Full question:
In a commercial lease can the tenant (me) withhold rent for repairs that have not been made by the landlord? He has been notified numerous times - in person, in writing and in telephone conversations. I am a small bakery and there is a water leak in the rear entrance area to my store along with mold / mildew growing on carpet and walls.
- Category: Landlord Tenant
- Subcategory: Repairs
- Date:
- State: Wisconsin
Answer:
An implied term in residential rental leases is the warranty of habitability. If the landlord causes the rental to become uninhabitable or fails to make repairs so that the premises are uninhabitable, a constructive eviction may occur. This may allow the tenant to withhold rent, repair the problem and deduct the cost from the rent, or recover damages. Wisconsin does not have a "repair and deduct" law. Unless the landlord agrees to allow a tenant to withhold amounts for repair, the tenant will be behind in rent for doing so. However, rent may be abated if the premises in uninhabitable for a portion of the rental period. A failure on the landlord's part to correct a problem affecting the habitability of the premises may be cause for termination of the lease when not caused by any fault on the tenant's part.
In general, a warranty of habitability requires landlords to maintain safe and sanitary housing fit for human habitation. The warranty of provides protection against those conditions that materially affect the health and safety of the tenants or those deficiencies that, in the eyes of a reasonable person, deprive a tenant of those essential functions which a residence is expected to provide. "Habitability," for purposes of a landlord's warranty of habitability is not the same as no risk of harm. An apartment can provide adequate shelter and amenities, as promised, and still be a place which presents some risk.
This warranty is implied into all leases and generally requires the landlord to deliver livable quarters at the tenancy's inception and to maintain the premises in a habitable condition throughout the term, and conditions the tenant's covenant to pay rent on the habitable condition of the premises. A landlord is required to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. To constitute a breach of the warranty, the defect complained of must be shown to be of a nature and kind which will prevent the use of the dwelling for its intended purpose to provide premises fit for habitation by its dwellers.
The warranty of habitability is not intended to make the landlord a guarantor of every amenity customarily rendered in the landlord-tenant relationship, but only provides protection against those conditions that materially affect the health and safety of the tenants or those deficiencies that, in the eyes of a reasonable person, deprive a tenant of those essential functions which a residence is expected to provide. "Habitability," for purposes of a landlord's warranty of habitability is not the same as no risk of harm. An apartment can provide adequate shelter and amenities, as promised, and still be a place which presents some risk.
Factors to be considered in determining whether a condition or defect constitutes an actionable breach of the warranty include:
(1) whether the condition violates a housing law, regulation, or ordinance;
(2) the nature and seriousness of the defect;
(3) the effect of the defect on safety and sanitation;
(4) the length of time the condition has persisted; and
(5) the age of the structure.
Lack of hot water or heating may constitute a breach of the warranty of habitability.
A condition which may endanger or materially impair the health or safety and well-being of an occupant is sufficient to violate the warranty of habitability Factors aiding a court's determination of the materiality of a landlord's alleged breach of a residential lease include:
(1) the seriousness of the claimed defects and their effect on the dwelling's habitability
(2) the length of time the defects persist,
(3) whether the landlord received written or oral notice of the defects,
(4) whether the residence could be made habitable within a reasonable time, and
(5) whether the defects resulted from abnormal conduct or use by the tenant.
Additionally, to assert a breach of the implied warranty of habitability except where otherwise provided by statute, the tenant must prove that he or she gave notice to the landlord of the defect or condition, that the landlord had a reasonable opportunity to make the necessary repairs, and that he or she failed to do so.
Please see the following WI statute:
704.07 Repairs; untenantability.
(1) Application of section. This section applies to any nonresidential
tenancy if there is no contrary provision in writing signed by both parties
and to all residential tenancies. An agreement to waive the requirements of
this section in a residential tenancy is void. Nothing in this section is
intended to affect rights and duties arising under other provisions of the
statutes.
(2) Duty of landlord.
(a) Except for repairs made necessary by the negligence of, or improper
use of the premises by, the tenant, the landlord has a duty to do all of
the following:
1. Keep in a reasonable state of repair portions of the premises over
which the landlord maintains control.
2. Keep in a reasonable state of repair all equipment under the
landlord's control necessary to supply services that the landlord has
expressly or impliedly agreed to furnish to the tenant, such as heat,
water, elevator, or air conditioning.
3. Make all necessary structural repairs.
4. Except for residential premises subject to a local housing code, and
except as provided in sub. (3) (b), repair or replace any plumbing,
electrical wiring, machinery, or equipment furnished with the premises and
no longer in reasonable working condition.
5. For a residential tenancy, comply with any local housing code
applicable to the premises.
(b) If the premises are part of a building, other parts of which are
occupied by one or more other tenants, negligence or improper use by one
tenant does not relieve the landlord from the landlord's duty as to the
other tenants to make repairs as provided in par. (a).
(c) If the premises are damaged by fire, water or other casualty, not the
result of the negligence or intentional act of the landlord, this
subsection is inapplicable and either sub. (3) or (4) governs.
(3) Duty of tenant.
(a) If the premises are damaged by the negligence or improper use of the
premises by the tenant, the tenant must repair the damage and restore the
appearance of the premises by redecorating. However, the landlord may elect
to undertake the repair or redecoration, and in such case the tenant must
reimburse the landlord for the reasonable cost thereof; the cost to the
landlord is presumed reasonable unless proved otherwise by the tenant.
(b) Except for residential premises subject to a local housing code, the
tenant is also under a duty to keep plumbing, electrical wiring, machinery
and equipment furnished with the premises in reasonable working order if
repair can be made at cost which is minor in relation to the rent.
(c) A tenant in a residential tenancy shall comply with a local housing
code applicable to the premises.
(4) Untenantability. If the premises become untenantable because of
damage by fire, water or other casualty or because of any condition
hazardous to health, or if there is a substantial violation of sub. (2)
materially affecting the health or safety of the tenant, the tenant may
remove from the premises unless the landlord proceeds promptly to repair
or rebuild or eliminate the health hazard or the substantial violation of
sub. (2) materially affecting the health or safety of the tenant; or the
tenant may remove if the inconvenience to the tenant by reason of the
nature and period of repair, rebuilding or elimination would impose undue
hardship on the tenant. If the tenant remains in possession, rent abates
to the extent the tenant is deprived of the full normal use of the
premises. This section does not authorize rent to be withheld in full, if
the tenant remains in possession. If the tenant justifiably moves out
under this subsection, the tenant is not liable for rent after the
premises become untenantable and the landlord must repay any rent paid in
advance apportioned to the period after the premises become
untenantable. This subsection is inapplicable if the damage or condition
is caused by negligence or improper use by the tenant.
History: 1981 c. 286; 1993 a. 213, 486, 491; 2001 a. 103.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
