Chapter 17-32
TENANT REMEDIES
Sections:
17-32-010 Tenant remedies.
A. Breach of Rental Agreement.
1. If there is a material noncompliance by the landlord with the rental agreement or with Sections 17-24-010(C) and (D) of this title, the tenant may give notice to the landlord specifying the breach and that the rental agreement will terminate on a date not less than fourteen (14) days after receipt of the notice if the breach is not remedied by that time. If the breach is not remedied by the landlord within fourteen (14) days, the rental agreement shall terminate as provided in the notice. The tenant may not terminate for a condition caused by the deliberate or negligent act or omission of the tenant, a member of his family, or other person on the premises with his consent.
2. Except as provided in this title, the tenant may recover actual damages and obtain injunctive relief for any material noncompliance by the landlord with the rental agreement, or with Section 17-24-010(D) of this title. If the landlord’s noncompliance is willful, the tenant may recover such additional costs and fees as a court shall determine and award.
3. If the rental agreement is terminated pursuant to this subsection, the landlord shall return all security and interest recoverable by the tenant under Section 17-24-010(A) of this title and all prepaid rent.
B. Failure to Deliver Possession.
1. If the landlord fails to deliver possession of the rental unit to the tenant in compliance with the rental agreement and Section 17-24-010(D) of this title, rent abates until possession is properly delivered and the tenant may:
a. Upon not less than five days notice to the landlord, terminate the rental agreement and upon termination the landlord shall return all prepaid rent and security; or b. Demand performance of the rental agreement by the landlord and if the tenant elects, maintain an action for possession of the rental unit against the landlord or any person wrongfully in possession and recover the damages actually sustained by them.
2. If a landlord’s failure to deliver possession is willful, an aggrieved person may recover from the landlord an amount totaling not more than two months’ rent, and such damages, costs and fees as a court shall determine and award.
C. Failure to Supply Essential Service.
1. If, contrary to the rental agreement, the landlord fails to supply heat, running water, hot water, electricity, gas or plumbing to the rental unit, and where the condition was not caused by the deliberate or negligent act or omission of the tenant, a member of his family or other person on the premises with his consent, or by the inability of a utility supplier to provide such service, the tenant may give notice to the landlord or his agent or representative, which notice shall request the landlord either to restore such services or, in the alternative, to obtain, at the landlord’s expense, suitable substitute housing for the tenant within the immediate vicinity of the rental unit for temporary use until such time as the services in question are restored.
2. In the event that the landlord fails to restore services or to provide substitute housing for the tenant within a period of thirty-six (36) hours following receipt of notice, then the tenant may:
a. If continued occupancy is lawful (as determined by the city), remain in the rental unit and take such steps reasonably necessary to procure alternative sources of heat or light, or other affected services during the period of the landlord’s noncompliance, and deduct the cost thereof from the rent, which such alternative sources shall fully comply with the city’s codes;
b. If continued occupancy is lawful (as determined by the city), remain in the rental unit and recover damages based upon the diminution in the fair rental value of the rental unit together with such costs and fees as a court shall determine and award; or c. Procure substitute housing during the period of the landlord’s noncompliance for the lease term, whichever is shorter, making good faith efforts to obtain comparable housing at a cost similar to the rent paid by the tenant for the rental unit, where available in which case the tenant shall be excused from paying rent for the period of the landlord’s noncompliance. The tenant may recover the excess cost of procuring substitute housing which exceeds the monthly rent amount, including moving expenses, such other costs and fees as a court shall determine and award. If the tenant proceeds under this subsection, he may not proceed under any subsections for such breach.
3. If the city or any department of the city expends funds on behalf of the tenant for repairs, services or substitute housing, the city shall have a lien for those funds on any amounts recoverable by the tenants from the landlord. This lien may be satisfied by requiring the rents be paid directly to the city until the amount of the lien is fully paid.
D. Failure to Maintain Unit in Good Repair.
1. In addition to the provision in this section pertaining to a failure of the landlord to supply essential services, where the landlord breaches his obligations to render the rental unit habitable and maintain the same in good repair; the tenant may:
a. Where the breach involves a code violation cited by the city, notify the landlord of the intention to withhold from the monthly rent an amount which reasonably reflects the reduced value of the premises of the cost of obtaining compliance, but not to exceed seventy-five (75) percent of the monthly rent. If the landlord fails to correct the condition within seven days after being notified by the tenant; the tenant may, during the time such failure continues, deduct from the rent the state amount.
b. If, after twenty-one (21) days from the giving of notice the matter has not been resolved, the landlord or tenant may pursue available remedies at; law or in equity.
2. A tenant may not withhold rent under this section if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of his family or other person on the premises with his consent.
3. Where the noncompliance condition affects facilities shared by more than one dwelling unit, and the city has issued a citation for the alleged noncompliance as a violation of the applicable provision of the city code, the city may notify all other tenants sharing such facilities, by regular mail, with respect to the implementation of this subsection. Provided, however, that nothing contained herein shall obligate the landlord, his representative or his agent to disclose to the city the names of its tenants.
E. Counterclaim to Action for Possession of Rent.
1. In an action by the landlord possession based upon nonpayment of rent or in an action for rent where the tenant is in possession, the tenant may counterclaim for any amount which he may recover under the rental agreement or this title. In that event, the court may order the tenant to pay into court all or part of the rent accrued and thereafter accruing, and shall determine the amount due to each party. The party to whom a net amount is owed shall be paid first from the money paid into court, and the balance by the other party. If no rent remains due after application of this section judgment shall be entered for the tenant in the action for possession. If the defense or counterclaim by tenant is without merit, the landlord may recover such costs and fees as a court shall determine and award.
2. In an action for rent where the tenant is not in possession, the tenant may counterclaim as provided in subsection (E)(1) of this section, but the tenant is not required to pay any rent into court.
F. Fire or Casualty Damage.
1. If the rental unit or premises is damaged or destroyed by fire or other casualty to an event that enjoyment of the rental unit is substantially impaired, and the fire or other casualty damage was not caused by the deliberate or negligent act or omission of the tenant, a member of his family or a person on the premises with his consent, the tenant may:
a. If continued occupancy is lawful (as determined by the city), vacate any part of the rental unit rendered unusable by the fire or other casualty, in which case the tenant’s liability for rent is reduced in proportion to the diminution in the fair rental value of the rental unit;
b. If continued occupancy is unlawful, immediately vacate the premises and notify the landlord within fourteen (14) days thereafter of his intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating; or c. Agree to accept alternate housing provided by the landlord, if available.
2. If the rental agreement is terminated pursuant to this section, the landlord shall return all security recoverable under Section 17-24-010(A) of this title and all prepaid rent. Accounting for rent in the event of termination or apportionment shall be made as of the date of the fire or other casualty. (Ord. 3122 § 1 (part), 2004)