By Robert Griswold
Recently, we leased a townhome through a property management company. We were never warned, but apparently the homeowners association had recently settled a major construction defect lawsuit. The repairs were extensive and began within our first 30 days in the townhome. The banging and pounding lasted from 8:00 am to 5:00 pm each weekday and even included jackhammering out our entire garage.The constant noise, dust, and construction debris made the townhome uninhabitable. The property manager denied any prior knowledge and blamed the owner. We think the owner did not disclose this fact, as no one would possibly rent the townhome if they knew of the pending construction. We feel that a rent credit is due us - what do you think? How should we pursue our legal rights?
Property manager Robert Griswold replies:
Based on the facts provided, it seems very reasonable that you would receive a rent credit for the time during your occupancy in which your townhome was uninhabitable due to construction and/or noise. Since you have not made any progress with your verbal communications, I would suggest that you send a written demand letter. If this doesn't work, you should either contact an attorney or file a small claims action. I believe that this is a better response than withholding rent, as the breach of your quiet enjoyment or habitability clause of your lease is different than the standard "repair and deduct" code sections provided in the tenant/landlord laws in most states. Clearly, you have endured an intolerable condition and someone (the owner and/or the property manager) was not honest with you. I would encourage you to pursue this matter. Good luck.
Tenants' attorney Steven Kellman replies:
The landlord knew, or should have known, that extensive repairs were coming. All owners were most likely made very aware of the situation regarding the lawsuit over their property. As a mater of course, they all would have been told about any resolution of the case that would have included such extensive repairs. In your case, you should have been told about the repairs and been given a choice to accept the unit with that understanding or not. You could have even agreed to accept the unit with a rent discount.
I believe you are entitled to a refund of money paid for a habitable dwelling paid for but not delivered. The measure of the refund depends on the severity of the inconvenience. Try to resolve the matter informally. Failing that, a nominal filing fee will buy you entrance to the small claims court where a judge will settle the matter for you.
Landlords' attorney Ted Smith replies:
Not so fast, Steve. Let's remember that although the tenants in this situation are being annoyed by the noise and dust, it's limited to the garage only and during normal business hours. Tenants frequently rush to judgment in declaring a rental unit uninhabitable. The fact is, most of the services supplied to the townhome were unaffected by the construction. Despite the construction, the tenants had, since the beginning, weather protection, plumbing and electrical, heat, and all of the other amenities that give value to the premises - everything is working in this townhome, including the kitchen and bathrooms. I believe the property manager has every right to hold the tenants to the lease, but a modest rental credit might be appropriate based on the dust and noise.
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