Do you have a Right to Air Conditioning?
by: Lisa OramWhat are a tenant's rights when the air conditioning breaks?
If the AC in your apartment is on the fritz in the middle of summer, you probably want it fixed yesterday! A few sleepless, sweaty nights will do nothing for your mood when negotiating with the management; however, before you lose your cool completely, be sure to know your rights. Is air conditioning an amenity or a necessity? Can you fix it yourself and deduct the cost from your rent? Who do you call when the landlord just doesn't respond?
The fact is that landlord/tenant law is complex. To answer any of the questions above, or others that may come up in a particular situation, you must delve into complicated legal territory. The information that follows gives a basic understanding of what's at stake and points you in the right direction.
What are your rights when it comes to air conditioning?
Even though heat waves may not make front-page news as dramatically as do earthquakes or hurricanes, extreme heat can be a dangerous killer. The Office of Climate, Water, and Weather Services at the National Oceanic and Atmospheric Administration (NOAA) reports about 175 Americans die from heat-related conditions in a normal year.
In 1995, temperatures in Chicago soared so high that an estimated 700 city residents died during a one-week period in July. More recently, the Earth Policy Institute reports over 52,000 Europeans died in the summer 2003 in "one of the deadliest climate-related disasters in Western history."
Nonetheless, tenant attorney Steven R. Kellman of The Tenants Legal Center in San Diego says, "Functioning air conditioning is usually considered an amenity rather than a requirement of habitable living conditions. If you live in an area that experiences fairly high temperatures or you have a medical condition requiring a functioning air conditioner, the law might look on that differently."
In Houston, where summers are extremely hot and humid, Andy Teas, Vice President of Public Affairs for the Houston Apartment Association, a trade association representing property owners, management companies, developers, and other related professionals in the rental housing industry, says "virtually 100 percent" of apartments come equipped with central air conditioning.
In addition, he says, "Broken air conditioning is the number one maintenance issue we see in summer."
Teas also notes that changing federal energy guidelines make air conditioning repair more difficult than it used to be. "You can't just replace a part or squirt in some Freon," he says. More often these days, the newer, more efficient parts require changing the compressor or making other major changes to upgrade the entire system.
Teas says that in Texas, a landlord's responsibility is to "repair or remedy" any condition that "materially affects the physical health and safety of an ordinary tenant."
"Some judges," Teas conjectures, "will rule that air conditioning in August definitely affects the health and safety of a resident. Some will say that people have lived without AC for decades, so just deal with it."
The relationship between a landlord and tenant is governed by the state in which you live. As a result, every state is slightly - or significantly -- different. Like with divorce and car accidents, don't assume what is true in one state holds in another. Get the facts.
The consumer protection departments of many state governments offer some user-friendly information about landlord/tenant law. Searching landlord tenant law on a state government homepage will usually lead to some helpful information. In addition, searching tenants rights + [the name of a city or state] in a general search engine like Google will also turn up relevant resources. Finally, the US Department of Housing and Urban Development has an interesting list of resources by state.
In addition to state law, cities can regulate rental practices through municipal ordinance. In the state of Wisconsin, for example, landlord tenant practice is governed by several different administrative statues. Wisconsin as a whole does not have a large renter population, but in the city of Madison, where the majority of residents are renters (US Census, 2000), there is an additional set of codes that make tenants' rights stronger. In Madison, landlords pay interest on a security deposit; in Oshkosh, any interest earned stays with the landlord.
Despite differences in the details, in most states a landlord's responsibilities fall under the "warranty of implied habitability." Habitability generally means "conditions that are fit for living," but Bill Deegan, Executive Director of The American Tenants Association says, "There is probably no national standard definition of what this means."
Often a habitable residence is described as one that includes hot water, flushing toilets, non-leaking roofs and walls, heat, doors that lock, and a place to dispose of garbage, among many other things. Habitability is based on safe, sanitary, and secure living conditions; it does not mean perfect or aesthetically pleasing. And, as noted by attorney Kellman above, it does not include air conditioning.
A Word about Leases
A lease is a written document stating the terms of a rental agreement. In some states a written lease is required by law, and in some states it is optional.
Attorney Alberto M. Cardet practices in Miami, Florida where air conditioning is a "big issue." He says that "landlord- tenant relationships are very casual until something goes wrong. "Then it becomes a he-said-she-said argument." As a result, Cardet explains, in many places, including Florida, landlord/tenant law "lives and dies on notice issues" meaning when and how did you let the landlord know the A/C was broken and how long did you wait for him to repair? A good lease will spell out the obligations of both the tenant and the landlord in such cases.
Tenants' organizations or student groups will often have sample leases for review. Knowing in advance what to expect in a lease makes it easier to negotiate. At the very minimum, make sure the lease has full contact information for the landlord and/or management company. A cell phone number alone is not adequate. Make sure you have a postal address, along with an email address, if possible. Ask if there is an office that answers calls 24 hours a day. Who do you call in the middle of the night?
Cardet recommends two additional things a tenant can do at the beginning of a rental agreement to lessen the chance of a repair problem later.
- First, the tenant can request that all major appliances, including the air conditioning, be inspected by a maintenance professional. That way, both parties will have a common understanding about the condition of the provided appliances. Also, if any operational problem or lack of maintenance is revealed by the inspection, it can be addressed at that time.
- Secondly, Cardet suggests that the tenant can insist on a contract with a maintenance company for repairs. He says that even though a maintenance company may be costlier for the landlord, it is easier and quicker "since there is a 3rd party involved, there is no dispute as to how the air conditioner broke, whether it was landlord failure to maintain or abuse/misuse by the tenant."
Attorney Kellman says he advises people who are signing a lease to "take a step back" and think about what is most important in a living situation. It's going to be different for each person, he says. So, if you know you are heat sensitive and will be highly distraught without air conditioning, specify in the lease: "The landlord will maintain the air conditioning in good working order."
"If a landlord is unwilling to put something in writing that matters to you," Kellman suggest, "it's a red flag. A good landlord," he says, "may be more important than a good property."
About air conditioning in particular, Kellman says, "If the A/C system was there at the inception of the tenancy, even without a lease, it is included just as if it were a refrigerator or a stove." A lease, however, could exclude the A/C from maintenance or repairs so it could fail during the tenancy and the landlord may not have to repair it."
In the Heat of Crisis
So, what's a tenant to do?
You are definitely not the first person to have landlord troubles, and you are not alone. Most big cities have a tenants' association, a non-profit organization which provides help to renters. New York City, for example, has at least three: the East Side Tenants Coalition, the West Side Tenants Association, and the citywide Metropolitan Council on Housing.
Tenants groups provide a variety of services including information through publications and programs, helping tenants organize within a building, providing free or low-cost legal counsel, and advocating for tenants rights through a legislative agenda.
Kellman advises strongly that no tenant should take action against a landlord without seeking legal advice first. There's big money at stake for the landlord, he cautions, who is running a business. The tenant, who is in "the business of living," may be inclined to "wing it," but Kellman says it rarely works out. Common sense or something that worked for a friend or something on the internet may or may not apply in any particular case, and could, in fact, work against the tenant's best interest.
"The biggest mistake I see," Kellman says, "is tenants who send mean-spirited, threatening letters to landlords which misinterpret the law and the true legal positions of the parties." Those letters always end up in court, Kellman says, and make a tenant look unreasonable. Then, when the landlord says nicely how hard he tried to work with the tenant - who was uncooperative and inappropriate - the landlord's position is more convincing.
As noted above, state and local law will dictate the specific steps a tenant can take in order to pursue a landlord who is not responding to a known problem. In some states it is OK to withhold rent or to "fix and deduct" but only under very specific conditions.
"Witholding rent is always dangerous for the tenant's case. You have got to make sure you have a strong position," Kellman explains. "You wouldn't test a rowboat after you took it out into the middle of the lake, would you? Get advice first."
Despite the difference between state laws, some practices apply across all tenant/landlord conflicts.
- Consult your lease. Re-read the fine print to clarify what the landlord is responsible for and how you are expected to notify the management of problems.
- Keep a log that documents the history of the problem. After a while, you won't remember which day you called for the first time or whether it's the third or fourth time you've left a message.
- Communicate as much as possible in short, polite letters. It is best to send certified letters and keep the receipt of delivery. Keep copies of all letters you send.
- Always consult a lawyer, a housing counselor, or a consumer affairs advocate before acting against your landlord. Even though it may seem logical to withhold rent or do the repair yourself, doing so can inadvertently hurt your case and reduce your rights.