Do I Have to Pay Rent if My Landlord Doesn't Make Repairs?

Do I Have to Pay Rent if My Landlord Doesn't Make Repairs?

Last updated: October 2009

The following questions were submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette.  This article was published on September 22, 2009.

Q:    My landlord says I owe rent.  I say that I shouldn’t have to pay what he wants because he doesn’t repair anything.  If he tries to evict me, do I have a defense based on his refusal to make repairs?

A:    Defective conditions can be defense to an eviction for non-payment of rent.  You have to prove that the defects made the place worth less than what you agreed to pay, so that what you’ve paid so far covers the reduced amount of rent you really owe. 

This defense is based on the “implied warranty of habitability.”  That’s a warranty that’s implied in all leases that the rented property is, most broadly, safe and sanitary.  It’s implied by law, so it doesn’t have to be written out.  It therefore exists in all leases, oral or written.

If there’s a housing code, the warranty means the place is in substantial compliance with the code.  If there’s no housing code, it means the place is habitable and fit as a safe and sanitary residence.

The implied warranty of habitability is an example of judge-made law.  It’s not a law passed by the legislature, but the product of appellate court decisions handed down over the years. 

In Illinois, those cases begin about 1972.  The warranty now applies to the rental of single family dwellings, and to multiple-unit apartment buildings.

Proving a breach of the implied warranty of habitability isn’t easy.  Getting a building inspector to testify is a big help, as is having good, clear pictures or video.  You can testify, too, along with anyone else who can describe the conditions.

You have to pin down some basic points:  When the problems began; when and how you notified the landlord of those problems; what exactly the problems are, and precisely how they affect your “quiet use and enjoyment” of the premises.

The trickiest part is proving how the defects should reduce your rent.  Cases say the tenant can testify about how much they think the place is worth, and can state the rent reduction in dollar terms, or as a percentage.

For example, a witness could testify that the defects reduced the value of a $500 a month apartment by $200 a month, or by 40%.  To do that, the witness should be prepared to explain how they come up with that estimate, and what rental experience it’s based on.

A breach of the implied warranty of habitability works as a defense if you prove that the rent you’ve previously paid to the landlord covers the reduced amount of rent you should have been charged. 

Let’s say you’ve paid $500 a month for 5 months, and are being evicted for not paying anything in month 6.  Your defense succeeds if you prove the place is worth no more than $416 a month.  That’s a 1/6th, or 17%, reduction. 

Because the $2,500 you’ve already paid covers the 6 months of reduced rent you should have been charged, you’re not behind in rent, and can’t be evicted for non-payment.

If you’re defending an ex-landlord’s lawsuit that you owe unpaid rent, after you moved out, the defense can reduce what you owe.  Sometimes, it proves you overpaid.

An implied warranty of habitability defense is not a do-it-yourself project.  Besides a knowledge of the law, it requires a careful presentation of witnesses and evidence, to prove serious defects that made your life miserable.  Usually, you must prove big problems like no heat, no water, inoperable appliances, and bug and rodent infestations.


 

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