Getting Repairs Done

Repairs

GETTING REPAIRS DONE - FACT SHEET

Please note - this document is for informational purposes only, and does not constitute legal advice. If you feel you are in need of legal advice, please contact an attorney.

WHAT REPAIRS ARE THE LANDLORD'S RESPONSIBILITIES?

The landlord must keep an apartment healthy, safe, sanitary, secure, and in compliance with local housing codes. Specifically, the landlord is responsible for maintaining and repairing:

· Properly working furnace

· Plumbing

· Electrical wiring

· Locks on doors

· Walls, floors and ceilings (including water leaks or holes)

· Fire doors and fire escapes

· Elevators

· Common areas in multifamily buildings

HOW DO I GET MY LANDLORD TO MAKE REPAIRS?

It can be very frustrating to have a landlord that is unresponsive to your repair requests. Often tenants will make many phone calls to ask for repairs, and the landlord either refuses to make repairs or promises to repair things but never does. This is understandably very frustrating for the tenant, who must live on a daily basis with her home in a state of disrepair.

The best way to start is to make all of your repair requests in writing. You may use the Housing Comes First Request for Repairs form letter, or write your own letter. Make sure you date the letter, include your name, address, and telephone number, and explain clearly what needs to be repaired. If you have already asked the landlord to make the repairs (over the phone or in person) be sure to mention that in the letter. For example, "As I told you during our phone conversations on June 10 and June 15, my hot water heater has not been working since June 9." Keep a copy of the letter. If you are concerned that your landlord will lose your letter, send it certified mail so that you have a signed receipt proving your landlord received your letter.

WHAT IF MY LANDLORD REFUSES TO MAKE THE REPAIRS?

It is always best if you and your landlord can find a way to work together. Sometimes perseverance will be successful. If that fails, and the repairs are necessary for your health or safety or for your building to meet housing codes, you have various options. This fact sheet explains how to sue under the implied warranty of habitability.

OPTION #1: SUING FOR BREACH OF IMPLIED WARRANTY OF HABITABILITY

The Missouri Supreme Court has said the every residential lease has an implied warranty of habitability. A breach of the implied warranty of habitability means that the apartment was so awful that it was too bad to live in, and the landlord essentially evicted the tenant by letting the apartment get so bad. If the judge decides the apartment is really that horrible, she will agree that the landlord breached the implied warranty, that there was a constructive eviction, and the tenant does not have to pay rent for the months that the apartment was in such bad shape (even though the tenant was actually living there, so was not really evicted). The implied warranty of habitability means that when you moved into your apartment, your landlord is giving you a warranty that:

1. Your apartment is habitable and fit for living at the inception of the lease;

2. The apartment will remain in that condition for the entire term of the lease;

3. The apartment will have facilities and services vital to the life, health, or safety of the tenant; and

4. Facilities and services vital to the use of the premises for residential purposes.

You may withhold your rent (you should put it in escrow) and sue the landlord for rent and damages. An escrow account is a separate account where you set aside money for a specific purpose. You must be able to show the court that you had the money for your rent and that you set that money aside and did not spend it on other things. You can do this by opening a separate bank account, by purchasing a money order in the amount of your rent when your rent is due (so that the money order is dated the day your rent was due), or by giving your money to someone you trust to set aside (get a receipt). It is possible to simply leave the money in your own bank account, but you cannot spend the money and you must be able to produce bank statements to prove that you had the rent money and left it in your account.

The tenant may sue for "actual damages sustained which are the "direct, immediate, or proximate and unavoidable consequences of the breach," and for "impaired enjoyment of the premises and consequential damages." The measure of damages is the difference between what the apartment is worth and the rent that was paid. Your other option is to withhold your rent (you should put it in escrow) and wait for the landlord to sue you (action for possession and rent), and then use the warranty of habitability as an affirmative defense (legal term meaning you had a legally sufficient reason for doing what you did, which is otherwise illegal) and in your counterclaim for damages. When a tenant argues breach of the implied warranty of habitability, the tenant does not have to move out. This is the reason suing for breach of the implied warranty of habitability is better than suing for breach of quiet enjoyment (which requires the tenant move out).

It is important to note that the warranty covers items of necessity but not those merely of convenience. The landlord does not insure the safety or comfort of the tenant. You would be shocked at what it takes to win a suit of this nature - things that seem really awful are not enough to constitute a legal breach of the implied warranty of habitability. A breach of the implied warranty of habitability means that the apartment was so awful that it was too bad to live in, and the landlord essentially evicted the tenant by letting the apartment get so bad. Things that courts have said are enough to are: roach and rodent infestation, missing screens, exposed wiring, boiler malfunctions, water leakage, rubbish strewn in hallways, and unstable steps. If the judge decides the apartment is really that horrible, she will agree that the landlord breached the implied warranty, that there was a constructive eviction, and the tenant does not have to pay rent for the months that the apartment was in such bad shape (even though the tenant was actually living there, so was not really evicted).

The problem with the above scenario is that the standard for what is a breach of the implied warranty of habitability is unbelievably high. The apartment must be in really, really bad shape before the judge will agree that it is so bad the tenant does not have to pay rent. And, if the tenant guesses incorrectly and the judge says the tenant should have been paying rent all along, then the tenant can be evicted for having Withheld his rent. Withholding rent, therefore, risks eviction and should only be done with forethought and great care.

To prove a breach of the implied warranty of habitability, you must prove four things:

1. You had a lease for residential property,

2. Dangerous or unsanitary conditions developed after you moved in, which "materially" affected the "life, health, and safety of the tenant,"

3. You must have given reasonable notice of the defects to the landlord; and

4. The landlord must have failed to make the apartment habitable.

If you decide to withhold your rent and sue for breach of the implied warranty of habitability, follow these steps:

1. Send a letter to your landlord, by certified mail, listing everything that is wrong with your apartment. (Click here for sample letter. Include the dates of all the previous times that you have told your landlord about all of the repair problems, and the dates that each thing broke. For example, include things like "my furnace stopped working on November 10. I called and told you about my broken furnace on November 10, November 12, and November 15. My furnace still does not work. Tell your landlord that you will be putting your rent into an escrow account and that you will be happy to pay your rent to him as soon as all repairs have been made. 2. 'Put your rent in escrow (see paragraph above to see how to do that).

3. Have as many people as possible document the condition of your apartment. Call city or county housing inspectors, fire marshals, utility company employees, etc. Anyone who is a professional person who can in verify the condition of your apartment can be helpful. It is best to get dated, written statements from such people, because they may not be able to come to court to testify. Even friends or neighbors can serve as witnesses if they have seen your apartment, have seen you speak with your landlord about the problems, or have witnessed an injury that you or your children sustained as a result of your apartment being in disrepair.

If you choose to sue for breach of the implied warranty of habitability, it is best for you to get an attorney to represent you.

OPTION #2: RENT ABATEMENT

Another possible approach to this situation which tenants have used is called rent abatement. This is often used when the repairs needing to be done are not worthy of a code violation or imminently affecting your health or safety. The argument goes something like this:

"I pay $450 in rent. When I moved in, I bargained for a rental unit that has a refrigerator that works, screens in the windows, clean carpets (which you repeatedly promised me), and free of roaches. It is reasonable to think that paying $450 in rent includes the proper functioning of these items and the things you promised me. Therefore, I will pay full rent ($450) this coming month. However, I am putting you on notice that as of the following month, I will be paying only $400 per month due to the fact that this is all the unit is worth in its current condition." It's always good to put any communications to your landlord like this one in writing.

It's important to remember that anytime you do not pay full rent, there's a risk of eviction. Put the money in an escrow account or money order to prove to the court in an eviction action that you could have paid.

OPTION #3: ARRANGING FOR REPAIRS YOURSELF (REPAIR & DEDUCT)

If the landlord refuses to make necessary repairs, Missouri law says you may arrange on your own to make the repairs.

To arrange for repairs yourself, follow these steps:

1. Fill out the Housing Comes First Request for Repairs letter, or write your own letter and mail it to your landlord. Your letter should include your name and address, a list of the repairs that need to made and how long they have been broken. Ask your landlord to either make the repairs within 14 days (or "as promptly as required in case of an emergency"), or to tell you in writing that he does not intend to make the repairs. Tell your landlord that if he does not make the repairs, you will arrange to have the repairs made and will deduct the cost of the repairs from your next rent. Make sure you keep a copy of the letter for your own files. If you have had difficulty in the past with your landlord 'losing" your letters, mail the letter certified mail. With certified mail, your landlord will have to sign for the letter, and you will get a receipt, which proves the landlord received your letter. Another option is to hand-deliver the letter to your landlord. Take a friend as a witness if you choose to hand-deliver the letter.

2. If the landlord makes the repairs, great! You have been successful! If the landlord refutes the necessity for the repair you are requesting over the phone or in person, ask him to please put it in writing because it is what the law requires.

3. If the landlord does not make the repairs within 14 days and does not respond to you in writing, Missouri law (§441.234) says you may call a professional repair person and arrange to have the repairs done. You must wait 14 days after having mailed the letter to your landlord. You must pay for the repair yourself. You must get a receipt for the repairs. The cost of the repairs cannot exceed $300 or half of one month's rent, whichever is greater. You may only do this once every 12 months.

After you have the repairs done and pay for the repairs, you may deduct the cost of the repair from your next month's rent. Be sure to pay the remainder of your rent on time, include a letter explaining the costs, and include a photocopy of your receipts (blacking out your credit card number if you used a credit card). You may not deduct the cost of repairs until after the repairs have been made. You may not deduct the cost after merely scheduling the work to be done. For example, if you have the repair done on June 20, you may not deduct the cost of the repair from June's rent. You may deduct the cost from your July rent.

4. If the landlord writes to you and says he thinks the repairs are not necessary and you still want the repairs done, you must call a housing inspector and arrange for an inspection. Have a list of problems ready for the inspector to make sure you do not forget anything and to make sure the inspector does not miss anything. Be sure to get a written report from the inspector. If the problems are not a housing code violation, then the law does not allow you to make repairs and deduct the cost. If the problems do constitute a violation of housing code, you may arrange to have the repairs made. Send a copy of the housing report to your landlord along with a letter saying you intend to have the repairs made and will deduct the cost of the repairs from your rent.

You must wait another 14 days (or less if it is an emergency). If the landlord still does not make the repairs, you may call a professional and arrange to have the repairs made. You must pay for the repairs, and they may not cost more than $300 or half of one month's rent (whichever is greater). You may only do this once in a 12- month period. After you have the repairs made, you may deduct the cost of the repairs from your next month's rent. You should ask how much the repair will cost before the work is done, because if it costs more than the allowed amount, you will be stuck with the extra cost! For example, if you schedule a repair for June 15, you cannot subtract the cost of the repair in the June rent - only in the July rent or later. Pay the remainder of your next month's rent on time, include a letter listing the cost(s) of the repair(s), and include photocopies of all receipts.

INSPECTOR NUMBERS

In St. Louis City, call the Citizen's Service Bureau at 622-4800 to arrange for an inspection. If you live in St. Louis county, it is a little more complicated. If you live in a municipality, call your local public works department. If you live in an unincorporated part of the county (not in a particular town), call the St. Louis County Vector Control at 854-6935.

WHAT IF THE PROBLEM IS AN EMERGENCY? OPTION #3

If the problem is an emergency and you do not have time to go to court, you should either do a repair and deduct action (you do not have to wait 14 days if it is an emergency) or you may withhold your rent or a portion of your rent and later defend your action by arguing there was a breach of the warranty of habitability. Unfortunately, simply withholding your rent (which should be put in escrow because it shows the court you were not just trying to skip out on rent) will not force the landlord to fix anything. You should call a housing inspector and ask him or her to inspect your apartment. If the repair problem is a housing code violation, the inspector should write a report saying there is a violation, and instruct the landlord to have the problem fixed.

WHAT IS AN EMERGENCY REPAIR PROBLEM?

An emergency repair problem means one of the following:

· Your hot water heater breaks or you have no running water at all

· Your furnace breaks in the winter

· Your toilet or bathtub/shower do not work

· You have lost other essential services or facilities

· A condemnation of the building or an intent-to-condemn notice is an emergency, since it means the entire building has become unlivable.

· Lead paint has been found in the apartment and children under the age of 6 live in the apartment.

· The water, electricity, or gas has been shut off or will be shut off if the landlord pays for these things.

Be sure to look at your lease to see whether you or your landlord is responsible for repairs.

A landlord cannot evict you or raise your rent for demanding repairs or for calling a Housing Inspector.

Give us a call at the Housing Comes First InfoLine if you have any questions. Good luck!

Last modified: May 24, 1999