Is it possible to break my lease due to air quality in my apartment (allergies)?
Full Question:
Answer:
The answer to your question is not clear. A majority of jurisdictions
recognize a warranty of habitability or fitness for human occupancy. This
warranty is implied into all leases and generally requires the landlord to
deliver livable quarters at the tenancy's inception and to maintain the
premises in a habitable condition throughout the term, and conditions the
tenant's covenant to pay rent on the habitable condition of the premises. A
landlord is required to make all repairs and do whatever is necessary to put
and keep the premises in a fit and habitable condition. To constitute a breach
of the warranty, the defect complained of must be shown to be of a nature
and kind which will prevent the use of the dwelling for its intended purpose
to provide premises fit for habitation by its dwellers.
The warranty of habitability is not intended to make the landlord a guarantor
of every amenity customarily rendered in the landlord-tenant relationship,
but only provides protection against those conditions that materially affect
the health and safety of the tenants or those deficiencies that, in the eyes of
a reasonable person, deprive a tenant of those essential functions which a
residence is expected to provide. "Habitability," for purposes of a landlord's
warranty of habitability, is not the same as no risk of harm. An apartment
can provide adequate shelter and amenities, as promised, and still be a place
which presents some risk.
Factors to be considered in determining whether a condition or defect
constitutes an actionable breach of the warranty include: (1) whether the
condition violates a housing law, regulation, or ordinance; (2) the nature and
seriousness of the defect; (3) the effect of the defect on safety and
sanitation; (4) the length of time the condition has persisted; and (5) the
age of the structure.
A condition which may endanger or materially impair the health or safety
and well-being of an occupant is sufficient to violate the warranty of
habitability. Factors aiding a court's determination of the materiality of a
landlord's alleged breach of a residential lease include: (1) the seriousness of
the claimed defects and their effect on the dwelling's habitability, (2) the
length of time the defects persist, (3) whether the landlord received written
or oral notice of the defects, (4) whether the residence could be made
habitable within a reasonable time, and (5) whether the defects resulted
from abnormal conduct or use by the tenant.
Additionally, to assert a breach of the implied warranty of habitability, except
where otherwise provided by statute, the tenant must prove that he or she
gave notice to the landlord of the defect or condition, that the landlord had a
reasonable opportunity to make the necessary repairs, and that he or she
failed to do so.
A landlord's failure to comply with the applicable housing code regulations, a
building code, or a sanitary code can result in a breach of the warranty of
habitability.
In the absence of an agreement to the contrary, the landlord is under no
duty to the tenant to improve the demised premises. Under this rule, an
improvement is considered to be a change in the original construction or
installation in order to incorporate advancements in design. An improvement
changes, supposedly for the better, the original condition of the leased
premises.
