If we have been in a lease for 8 months now and are having issues with mold in the home, can we get out of our lease?

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If we have been in a lease for 8 months now and are having issues with mold in the home, can we get out of our lease?

I have spoken to the landlord about this, have pics to prove it, text messages to him to prove it, etc. Can we get out of the 4 months we have left on this lease agreement and get our deposit back? Also, if we have to stay here for time being, is it true I can withhold rent payments till the issues is taken care of? Our family has been in and out of the doctors office quite frequently since moving here and we are concerned for our health as well as our 3 children.

Asked on January 22, 2016 under Real Estate Law, Nebraska

Answers:

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

Answered 5 years ago | Contributor

All residential leases contain a kind of guarantee called an "implied warranty of habitability". Basically, it means that a tenant is required to be given a safe and sanitary place in which to live. If not, then the landlord has breached the lease.
As for mold, it can be a serious health issue. What you need to do first is to call the Health Dpeartment and see if it will send an inspector out to inspect the situation. After that, you have the option of doing 1 of 3 things:  

repair the problem (i.e. remediate the mold issue which can be expensive) and deduct the cost from your rent;
withhold your rent until the landlord repairs the problem;
or, in certain circumstances, break your lease.

If you want to break your lease, you might be able to under the circumstances. However, don't simply move out as that would leave you in breach without establishing your right to do so. And this could leave you liable for monetary penalties. What you'll need to do is to go down to housing court (it's called different things in different places) and ask that an action be commenced based upon the breach of the warranty of habitability. The court will then allow the landlord to try and remedy the situation. You may be relocated for the time it takes them to do so (and the judge may have you pay your rent into an escrow fund). If they cannot fix the mold problem, then you can ask that the court that your lease be terminated and your deposit returned.


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