If your rental is not up to code can you legally break your lease?

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If your rental is not up to code can you legally break your lease?

We signed a 1 year lease and have been here for 2 months. Since moving in we’ve discovered a leak in our roof,  a mold-like substance in the basement, electrical problems and several smaller issues that are also violations. After informing our landlord and having little attention paid to these things, we’ve had an inspector begin a case. At this point the landlord is less than cordial and we’ve begun looking at our options. Is there a way to get out of our lease without paying the remaining rent? Is it legal not to pay rent for a month and tell the owner to use our security deposit to cover it?

Asked on June 6, 2011 under Real Estate Law, Indiana

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

1) All leases have an implied warranty of habitability--a term added to the lease, that the leased premises will be fit for the intended use (residence). A violation of this term, such as with a large leak, major electrical problems,  serious mold conditions, etc., may give the tenant grounds to either make the repairs him/herself and deduct the cost; to sue for  monetary damages; and/or to terminate the lease early w/out penalty. What the tenant can or should do is a fact-specific situation; it's also incumbent generally to have provably (e.g. in writing) given the landlord notice and an opportunity to fix. So you may well have rights,  but should not try  exercising them on your own--doing this wrong can result in substantial liability. You should consult with a landlord-tenant attorney.

2) It's not legal to not pay rent and tell the landlord to use the deposit. As a practial matter, if there were no issues or problems which the landlord could have used the deposit to repair, this may not matter--though again, it is against the law--since the landlord gets everything he or she is entitled to. But if the landlord can assert any other claims against the deposit, then since the deposit has been used up, the landlord may sue you for  that money.


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