If every time it rains my entire apartment floods with 2 to 3 inches of water, can I break my lease and get my deposit back?

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If every time it rains my entire apartment floods with 2 to 3 inches of water, can I break my lease and get my deposit back?

There is a giant hole outside my door that they claim is where most of the water is coming from. When I initially looked at the apartment they said that they would fix it. It has now been almost 2 months and they still claim that they are getting someone to come fix it. My apartment has flooded 3 times this week. Every time I have called the management company to let them know. I think this would be considered an “unlivable” situation. I am afraid that if the water rises too high it could meet the electrical outlets causing a dangerous situation.

Asked on August 15, 2011 New Jersey

Answers:

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

Answered 9 years ago | Contributor

You may be able to proceed under 2 separate legal theories. The first theory as to do with a breach of the "warranty of habitability". This is a warranty (i.e. guarantee) that is implied in every residential lease. It provides that a tenant must be given a safe and sanitary premises in which to live. Accordingly, based on the facts presented: you could terminate your lease; withhold rent until the repair is made; or make the repair yourself and the deduct the cost from your rent. Continual flooding such as you describe would qualify as such a breach.

The second theory that you could potentially pursue is that of "constructive eviction". If there is a water condition that is causing you health and/or safety issues to the point that you must move out, you may have be able to break or lease or at least have a legal claim for any costs you incur (such as a hotel; extra travel time; storing belongings; etc.). You may also be able get a court order allowing you to move back in after the situation has been corrected.  Additionally, there is the potential for you to recover your attorney's fees, if any.  You may also be entitled to other remedies, depending upon specific state law. However, it's not clear from what you have described that the situation is yet severe enough to warrant a claim of constructive eviction. 

Bottom line, you need to consult with an attorney who specializes in landlord-tenant matters. At the very least you need to speak with a tenants right advocacy group. If you attempt any of the above-described remedies you must be certain of your legal rights under applicable state law.  


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