The Common Law

Tenant left out in the cold

My apartment's central heating system broke down and instead of repairing the heating system my landlord gave us space heaters. Is this legal? What are my options?


The first step is to dust off your lease and read it to learn exactly what your landlord is contractually obligated to provide. If the terms indicate that your landlord has a duty to provide a dwelling with central heat and pay for repairs and maintenance, your landlord might be in breach of the lease contract. If that is the case you may be able to terminate your lease on the grounds of the breach, ask for compensation for losses suffered, or ask for a rent reduction. However, if you would like the defect repaired you could consider a lawsuit for specific performance so that your landlord stops breaching the lease agreement and instead complies with his or her obligations.

Many leases don't discuss the issue of central heat. In Texas, most residential leases contain an implied warranty of habitability which means a landlord must repair problems that materially affect the physical health or safety of the tenant, even if they aren't directly addressed in the lease. There are many things to consider in deciding whether or not your landlord has breached this warranty, for instance, the nature of the deficiency, its effect on habitability, the amount of time for which it persisted, and whether the defect resulted from normal or abnormal use. If the broken heating system was a result of regular use of the premises, the weather is extremely cold outside, and the space heaters are not providing enough heat or have become a fire hazard, you may have a claim for breach of warranty, in which case, your landlord must make a diligent effort to repair the defect. However, before the landlord makes the effort to repair, you as a tenant must give proper notice of the condition, must not be delinquent on your rent at the time notice is given, and the condition must materially affect the health and safety of an ordinary tenant. If you are certain your landlord has breached the warranty of habitability, you have a couple options. You can either terminate the lease and move, repair and deduct the cost against the rent, or sue for damages. It's disfavored to withhold rent as this will only make the situation more complicated and could result in eviction.

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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KEYWORDS FOR THIS STORY

tenant, landlord, heater, breach of lease, habitability

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