If we pay the balance owed on rent before we go to court can we stay?

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If we pay the balance owed on rent before we go to court can we stay?

We paid half our rent at the beginning of the month and have with held the balance due to major maintenance issues in our home. The main air duct under the house has broken so when the air kicks on it sucks fiberglass insulation into the air and mice have crawled into the vents (you can actually see the feces in the vents). My son and I have actually developed asthma within the last 6 months and our doctors feel there is a direct result of the air. We sent a certified letter about maintenance. She has given us 7 days to be out if we pay the balance before the court date can she still evict us? How long does the process take in my area? 

Asked on August 22, 2011 Tennessee

Answers:

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

Answered 10 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.  The conditions you have described are a health hazard and constitute a breach of the implied warranty of habitability.  When there is a breach of the implied warranty of habitability, the tenant notifies the landlord as you have done and the landlord must make the necessary repairs within a reasonable time.  If the landlord fails to make the necessary repairs within a reasonable time as occurred in your case, 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 stays on the premises, the tenant can withhold rent and defend against eviction.  You are within your rights to withhold rent and defend against eviction given the breach of the implied warranty of habitability.  The breach of the implied warranty of habitability should be asserted by you as your defense against eviction.   Even if you now pay the balance, the landlord might pursue eviction by claiming the rent is late.  Again, your defense is to assert your rights including the right to withhold rent and defend against eviction when there is  a breach of the implied warranty of habitability.  As for how long the eviction process takes in your area, you would need to ask a local landlord/tenant attorney.  It would be advisable to speak with a landlord/tenant attorney to represent you against the landlord in your claim of breach of the implied warranty of habitability.  It would be preferable to find a landlord/tenant attorney to represent you who represents tenants.


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