Can I get out of a retail lease since the landlordbrokeit by not giving me a working air conditioner for 9 months?

UPDATED: Feb 15, 2012

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Can I get out of a retail lease since the landlordbrokeit by not giving me a working air conditioner for 9 months?

I have a retail lease for my tutoring business that operates primarily when the students are out of school or camp.generally from 3 pm-5:30 pm. When I signed it the landlord/property manager stated in the lease that he would replace the broken air conditioning unit.. Then after I was in he said he was going to install central air conditioning instead. Well the central air conditioning did not work for 9 months. It was over 80 degrees in here after 2:30 for 4 of those spring/summer/fall months in direct afternoon sunlight. I lost students and tutors.

Asked on February 15, 2012 under Real Estate Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

If the air conditioner is still  not working, you may have grounds to terminate the lease--or rather, you more likely would have grounds in the summer again, if the condition is not remediated. The problem is that when seeking to terminate a lease for violations of the implied warranty of habitability, you generally can only do so if the conditions are uninhabitable when you are seeking to terminate the lease. If the A/C has been fixed, you may not terminate--though you still have recourse (see below).

In regards to termination of the lease, the main issues are 1) first, does the lack of A/C render the premises unfit for its intended purpose--and while the lack of A/C *may* do this, it is not definite; it is not clear that 80 degrees makes the premises unusable, for example; and 2) is the premises still uninhabitable or unusable at the time you try to terminate the lease?

However, even if you cannot terminate, there you may be entitled to compensation--rent abatement--for the period of time the premises was without A/C. In brief, say that the lack of A/C impacted you for 4 months; say that you are paying $2,000/month rent; say that the reasonable fair market value of a like space without A/C is $1,000 per month; you could potentially recover $1,000/month for four months, or $4,000.

You should consult with a landlord-tenant attorney about your situation. You almost certainly should sue for compensation for the time you were without A/C; the lawyer can also advise you as to whether you likely can terminate the lease, and guide/represent you in so doing; and if you can't terminate yet, you may also be able to seek a court order requiring the landlord to repair the system.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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