Is not fixing windows that let cold air in in an apartment to where it is 10 degrees at night enough to brake a lease?

My husband and I live in an apartment and our windows are not sealed right and they let all the cold air in the house. We had to have our heat up to 78 most nights and is costing us way to much money to keep going. At night our room will be just as cold as the air outside. Is this enough to brake a lease to move into another place?

Asked on December 6, 2011 under Real Estate Law, Colorado


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

In a case such as this you can possibly proceed under 2 separate legal theories.

The first is what is known "constructive eviction". If the window situation is such that it is potentially driving you to the point of moving out (or actually moving out) , you may have a legal claim for any costs you incur (such a hotel; extra travel time; storing belongings; etc.). Also, there is the possibility for you to recover your attorney's fees, if any.  You may also be entitled to other remedies, depending upon applicable state law. Any photos and other documentation that you may have (e.g. having the unit inspected by the a health inspector) will add to the strength of your claim.  

The second theory as to do with a breach of what is called the "warranty of habitability". This is a guarantee that is implied in every residential lease. It provides that a tenant must be given a sanitary and safe premises in which to live. For such a breach you have several options. You can possibly terminate your lease, as well as withhold rent until the repair is made, or make the repair yourself and the deduct the cost from your rent. A lack of heat would qualify as such a breach. This too will require proof for your claim to prevail.

At this point, consult directly with an attorney who specializes in landlord-tenant cases, or at least speak with a tenants right advocacy organization in your area. If you attempt any of the above remedies you must be certain of your legal rights under state law.  

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