A leaky roof is annoying at best and can be unsafe at worst.
So if you are dealing with a landlord who is not repairing a leaky roof, you should be aware of whether you can terminate your lease or exercise other rights under your contract with the landlord (or under state and local laws).
Now terminating a lease is no small thing. In most cases, your lease will not allow you to terminate for a minor or trivial reason. But at what point does a leaky roof turn from a minor inconvenience into a major issue that is grounds for termination?
That’s the question we are going to explore and answer. Now the answer may depend on your state’s laws and regulations. Although I can’t discuss every state, I will cover how major jurisdictions like New York, California and Texas address this issue.
If you want to research your state’s landlord tenant laws, check out this page, where I collected the landlord-tenant laws of all 50 states (and D.C.).
Short on time? Here the quick answer:
As a general matter, you can terminate your lease due to a leaky roof if your lease requires the landlord to make this type of repair and they fail to do so or if the leak makes your dwelling unsafe or uninhabitable. Dangerous mold due to the leak is one of the most common factors in determining whether a leak rises to that level.
Introduction to the Implied Warranty of Habitability
Most states have adopted an implied warranty of habitability, which is essentially a promise that tenants should be able to enjoy a dwelling that is livable, safe and sanitary. This warranty applies whether your lease spells it out or not.
If a landlord violates the implied warranty of habitability by not providing a place that is fit for human habitation, then you may have what is called a constructive eviction and can terminate your lease early.
As mentioned above, in the context of a leaky roof, the key is whether the leak is serious enough to be dangerous or to make your house unlivable. Obviously if the leak is huge and causing significant flooding or is creating an unsafe mold situation, the answer is pretty clear.
Now different states have different rules around this, so it makes sense to evaluate your specific laws.
But before you begin exploring your state and local laws, make sure to check your lease first.
Always Check Your Lease
Before diving into a big research project on state and local laws, review your lease and figure out what it says around repairs and maintenance.
Your lease may be quite clear on who is responsible for something like a leaky roof. In many cases, landlords are going to be responsible for repairing these types of issues.
If they fail to fix the issue within the designated timeframe, that would be a violation of the lease, which may be grounds for early termination.
What If My Lease Doesn’t Address the Issue?
If your lease is silent on the matter or it is unclear whether your lease will give you a right to terminate, then you will want to examine your state and local laws.
As mentioned above, we can’t cover every state in this article, but here’s a representative sampling of some major jurisdictions so you can see how some of the larger states handle this matter.
How New York Law Addresses Leaky Roofs
Under the Property Maintenance Code of New York, which lays out minimum maintenance requirements for properties in New York State, the law is clear.
Section 304.1. states that roofing that has defects that admit rain are deemed unsafe and must be repaired. Section 304.7 also states that roofing and flashing must be sound, tight and not have defects that admit rain.
If you report this issue to your landlord and he fails to fix it, you have certain rights. They include the following:
● Withhold rent until repairs are made, as stated in N.Y. Real Prop. Law § 235-b
● Hire a maintenance specialist, then deduct the cost from your rent under what’s called a “repair and deduct” remedy
The above options are nice and likely to help most people in this situation, but if the problem is severe enough it may be grounds for termination of the lease under the constructive termination doctrine.
Want to learn more about this option? Check out Nolo’s article on the topic here.
How Texas Law Addresses Leaky Roofs
Under Section 92.052 of the Landlord and Tenant provisions of the Texas Property Code, a landlord must make a diligent effort to repair or remedy a condition if:
- The tenant notifies the landlord of the condition
- The tenant is up to date on their rent payments
- The condition materially affects the physical health or safety of an ordinary tenant
That last bullet one is the key factor in the context of a leaky roof.
As discussed earlier, the seriousness of the leak (and its impact on health and safety) is going to determine whether that condition is protected under Texas law.
If your situation meets all three conditions and the landlord has failed to repair or remedy the leak (and the leak is not due to the fault of the tenant, their relatives, guests, etc.), then under Section 92.056 of the Texas statute, the tenant has the right to terminate the lease or have the condition repaired or remedied and deduct the cost from their rent.
How California Law Addresses Leaky Roofs
Under California law, a premises will be deemed “untenantable” if it lacks effective weather protection and waterproofing of the roof and exterior walls.
If the landlord is notified by the tenant of this issue, but fails to repair it within a reasonable time after notice, the tenant may make the repair themselves (subject to certain limitations) and deduct the cost of the repair from rent or the tenant may vacate the premises and be freed for their lease obligations.
So, California has pretty tenant friendly provisions in this regard. Of course, certain exceptions to these remedies apply, such as if the leaky roof was caused by tenant, etc.
Ok, what if I didn’t cover your state? You can choose to look your state’s laws if you are a do-it-yourselfer or consult a qualified lawyer to walk you through it for your situation.
If you prefer to have a lawyer assist you, I would try JustAnswer. They boast access to thousands of highly-rated, verified real estate lawyers whom you can connect with via their unlimited chat service.
By clicking the banner below, you can get a one week trial membership for only $5, which you can cancel at any time.
What if Neither the Law Nor My Lease Help Me?
If the law does not give you a way to terminate your lease early and your lease is not helpful in this regard either, don’t give up hope.
You may try the following options:
Negotiate an Early Release With Your Landlord
You may want to negotiate with your landlord about early termination even if your lease doesn’t explicitly provide a termination right in your situation.
In some cases, a landlord may be open to this if you pay a modest early termination fee (which could include some portion of your security deposit).
Another option that is pretty effective is to explore whether they would be willing to let you out of the lease if you can find a new (and suitable) tenant for them to take over the lease or sign a new lease.
I have written a full article on how you can do this here.
A last resort is to abandon the unit and risk being on the hook for the remainder of the rental payments under the lease. It sounds crazy, but in many jurisdictions, the landlord is required to mitigate damages by trying to find a suitable replacement tenant.
Once they do, you will no longer be on the hook for your lease.
But this definitely comes with some significant risk. Although your landlord may be obligated to try to find a replacement tenant, there’s no guarantee that they will able to find someone fast (or at all) if the rental market is weak.
That means you will be on the hook for any remaining rental payments under the lease until they can do so. That could be a lot of money if you have a long time left on your lease.
Your landlord may also report any non-payment of rent to credit reporting agencies and take you to court. These actions can have a serious and negative impact on your credit score and finances.
If none of these work, are there other options? Of course!
Check out my full article on how to break your lease early without penalty for more details. It includes 11 situations where you can terminate early (plus one bonus option that applies in all situations).
Summary
So there you have it, an answer to whether you can break your lease due to a leaky roof, an analysis of state laws in key jurisdictions and some great fallback options if the lease and the law don’t give you a way out.
