If my landlord refuses to find the cause of a leak in my ceiling, can I get out of my apartment?

I have a leak in my bedroom ceiling. That my landlord has known about for almost 2 years. It leaks when it rains hard. The landlord claims that it is from the people upstairs leaving there window open. We spoke to them and they said there floor is dry and they don’t leave there window open. We called the code enforcement and they came and looked at. They called the landlord and he told them he was going to fix it. But the landlord told us there is nothing that all he can do but put plaster up there and when it rains it will leak. He put plaster up there and the rain just comes through that. I have a 2 year old that shares a room with us. The water has leaked on my bed everytime it has rained and the ceiling has leaked. I want to move out. Is there anything I can do? Also, the landlord will not call the code enforcement people back.

Asked on November 9, 2011 under Real Estate Law, Alaska

Answers:

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

Answered 9 years ago | Contributor

In every lease, there is an implied warranty of habitability which means that the landlord is required 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 is required to respond within a reasonable time by making the necessary repairs.  If the landlord fails to respond within a reasonable time as in your case where the water leak has been occurring for two years, 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 stays on the premises, the tenant can withhold rent and defend against eviction.  Another option would be to sue the landlord for breach of the implied warranty of habitability.  It would be advisable to contact the code enforcement people again to get something in writing that documents the breach of the implied warranty of habitability due to the landlord's failure to make the necessary repairs.

The water leak constitutes a breach of the implied warranty of habitability because it is a health and safety issue.


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