Affirmative Causes of Action

Have you considered all the possible affirmative causes of action for your housing complaint?

  1. Breach of the Implied Warranty of Habitability

  2. 1. Breach of the Implied Warranty of Habitability

    Landlords must make sure that dwellings are kept fit for human occupation.  Tenants often claim a breach when the landlord fails to supply heat or hot water, when the dwelling is infested with vermin, or when there is some other type of persistent unsanitary condition in the home.  Generally, conditions preventing a tenant from carrying on day-to-day living in the dwelling effect a breach of the warranty.

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  3. Interference with Quiet Enjoyment/Utilities

  4. 2. Interference with Quiet Enjoyment/Utilities

    When a landlord is required to supply utilities under a lease or under the law the landlord must provide those utilities.  If he fails to do so, a tenant may bring suit.  Landlords also must take care to prevent other conditions which impede the tenant’s “quiet enjoyment.”  Conditions which reduce the value of the rental to the tenant fall into this category.  Conditions violating the implied warranty of habitability might also interfere with quiet enjoyment, such as vermin infestation.  Wrongfully evicting a tenant or denying the tenant access to a portion of the rental to which the landlord has promised access might also interfere with quiet enjoyment.

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  5. Negligence

  6. 3. Negligence

    Tenants also may bring common law claims of negligence against landlords.  The tenant must always show injury to herself, another resident, or a guest, but the level of negligence a tenant must show varies, causing confusion.  If the landlord makes the repair as a favor (i.e. the landlord is not contractually bound to do so), the tenant may only recover by showing that the landlord made the repair in a grossly negligent manner.  If the landlord has agreed to make repairs as part of the lease, then the tenant can recover upon a showing that the landlord has made repairs in a negligent manner (strangely enough, if the landlord does not make the requested repair at all and injury results, the tenant has only a contract claim).  Finally, if the landlord retains control over the area in need of repair (e.g., a common porch or common area), the tenant can recover upon a showing that the landlord was negligent in her failure to discover or properly repair the condition.

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  7. Negligent Infliction of Emotional Distress

  8. 4. Negligent Infliction of Emotional Distress

    A tenant may also recover for emotional distress caused by her landlord’s negligence.  The landlord need not have acted outrageously, as with intentional infliction of emotional distress; however, the tenant must present objective evidence of her distress and must show that a reasonable person in her place would have been distressed.

    Yes No
  9. Reckless or Intentional Infliction of Emotional Distress

  10. 5. Reckless or Intentional Infliction of Emotional Distress

    Tenants faced with particularly egregious landlord behavior might also bring a claim for intentional infliction of emotional distress in addition to any number of the other available claims.  A tenant can only recover under this theory if the landlord has acted in a particularly outrageous manner, causing the tenant severe emotional distress.  The tenant must show that the landlord knew or should have known that his actions would cause emotional distress.

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  11. Violation of Anti-Discrimination Provisions

  12. 6. Violation of Anti-Discrimination Provisions

    Landlords must not make housing decisions based on a potential tenant’s race, color, religious creed, national origin, sex, sexual orientation, age, genetic information, ancestry, marital status, veteran status, active military status, blindness, hearing impairment, or other handicap.  Landlords also must not run rental advertisements suggesting a preference related to any of the above listed characteristics.  Finally, with a couple of limitations, landlords must not make rental decisions based on the fact that a potential tenant has a child.

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  13. Violation of the “Security Deposit and Last Month’s Rent Law”

  14. 7. Violation of the “Security Deposit and Last Month’s Rent Law”

    When a landlord accepts a security deposit or last month’s rent from a tenant, the landlord must deposit those funds into an appropriate interest-bearing account.  When the tenant moves, the landlord must return any funds due and any accumulated interest to the tenant within 30 days or face suit.

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  15. Violation of the Anti-Retaliation Provision

  16. 8. Violation of the Anti-Retaliation Provision

    Landlords must not retaliate against tenants for organizing tenants’ unions, for reporting violations of laws or codes, or for bringing suit to enforce their rights under the law.  “Retaliation” is interpreted broadly.

    Yes No
  17. Violation of the Consumer Protection Act

  18. 9. Violation of the Consumer Protection Act

    Landlords, like others engaged in trade or commerce, must not engage in unfair or deceptive acts or practices.  Tenants often claim violations of the Consumer Protection Act concurrent with other causes of action, like interference with quiet enjoyment and violation of the “Security Deposit and Last Month’s Rent Law.”  For example, a violation of the “Lead Law” constitutes an unfair or deceptive act or practice.

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  19. Violation of the Lead Law

  20. 10. Violation of the Lead Law

    If there is lead in a dwelling, in the paint or in some other building material, a landlord must inform a potential tenant of that fact.  If a child under the age of six tests positive for lead poisoning and the poisoning is due to a landlord’s failure to comply with the “Lead Law,” the child may recover damages.  Landlords run afoul of this provision if they have failed to take steps to contain or remove lead building materials from a residence where a child resides.  Landlords are strictly liable, meaning that a tenant need not show that the landlord knew of the lead or that the landlord was negligent in removing or containing the lead.

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