If we have mold and sewage smells from a back up, do we have to pay to transfer to a new apartment?

I have had consistent problems with mold since I moved in 3 months ago. Just this last week we had a main sewage back-up that soaked our carpet with sewage water. We asked our landlord if we could move to a new unit and they said that we have to be halfway through our lease, pay a new deposit, and a $125 transfer fee. We are concerned for our health. Is there anything we can do about this?

Asked on August 20, 2011 Indiana


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 the landlord is required to maintain the premises in a habitable condition by complying with state and local housing codes.  When there is a breach of the implied warranty of habitability, the tenant notifies the landlord and the landlord is required to respond within a reasonable time by making the necessary repairs.

When the landlord fails to respond within a reasonable time to a breach of the implied warranty of habitability, the tenant can either make the repairs and deduct the cost from the rent or 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.

You should not be charged a transfer fee, pay a new deposit, and wait until you are halfway through the lease when there is a breach of the implied warranty of habitability. You can sue the landlord for breach of the implied warranty of habitability. 

The mold and sewage are health hazards and constitute a breach of the implied warranty of habitability. 

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

All states have laws requiring the landlord of rented property to provide safe and habitable units for tenants. What you have written about is a clear failure of a safe and habitable unit provided by your landlord. Your landlord's response to your request is insensitive and unacceptable.

You need to contact your local health department as well as the building and permit department in the town where you live, advise the person who you speak with about the situation and request an inspection of the unit immediately.

There is a good chance that the landlord may be cited and be required to do further clean up of the unit. If so, you will have an opportiunity to end your lease of the unit rented and get another unit in the same complex or elsewhere. You have no obligation to pay any additional fee to your landlord for moving into another unit in the complex. In fact, the landlord should be giving you a rebate of your monthly rent for the problems you encountered.

Good luck.

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