can pursue violators.
“If HUD investigators see that there was possible violation of the Fair Housing Act,” Gaona says, “they’ll initiate a Secretary-Initiated Complaint, so it’s on behalf of the complainants and on behalf of the public.”