What if the landlord has not made repairs to the property like I asked?
In this case, you could have what the law calls a "counterclaim" if your dwelling unit is not fit and habitable and it's the landlord's fault. Repair issues come up a lot in residential landlord-tenant eviction cases. The landlord has the duty, under state law, to keep the rental premises "fit and habitable." There is no precise definition of what "fit and habitable" means, but at a minimum it includes making sure that the essential services for the house work. "Essential services" are defined by law as being running water, hot water, heat, sanitary plumbing and sewer systems, working electrical systems, and gas (where used for heat, hot water or cooking). The landlord also must supply and maintain any appliances that are necessary for running water, heat, hot water, electricity, and sanitary plumbing and sewer systems. The landlord also must maintain any appliances that the landlord provides (e.g. stove, microwave, refrigerator, air conditioning, etc), unless the rental agreement excludes these appliances. Appliances needed for essential services may not be exlcuded by the rental agreement. The landlord also must comply with local building codes.
But what happens if the landlord does not fulfill its duty to maintain the property? In that case state law gives you, the tenant, a claim against the landlord for money damages as long as you have given the landlord proper notice of the repair issues. These damages can be used to offset any unpaid rent that the landlord is claiming that you did not pay.
You have the right to raise the landlord's failure to maintain the property after notice as what is called a counterclaim in the eviction. The eviction is landlord's claim against you, and the landlord's failure to maintain is your counterclaim against the landlord.
To raise a counterclaim based on the landlord's failure to make required repairs you must file a written answer with the magistrate OR you must personally appear at the magistrate's court and have your verbal statement taken down. Attached at the end of this Lesson is a Counterclaim form that you can fill out to raise a counterclaim. To prove your counterclaim, you need to be able to show (1) what needs repairs, (2) what notice you gave to the landlord about the need for repairs, and (3) what your damages are.
To show what needs repairs, you will need photographs and witnesses who can testify to the condition of the unit.
Damages can include money that you have had to come out of pocket because the landlord did not make the repairs (e.g. you had higher electric or water bills than normal because the heating unit did not work correctly or because some part of the plumbing was leaking, like a toilet or sink). You should gather up copies of bills or receipts to show what you paid out of pocket. Where the lack of repairs have made the unit less valuable, damages also can include the difference between what your rent is and what the unit is actually worth. For example, if you pay fair market rent of $800 but you cannot use part of the dwelling, then the fair market value of the unit may only be, say $500. In this example, tour damages would be $300 for each month that the landlord has not made the required repair after you have given proper notice of the need for the repair.
An Important Word On Notice!
Do you have to give WRITTEN notice? You should give written notice to the landlord for all repair requests. Legally speaking, written notice is only required in some cases, such as where the repair at issue is considered an "essential service" and you want to get damages based on the reduction in the fair market rent. Otherwise written notice is not required by the law. BUT, if you file a counterclaim, you will need to be able to prove when you gave notice and what you said in the notice. If you give a verbal notice, the landlord might dispute that you gave notice or what you said in the notice. So, you should always make repair requests in writing and keep a copy of each request made.
Another reason to give notice in writing is because there is a law that says that if your landlord is suing to evict you for not paying rent and you want to raise repair issues as a counterclaim in that rent eviction case, you cannot do so if you did not give timely notice. Timely notice means that you gave the landlord notice at least fourteen (14) days before rent is due for repairs that don't involve essential services. For repairs involving essential services, you must give enough notice before rent is due to allow the landlord a reasonable opportunity to make emergency repairs needed to provide an essential service. For example, if the air conditioner is not working
A final word of caution about counterclaims
If you raise a counterclaim and the court finds that the counterclaim has no merit and is not raised in good faith, then the landlord may recover, in addition to actual damages, reasonable attorney's fees.
Failure to maintain counterclaims can be technical, so you should consult with an attorney to determine whether or not you have one.