Landlord-Tenant Laws About Rights to Air Conditioning

In Houston, where summers are extremely hot and humid, Andy Teas, Vice President of Public Affairs for the Houston Apartment Association, a trade association representing property owners, management companies, developers, and other related professionals in the rental housing industry, says “virtually 100 percent” of apartments come equipped with central air conditioning.

“Some judges,” Teas conjectures, “will rule that air conditioning in August definitely affects the health and safety of a resident. Some will say that people have lived without AC for decades, so just deal with it.”

In addition to state law, cities can regulate rental practices through municipal ordinance. In the state of Wisconsin, for example, landlord tenant practice is governed by several different administrative statues. Wisconsin as a whole does not have a large renter population, but in the city of Madison, where the majority of residents are renters (US Census, 2000), there is an additional set of codes that make tenants’ rights stronger. In Madison, landlords pay interest on a security deposit; in Oshkosh, any interest earned stays with the landlord.

Despite differences in the details, in most states a landlord’s responsibilities fall under the “warranty of implied habitability.” Habitability generally means “conditions that are fit for living,” but Bill Deegan, Executive Director of The American Tenants Association says, “There is probably no national standard definition of what this means.”

Often a habitable residence is described as one that includes hot water, flushing toilets, non-leaking roofs and walls, heat, doors that lock, and a place to dispose of garbage, among many other things. Habitability is based on safe, sanitary, and secure living conditions; it does not mean perfect or aesthetically pleasing. And, as noted by attorney Kellman above, it does not include air conditioning.

Tenants’ organizations or student groups will often have sample leases for review. Knowing in advance what to expect in a lease makes it easier to negotiate.

At the very minimum, make sure the lease has full contact information for the landlord and/or management company. A cell phone number alone is not adequate. Make sure you have a postal address, along with an email address, if possible. Ask if there is an office that answers calls 24 hours a day. Who do you call in the middle of the night?

Cardet recommends two additional things a tenant can do at the beginning of a rental agreement to lessen the chance of a repair problem later.

• First, the tenant can request that all major appliances, including the air conditioning, be inspected by a maintenance professional. That way, both parties will have a common understanding about the condition of the provided appliances. Also, if any operational problem or lack of maintenance is revealed by the inspection, it can be addressed at that time.
• Secondly, Cardet suggests that the tenant can insist on a contract with a maintenance company for repairs. He says that even though a maintenance company may be costlier for the landlord, it is easier and quicker “since there is a 3rd party involved, there is no dispute as to how the air conditioner broke, whether it was landlord failure to maintain or abuse/misuse by the tenant.”

Attorney Kellman says he advises people who are signing a lease to “take a step back” and think about what is most important in a living situation. It’s going to be different for each person, he says. So, if you know you are heat sensitive and will be highly distraught without air conditioning, specify in the lease: “The landlord will maintain the air conditioning in good working order.”

“If a landlord is unwilling to put something in writing that matters to you,” Kellman suggest, “it’s a red flag. A good landlord,” he says, “may be more important than a good property.”

About air conditioning in particular, Kellman says, “If the A/C system was there at the inception of the tenancy, even without a lease, it is included just as if it were a refrigerator or a stove.” A lease, however, could exclude the A/C from maintenance or repairs so it could fail during the tenancy and the landlord may not have to repair it.”

Kellman advises strongly that no tenant should take action against a landlord without seeking legal advice first.

There’s big money at stake for the landlord, he cautions, who is running a business. The tenant, who is in “the business of living,” may be inclined to “wing it,” but Kellman says it rarely works out. Common sense or something that worked for a friend or something on the internet may or may not apply in any particular case, and could, in fact, work against the tenant’s best interest.

“The biggest mistake I see,” Kellman says, “is tenants who send mean-spirited, threatening letters to landlords which misinterpret the law and the true legal positions of the parties.” Those letters always end up in court, Kellman says, and make a tenant look unreasonable. Then, when the landlord says nicely how hard he tried to work with the tenant – who was uncooperative and inappropriate – the landlord’s position is more convincing.

As noted above, state and local law will dictate the specific steps a tenant can take in order to pursue a landlord who is not responding to a known problem.

In some states it is OK to withhold rent or to “fix and deduct” but only under very specific conditions.