Is there anything we can do to breakour lease if our apartment is now too small?

Leased our apartment 6 months ago. My wife became unexpectedly pregnant the month after we moved in and this apartment suddenly became extremely cramped, especially with family on the way from China to assist with the baby. Our landlord does nothing to assist us and has left many things broken; the most important being our upstairs toilet which has been out for 3 months despite our calls. Now that I’ve told her we want out she no longer takes my calls and we’re stuck scratching our heads.

Asked on October 18, 2011 under Real Estate Law, Alabama


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

The apartment being too small is NOT a valid reason to break your lease.

The toilet not being repaired after three months is a different matter.  In every lease, there is an implied warranty of habitability, which requires the landlord to maintain the premises in a habitable condition by complying with local and state housing codes.  When there is a breach of the implied warranty of habitability, the tenant notifies the landlord (as you have done) and the landlord must respond within a reasonable time by making the necessary repairs.  When the landlord fails to respond within a reasonable time as occurred in your case with the toilet, the tenant has the following remedies:  the tenant can make the repairs and deduct the cost from the rent or the tenant can move out and terminate the obligation to pay rent for the balance of the term of the lease or if the tenant decides to stay on the premises, the tenant can withhold rent and defend against eviction.  Another alternative is to sue the landlord for breach of the implied warranty of habitability.  The toilet not working is a health issue and constitutes a breach of the implied warranty of habitability.

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