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miss hanna · Sep 5, 2009, 10:31 AM

55 days ago, a panel of our celiling collapsed. Our landlord has done little to fix it. We didn't pay rent for August because he hadn't fixed the hole, we would like to move. Are we free of our contract because he didn't fix the hole?

ScottGem · Sep 5, 2009, 02:48 PM

Does the hole present a health hazard? Have you requested, in writing, that the repair be made? What was the reaction to not paying the August rent?

Generally, you have to file a proscribed process that is based on local law to legally get out of your lease.

This process goes something like this:

1) report the problem to the landlord for repair
2) if the repair is not made on a timely basis, then send the landlord a letter giving him a reasonable time frame.
3) if the repair is major, especially if it's a health hazard, you can give notice that you will be moving because of the breach
4) if the repair is minor you tell the landlord you are having the repair done and will be deducting it from your rent.

miss hanna · Sep 5, 2009, 03:35 PM

The hole is about two feet by three feet, exposing the attic insulation. When the sheetrock fell, if left a mess of vermiculite and dirt. I told the landlord about it immediately. A month later whe nothing had been done, I had the town code enforcer examine it. Then I sent the landlord written communication regarding our unhappiness that the hole hasn't been fixed. He has threatened eviction. So, with these extra details, do you think I am free of the lease?

ScottGem · Sep 5, 2009, 04:20 PM

What the code enforcer say and do? What did your written communication say?

miss hanna · Sep 5, 2009, 04:23 PM

The code enforcer said that the landlord was in violation of 3 town ordinances, and I believe he gave a certain length of time to fix it...

This is the letter I sent him.:

As you may be aware, Maine law gives tenants an ‘implied warranty of habitability’, which means that you, as a landlord, are responsible for keeping our home safe and fit to live in.

That having been said, certain things, such as leaking or fallen ceilings, constitute a violation of this law.

In any instance that there has been a problem with this apartment, we have alerted you immediately. In each instance we have been met with inaction on your part. Most recently, on July 13th, I alerted you to the fallen ceiling panel on the very day the incident occurred. Since that time, your only attempt at rectifying the situation has been your brother Bernie’s, readiness to clean up the mess that was left in our spare room by the water logged panel and the vermiculite that fell with it.

In our personal research, we have found multiple government reports that state repeatedly the hazardous nature of vermiculite, especially the dangers of vermiculite used as attic insulation up until the 1990’s, due to the fact it contains asbestos . Chris and I feel that in light of this our health may be at risk. Directly after this cave in, Christopher’s allergies began to violently flare up. He has been unable to sleep through the night nor breathe through his nose while in the apartment. I have noticed that even I, with minimal allergies, cannot breathe here either, especially when in the spare room.

We have alerted the local authorities to this issue. In fact, hole in the ceiling has already been viewed by the Sanford code enforcer, a copy of his report is enclosed. I have also contacted Pine Tree legal services, as well as several other local lawyers regarding our rights as tenants, and the current condition of this apartment.

Up until this month, we have never missed our month’s rent payment. We have tried to be good tenants. We feel that you should know that we consciously decided to withhold August’s rent payment, not because we cannot afford it, but because we have been unable to get your attention otherwise, and we will continue to withhold our rent until appropriate action has been taken. We request either immediate action regarding the ceiling in the spare room, or that you nullify our contract. We cannot continue live like this; it is not healthy to breath toxic fumes.

We respectfully request that the terms of our lease agreement be null and void, and if you do not comply, we will be seeking further action.

ScottGem · Sep 5, 2009, 07:11 PM

Very good. Just a few more questions. Do you want to move or get the place repaired? When did you send that letter? What was the landlord's response and when did you get it?

miss hanna · Sep 6, 2009, 05:27 AM

I would prefer to move, I don't want to live in a place that the landlord so clearly doesn't care about his tenants. He hasn't had any reaction to my letter but to resend me his letter regarding the eviction notice.

Fr_Chuck · Sep 6, 2009, 05:37 AM

While you may well have the "right" to move you will end up in court most likely, landlord will bill you and sue you for the money for rent, so you end up in court, while you should win, sadl not all courts are all that fair, esp smaller city courts

ScottGem · Sep 6, 2009, 07:07 AM

OK, if you want to move, then send him a notice to the effect that since he has failed to make the necessary and legally mandated repairs, you consider him in breach of the lease and you will be vacating the premises by <insert date>.

As Chuck said, he may try to sue you for the balance of the rent. But, armed with the Code enforcer's report and his notice of eviction, I think you will win.

miss hanna · Sep 7, 2009, 08:55 AM

OK new question, the hole got fixed this morning, it took about one hour. But we already put a security deposit on a different apartment, is there any way to get out of the problem apartment now that the hole is mended? Or are we just stuck?

excon · Sep 7, 2009, 09:39 AM

Hello miss:

I'm going to chime in.. I'm not going to berate you for NOT doing what you COULD have done immediately after the event... But you didn't, and now you're up against a timeline NOT of your own making...

You say you already put down a deposit.. If you've followed ScottGems advice, you sent the letter to the landlord informing him of HIS breach. I would have hand delivered a copy too, but that's neither here nor there...

So, if the stance you wish to take is that HE is in breach, then you're going to need to STICK to it - because you'll probably be explaining yourself to a judge anyway, like the Padre suggested.

Since you're sticking to it, that means you're going to be moving. The fact that they fixed it TODAY, DOESN'T cure the breach since you already acted based upon their breach...

Let's hope the judge sees it that way...

excon

miss hanna · Sep 7, 2009, 09:57 AM

As a footnote, I did inform the landlord immediately of the problem, and I would have hand delivered the letter but I am in Maine and the landlord is in New Jersey. That having been said, I did not wait long to take action, he was just very reluctant to take action. So, even though the hole is mended, the contract was still breached, correct? What will happen if we do just move out, if it goes to court what happens?

ScottGem · Sep 7, 2009, 10:03 AM

You should not have put a deposit down until you informed the landlord that you were vacating. Are you sure all the problems have been fixed and not just patched?

Did the landlord send a notice to vacate (the first step in the eviction process) or just threaten eviction?

excon · Sep 7, 2009, 10:04 AM

Originally Posted by miss hanna

so, even though the hole is mended, the contract was still breached, correct? what will happen in the event that we do just move out, if it goes to court what happens?

Hello again, miss:

Well, there's what happened... and there's what you can PROVE happened. Those aren't always the same thing. I understand you took "action". Did you do it by MAIL? Can you PROVE that you did?? Probably not...

Now, I don't think they documented anything better than YOU so it's going to wind up being a "he said - she said" kind of thing. If it were me, I'd rule in your favor.. 55 days is entirely TOO long to go with a hole in your ceiling - especially when they expect you to pay rent...

But, maybe the judge is a landlord.. In fact, there's a much better chance that he's a landlord than he's a tenant...

So, I don't know who'd win. I wouldn't worry about NOW. I'd move, learn from the experience, and hope for the best. But, the WORST that can happen is you lose... It's only money.

excon

miss hanna · Sep 7, 2009, 10:32 AM

Let's see if I can answer both of you at once...

First off, I haven't received anything but a certified letter with a section of how eviction processes would be started on September 1. The hole has been re sheetrocked, and the roof was re shingled, but the insulation was not replaced at all, so if there's mold up there, there is now going to be a greenhouse effect from the attic getting hot and any remaining water getting heated and evaporating and then it'd be hot and wet up in the attic and mold would blossom out of control...

I am drafting a letter of our notice of vacating the premises, I was going to do it this morning but the carpenter showing up kind of threw me.

In the letter I did send him, the one I posted earlier, I did mention that he was in breach of contract, that the state of Maine awards tenants an 'implied waranty of habitability' that such things as leaking or fallen ceilings would be considered a breach of that.

Do you suggest I send another letter informing him that due to his extreme delay in fixing the problem, we consider him in breach of contract and will be vacating the premise by September 25 (that's when we can move into the new place)?

I'm just so very confused. I have never dealt with such a shady individual as my landlord has proved to be, and I have no background in law. I am tired of him walking on us and breaking the law just because we were unaware of our rights. Did I mention that last winter he forced us to live without heat and hot water and wouldn't turn it on until we signed another lease with a higher rent? That was the only way he would offer us a payment arrangement for the propane we needed. I don't know how much of that was lawful, and now it is too late to seek an answer for that.

I'm just so angry at all of this!

Thank you for helping me.

excon · Sep 7, 2009, 11:25 AM

Originally Posted by miss hanna

do you suggest i send another letter informing him that due to his extreme delay in fixing the problem, we consider him in breach of contract and will be vacating the premise by september 25 (that's when we can move into the new place)?

did i mention that last winter he forced us to live without heat and hot water and wouldn't turn it on until we signed another lease with a higher rent? that was the only way he would offer us a payment arrangement for the propane we needed. i don't know how much of that was lawful, and now it is too late to seek an answer for that.

Hello again, miss:

Yes, it was unlawful... And yes, it's too late to do anything about it.

Please understand, that had you contacted us earlier, and had you done certain things earlier, you wouldn't be up against this situation now. Here's my advice about that.. Every time you enter into a legal contract, you should consider that ALL the actions you take under that contract WILL be viewed by a judge. So, when you DO things, always make it really easy for a judge to figure out exactly WHAT you did, WHY, and WHEN. That's why certified letters are GOOD, and why documenting phone calls with a letter are GOOD. Ok, enough about that...

In my view, your grounds for moving are that he is/was in breach of your agreement AND in breach of the warranty of habitability. Your earlier letter only told him what he did. YOU didn't tell him what YOU'RE going to do.. That should be the basis of the letter Scott said to write, and if you didn't, you better get to it... Send it CERTIFIED. Send another copy by regular mail. Without defending yourself in your letter, cite his breach, tell him that you're leaving on such and such a date, and let's see who blinks...

excon

ScottGem · Sep 7, 2009, 11:31 AM

You should have reported him then. It is illegal to withhold utilities like that.

So, I would send him a letter today. Something this:

As we have previously informed you, the delays in fixing the roof and ceiling created an uninhabitable condition. This condition forced us to seek other lodging. We have found a new place and are hereby informing you that we will vacate this address by <insert date>.

Do not mention the repair or anything else. Just keep it short and simple.

Its probable he will keep your security for unpaid rent or trumped up damages. He may try to sue you for unpaid rental not covered by the deposit. You will have to deal with this once it happens.