Maintaining a Dwelling in a Habitable Condition
By Kyle Cirac
When a landlord fails to maintain a dwelling in a habitable condition, the tenant has certain remedies available and the landlord has obligations to the tenant. However, the tenant must comply with the relevant provisions in Chapter 118A of the Nevada Revised Statutes to properly assert their remedies.
A landlord is required to keep a dwelling in a habitable condition at all times during the tenancy. A dwelling is considered uninhabitable if it violates provisions of housing or health codes concerning the healthy, safety, sanitation or fitness for habitation or if it substantially lacks (1) effective waterproofing (including roof, walls, windows, and doors), (2) plumbing facilities, (3) hot and cold running water, (4) sewage system, (5) adequate heating, (6) electricity, (7) adequate garbage receptacles, (8) clean and sanitary buildings, grounds and appurtenances, (9) floors, walls, ceilings and stairs in good repair, and (10) ventilating, air-conditioning and other facilities or appliances in good repair, if supplied or required to be supplied by landlord (NRS 118A.290(1)).
The landlord may not be required to provide certain services if the rental agreement requires the tenant to complete specific repairs, maintenance, or remodeling. However, the agreement must have been made in good faith and must not diminish the obligations of landlord to other tenants in a shared premises (NRS 118A.290(1)).
If the tenant believes that the landlord has failed to maintain the dwelling in a habitable condition, the tenant must give the landlord written notice specifying each failure and requesting the landlord to remedy the failure(s) (NRS 118A.355(1)). If the tenant gives the proper written notice to landlord, and the landlord does not remedy the failure or make a reasonable effort to do so within 14 days after receipt of the notice, the tenant may (1) terminate the rental agreement immediately, (2) recover actual damages, (3) apply to the court for relief, or (4) withhold rent (NRS 118A.355(1)). Any rent withheld by the tenant must be deposited into an escrow account maintained or approved by the court (NRS 118A.355(5)).
If the landlord has failed to provide an item or service which is deemed essential, the response time is shortened to 48 hours, excluding weekends and holidays (NRS 118A.380(1)). The statute characterizes heat, air-conditioning, running water, hot water, electricity, gas, and a functioning door lock as “essential” items or services.
The remedies for a failure to provide an essential item or service include (1) procuring reasonable amounts of essential items or services and deducting their actual and reasonable cost from the rent, (2) recovering actual damages, including lack of use of the premises, (3) withholding rent, or (4) procuring other comparable housing and recovering the cost in excess of rent which is abated (NRS 118A.380(1)). If the tenant intends to withhold rent, they must be current on the payment of rent at the time of giving written notice (NRS 118A.380(4)).
A tenant is not permitted to assert these remedies if the condition was deliberately or negligently caused by the tenant, a member of tenant’s household, or another person on the premises with the tenant’s consent (NRS 118A.380(5)).
When a tenant gives written notice to the landlord of a problem, the landlord may not, in retaliation, (1) terminate the tenancy, (2) refuse to renew the tenancy, (3) increase rent, or (4) decrease essential items or services (NRS 118A.510(1)). If a landlord takes any of these actions after receiving notice from the tenant of a failure to maintain the premises in habitable condition or to provide essential items or services, it may be seen as retaliatory. However, the landlord’s actions are not retaliatory if: (1) the violation was caused primarily by lack of reasonable care by the tenant, a member of tenant’s household, or another person on the premises with the tenant’s consent, (2) the tenancy was terminated for cause, (3) compliance to repair the violation requires tenant to vacant the dwelling, or (4) the increase in rent applies in a uniform manner to all tenants (NRS 118A.510(3)).
If you have questions about maintaining a dwelling in habitable condition, what constitutes an essential item or service, or retaliatory conduct by a landlord, contact an attorney.
* The foregoing information is of a general nature. Landlords and tenants should contact their legal counsel with questions for advice concerning specific situations.