By Robert Griswold
Question: I am a tenant and have many months remaining on my current lease. I would like to break my lease so I can move to an apartment community across town closer to my school. I know it is not the hot season yet, but if my landlord will not fix the air conditioning unit, can I use that as a reason to break the lease?Tenants' attorney Kellman replies:
Generally, you are responsible for the rent through the balance of the lease term. If you vacate before the end of the lease, you may be held responsible for the lost rent on the lease and the costs associated with re-renting the dwelling. Leases may be broken (i.e. terminated) in a variety of ways. In some cases, you may move out without owing anything.
One way to be relieved of the lease is when the landlord commits a material breach of the contract. Another way is when the dwelling has significant habitability defects and, despite your notice to the landlord, the problems remain unrepaired. Functioning air conditioning is usually considered an amenity and not a habitability requirement unless you live in an area that experiences fairly high temperatures or you have a medical condition requiring a functioning air conditioner. In cases where air conditioning is not a habitability requirement but is merely a comfort issue, you would have a claim for damages for the lack of that amenity but the lease may still remain in force. In those cases, you may wish to avail yourself of the repair-and-deduct remedy where you give notice of the problem and if it is not corrected, you repair it yourself and deduct the cost from the rent. Before moving out on a lease or repairing and deducting, seek legal advice since either action could land you in court.
Landlords' attorney Smith replies:
Kellman correctly points out that, generally speaking and in most areas, a functioning air conditioner is considered an amenity and not an item of habitability in the rental. The law has not raised the necessity of air conditioning to its counterpart - a heater - which is an item of habitability. So, the short answer to your question is that you may not break your lease because of the air conditioning problem. You will be held accountable for the balance of the lease up until the point the landlord successfully re-leases the rental to a qualified replacement tenant.
If we assume, for the moment, that air conditioning was an item of habitability, it would still be my opinion that it is not a material breach of the warranty of habitability to rise to the level of constructive eviction. Constructive eviction is a term given to a situation where the premises are so bad that the tenant is allowed to walk away from the lease and consider it null and void without further liability. But, to show constructive eviction as a basis for termination of a lease, you're going to have to present to the court facts of an extreme nature, tantamount to the premises being virtually 100 percent uninhabitable.
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