Section Six: Maintenance, Repairs, and Housing Codes

This section of the handbook outlines some of the obligations of tenants and landlords that are required by the housing codes of the various counties and relate to the physical condition of apartments. The obligations listed are general. For specific information as to housing codes, the tenant should contact the appropriate county or city agency. It should also be remembered that the tenant and landlord have other obligations under the lease and the law that are covered under other sections of this handbook. Housing codes typically do not cover items such as furnishings, air conditioning, disposals, or other facilities that might be promised orally or in the rental agreement.

TENANT OBLIGATIONS AND RESPONSIBILITIES

The obligations of the tenant are to:

Keep the part of the premises occupied and controlled by the tenant clean, sanitary and safe. In Baltimore City and most counties, the tenant is specifically required not to overcrowd the apartment and to keep all exits clear at all times.

In Montgomery and Prince George’s Counties the occupant is required to keep all plumbing fixtures clean and to exercise reasonable care in their proper use and operation.

Dispose of all rubbish, garbage and other organic or inflammable waste in a trashcan with a tight fitting lid.

Exterminate insects and rodents if his/her apartment is the only one involved.

Allow the owner to enter at reasonable times to make repairs or changes to meet the housing code standards.

Notify the landlord of deficiencies or needed repairs such as leaky plumbing.

Refrain from deliberately destroying, defacing, damaging or removing any part of the leased premises (and prevent others from doing the same).

LANDLORD OBLIGATIONS AND RESPONSIBILITIES

The landlord is required to:

Keep all public areas (such as walkways, halls, stairs) clean, sanitary, safe and well lit.

Maintain exterior walls and roofs free of holes, cracks or other conditions that might cause leaks or dampness inside the apartment.

Maintain every exterior door, hinge and latch in good condition with approved locking devices (typically a certain size deadbolt capable of being opened without key from the inside).

Exterminate insects and rodents when the problem involves more than one apartment, and keep the building reasonably rat and insect-proof.

Repair cracks and holes in windows.

Repair large holes, cracks, loose plaster or flaking paint on the interior walls, floors and ceilings.

Use only lead-free interior paint.

Install and maintain bathroom floors that are reasonably watertight.

Maintain all electrical and plumbing equipment and furnished appliances (stove, refrigerator, etc.) in good working condition.

Keep all rooms adequately lit and ventilated.

Provide at least one kitchen sink, bathroom sink, flush type toilet, and bathtub or shower with water from an approved source for each apartment.

Supply cold and hot water as reasonably required by the tenant (generally at a minimum of 120-130 degrees F).

Provide heating facilities capable of safely and adequately heating all useable rooms. Minimum temperatures during winter conditions are set at 70 degrees F. for Prince George’s County, 68 degrees F. for Montgomery County, and 65 degrees F. (day)/60 degrees F. (from midnight to 5 A.M.) for Baltimore City.

Supply rat proof receptacles for rubbish and garbage and arrange for frequent removals.

Keep exits clear and maintain fire safety equipment. Smoke detectors are also required for all apartments in Montgomery County and in all buildings having three or more units in Prince George’s County.

Provide screens for windows and doors opening to the outside for protection against rodents and insects. NOTE: Housing codes for different areas vary considerably on the screening problem; some do not require screens and others allow exceptions for the upper stories of high-rise or other buildings where screens are deemed unnecessary by the housing officers.

Display the current rental license in the lobby or rental office. Baltimore City requires the landlord in a multiple dwelling building to post the name, address and phone number of the owner or other responsible person in a conspicuous place. Prince George’s County also requires the landlord to post in the rental office a sign noting the existence, address and phone number of the P.G. Landlord-Tenant Commission.

GETTING REPAIRS ON SUBSTANDARD HOUSING

In the absence of an express agreement, the landlord does not have any general duty to the tenant to make repairs. Although most housing codes require the landlord to make minimum repairs in order to comply with the required standards, the landlord need not make any other repairs unless s/he agrees to it in the rental agreement (see Section 3). Even if the landlord so agrees, and s/he later breaks that promise by not making repairs, the tenant may not withhold rent without following a very specialized procedure (see Withhold Rent below).

The tenant should consider the following options if s/he is faced with living in a substandard apartment.

1) WRITE THE LANDLORD
If the tenant feels that his/her apartment or building contains housing code violations or any other defects, the first step is always to inform the landlord in writing and ask him/her to correct it. If the apartment has a manager and an owner, the request letter should be sent to both. The tenant should always keep a copy of all such correspondence with the landlord or his/her agent. While a phone call might be sufficient for some responsive landlords, a certified letter is better because it provides documentation as soon as the problem arises. The letter should clearly state the nature of the problem and that the un-repaired condition violates housing codes (if applicable).

The tenant should then allow the landlord a reasonable amount of time to make the necessary repairs, depending on the seriousness of the problem. If discussion with the landlord fails, a complaint should be filed with the proper housing code enforcement agency.

2) FILE A HOUSING CODE COMPLAINT
The obligation of the landlords to repair and maintain apartments according to the minimum standards of the housing codes is owed to the city or county, not the individual tenant. As a practical matter, the tenant may seek compliance with housing codes by making a complaint to the code enforcement agency. Again it is better to also write a letter to the proper authority, rather than just making a phone call. The letter or phone call should explain the defect and your previous unsuccessful efforts to get the landlord to fix it.

If the problem is serious (rats, roaches, plumbing defects, or a threat to health or safety), the tenant should call the public authorities immediately and not delay in waiting for the landlord’s casual response.

After receiving the tenant’s complaint, the local agency will make an appointment to visit the apartment and verify the complaint. The tenant should be present at the scheduled time and should show the inspector the specific problem reported. If a violation is found, the local agency will order the landlord to make the repairs necessary to correct it. If the landlord still fails to comply, s/he may be subject to criminal penalties, loss of the rental license or an injunction to fix the defect.

The following agencies may be contacted to file housing complaints. If your particular county or city is not listed consult Section Eleven: Additional Resources For Tenants.

Prince George’s County
Property Standards Division
P.G. County Dept. of Environmental Resources
1220 Carraway Court, Suite 1050
Landover, MD 20785
(301) 883-6100

Baltimore County
Baltimore Code Enforcement Office
111 W. Chesapeake Ave.
Towson, MD 21204
(410) 887-4032

Baltimore City
Baltimore City Department of Housing and Community Development
Code Enforcement Office
417 East Fayette Street, Suite 1301
Baltimore, MD 21202
(410) 396-4176

The effectiveness of this tenant remedy will of course depend on the efficiency and the number of staff of the agency of the particular jurisdiction, but to date the tenant must rely on the agency and cannot seek to enforce the code privately.

3) WITHHOLD RENT
If the condition of the apartment is very bad, the tenant may be justified in withholding rent from the landlord and paying it into court instead. If the proper procedure has been followed, the landlord will not be able to collect this rent money until the repairs have been made. This procedure, which is called "rent escrow," is available under Maryland law, but is subject to city or county rules that override the state law. For example, in Prince George’s County, the Director of the Landlord Tenant Office has the power to set up a rent escrow account, but only after certain preliminary findings have been made.

The tenant is strongly advised to consult an attorney before attempting to withhold rent in escrow. At the University of Maryland, students should consult the Student Legal Aid office in the Stamp Student Union. In order to justify withholding of rent, the defect must be one that presents "a serious and substantial threat of danger to the life, health and safety of the occupants." In other words, minor repairs or aesthetic problems such as worn rugs, cracks in walls, peeling paint, or broken air conditioning, are not grounds for rent escrow.

The tenant may use the rent withholding procedure if any of the following conditions exist in his/her apartment:

• Lack of hot or cold water
• Lack of heat, light, electricity
• Lack of adequate sewage disposal
• Infestation of rats or mice (except in one-family buildings)
• Presence of lead paint in the apartment
• Serious structural defects (such as a fallen bathroom ceiling)
• Existence of a fire hazard

Of course, the condition may not be the fault of the tenant. For example, the tenant cannot complain if s/he has no heat, light, electricity or water because s/he has not paid the utility bills or has refused the landlord entry to make repairs.

Before the tenant can withhold rent, s/he must first send a certified letter to the landlord describing the problem and allow the landlord a reasonable time to correct the situation. Thirty days is usually considered reasonable unless the situation is urgent. After sending this letter, the tenant should seek legal advice concerning the proper court or agency to which s/he should pay the rent. The tenant must have all of the rent owed available at the time s/he goes to court. If the court or appropriate agency finds that a serious and dangerous condition does in fact exist, it may order the landlord to end the lease, return the tenant back rent, reduce future rent, or have the repairs made out of the escrow money already paid into court. The money may also be returned to the tenant if the repairs are not made within six months from the first payment to court.

Note that the rent escrow procedure can be used in two ways:

• The tenant may start the legal action against the landlord who has failed to repair a serious defect.
• The tenant may use the escrow process as a defense against the landlord’s claim for rent and eviction.

In order to present a successful defense, however, the tenant must have all the back rent available for the court and must show that one of the "serious and dangerous" types of conditions exists.

4) MAKE THE REPAIRS YOURSELF
Tenants may wish to make the repairs themselves, especially if the problem is minor or the previous tactics were unsuccessful. Some landlords may be willing to pay for materials, but the tenant should get a written statement from the landlord agreeing to reduce the rent before buying the materials. Occasionally, the landlord may agree to pay a repair bill sent afterward by the tenant, but this is risky without a prior agreement.

It is illegal in Maryland for a tenant to make repairs and deduct the cost from the rent without prior permission from the landlord. (The only exception is in Baltimore City where such repair-and deduct may be allowed under emergency circumstances. Legal advice should be sought before using this method). The tenant who attempts to repair and deduct costs from the rent risks eviction for non-payment of rent. However, if the tenant makes justified repairs (for example, where the landlord had a duty under the lease or housing codes to correct the problem), s/he may be able to later sue the landlord in Small Claims Court to recoup the expenses.

5) MOVE OUT IF THE APARTMENT IS DEFECTIVE
Unless the defective condition falls within one of the following special situations, the tenant will not be generally be justified in moving out because of substandard conditions. The tenant who moves out without justification remains liable for rent through the rest of the lease period (See Section 7-Moving out Prematurely).

The landlord’s failure to make essential repairs may be so serious that the court will apply the doctrine of "constructive eviction" and allow the tenant to move out. Courts have developed this rule to release tenants from lease obligations when the apartment is no longer fit to live in due to circumstances under the control of the landlord. In order for the rule to apply, the following conditions must have occurred:

• The landlord acted or failed to act in some way that seriously interferes with the tenant’s normal use of the apartment.
• The defect caused must be of a grave and permanent nature and must make the apartment unfit for occupancy.
• The tenant has actually moved out because of the defect within a reasonable time after it occurred.

If these conditions occur, the courts consider the lease terminated and the tenant no longer must pay rent. The tenant in this case will have a good defense if the landlord later sues him/her for rent.

Problems: The courts have placed strict limitations on this reason for moving out, and have recognized "constructive evictions" only for very serious omissions of the landlord. For example, the landlord’s failure to repair faulty plumbing after notice by the tenant, which results in a stench and generally an unlivable apartment, may meet the requirements for a constructive eviction. But the mere temporary failure to supply electricity or heat may not be enough.

A second problem is that the tenant must first move out and then run the risk that a court might later disagree with the tenant that the reason for moving out was due to a sufficiently serious and permanent condition. If a court decides against the tenant, s/he must pay back rent for an apartment s/he has not lived in for several months. (In this respect the rent escrow laws are a much less risky process. A court may decide against the tenant and s/he may have to pay back rent, but s/he has at least lived in the apartment for that period of time).

As a result of these problems, constructive eviction is not a very effective way to solve the problems of substandard housing. It can only be useful for the tenant who has a good case for moving out, who is willing to bear the inconvenience and expense of moving out and has located other suitable housing.

6) SUE THE LANDLORD FOR BREACH OF WARRANTY OF HABITABILITY (Baltimore City Only)
A local law in Baltimore City states that there is an implied promise by every landlord that the premises are "fit for human habitation." This warranty of habitability, as it is called, means the apartment may not have any conditions that endanger the life, health or safety of the tenant. Typical conditions to which this law applies include: an infestation of rats, mice, or vermin; lack of running water; lack of heat or electricity; lack of adequate sanitation. Other defects or housing code violations may also be covered if they are equally severe.

If one of these conditions occurs, the tenant may sue the landlord for breach of contract. In this legal action, the tenant may request damages (such as moving expenses) or may get back all rent and deposit money paid during the time the defective condition continued. Note that this warranty is continuous and that the tenant can sue on these grounds anytime during his/her occupancy.

However, there are a number of limitations on this type of suit against the landlord:

• The landlord must first have received either a certified letter from the tenant (stating the problem and requesting action) or a violation notice from a government agency.
• The landlord had a reasonable period of time after notification to repair the defect.  More than 30 days is generally considered unreasonable where conditions are dangerous.
• The defective condition may not be the fault of the tenant or his/her family or guest. For example, if the tenant unreasonably refused the landlord entry to repair the problem, the tenant will lose and will be required to pay court costs and attorney’s fees for the landlord.  

This remedy may be used affirmatively by suing the landlord directly or defensively by defending against the landlord’s suit for nonpayment of rent. The defense may be successful even if the landlord did not receive a certified letter or a violation notice if s/he actually knew of the problem (through a phone call from the tenant, for example). NOTE THAT THIS PARTICULAR REMEDY EXISTS ONLY IN BALTIMORE CITY, where it may not be waived by any lease agreement.

7) ORGANIZE OTHER TENANTS
As discussed in the final section on tenant organizing, many positive improvements in substandard housing can be accomplished through collective efforts of tenants with the same problems. While the individual tenant may struggle through these remedies merely to get minimal compliance with housing codes, a strong tenant’s association can successfully bargain with the landlord for better maintenance and fairer treatment at his/her own level.

Instead of complaining individually, find out if your neighbors have the same or similar problems. If so, make a list of all the violations, present it to the landlord, and demand a meeting. If s/he does not make the repairs in a reasonable amount of time, take the list to the housing inspectors or consider other group actions to exert economic pressure on an unresponsive landlord. These methods are far more effective in getting all of the violations fixed. (See Section 10 on Tenant Organizing).