When does the Implied Covenant of Quiet Enjoyment kick in?
April 1, 2019 11:58 AM   Subscribe

TL;DR: Apartment flooded and was under construction for two weeks. Constant workmen coming and going for 9+ hours a day. It doesn't feel right that I’m paying the same rent I always do for half a month of “unwanted roommates,” noise, mess, and smells. I work from home and this has been incredibly disruptive. It seems like this breaks the Implied Covenant of Quiet Enjoyment. Any suggestions for attempting to get partial reimbursement of rent from my property manager?

(Sorry for the wall of text, & I hope this is an appropriate place to post this, it is half legal / half home)

Two weeks ago a water line in my ceiling broke and flooded my bathroom, walk-in closet, and the master bedroom carpet.

It’s been a long haul—the major construction was finished 8 days later and it was inspected by maintenance the next day.

The day after that I got a phone call telling me someone was coming to clean THAT DAY (Friday) and Monday (today).

All told, my apartment has been under construction / maintenance for 13 days. Aside from weekends there have been workmen in my living space every day but one (and they had asked to come that day, too, I just said no).

I work from home. I have a dog who I can’t leave alone with workmen coming and going for 9+ hours a day. I don’t have the resources or friends to provide doggie daycare.

My entire life has been rearranged to work around the workmen and their schedules (starting as early as 7am and leaving as late as 7:30pm).

It’s been loud, dusty, and smelly (paint and turpentine). There’s still plaster chunks and dust everywhere. I rented a wet vac to take care of the master bedroom carpet myself because they didn’t bother to dry it out.

I was locked out of my bedroom with no notice and couldn’t access medicine, towels, or clean clothes for several days.


I pay a pretty healthy chunk of money for my rent and it doesn’t seem right that I should have to pay what I always do—two weeks of my life has been upended.

I assume that there’s no legal recourse here, the lease is clear that the building isn’t liable despite being at fault—but when does the Implied Covenant of Peaceful Enjoyment kick in? This has been much more than a mild annoyance.

Does anyone have any insights into how I should try to go about getting part of my rent reimbursed / wording for a letter to management?

This may be one of those shitty life experiences that I just have to let go, and I’ll accept it if that’s the case. But first I figured I’d try to get some insight from other people.

P.S. I tried getting advice from a certain other forum about this problem, and all I got were three suggestions of “you should have had renters insurance,” which 1) I do, and 2) doesn’t apply to this situation as I miraculously didn’t have any property damage.

Thank you, MF!
posted by seesaw to Law & Government (15 answers total) 1 user marked this as a favorite
Where are you located?
posted by brainmouse at 12:08 PM on April 1, 2019 [5 favorites]

Have you talked to your property manager at all yet? I have no insight on your legal rights, but in a similar situation, I told my landlord about the disruption and they voluntarily gave me a month of free rent. If you're in a major city, there should be a tenants' rights org that can offer specific advice on your rights.
posted by pinochiette at 12:21 PM on April 1, 2019 [3 favorites]

Your landlord probably doesn't have an obligation to reduce your rent for what you yourself agree are necessary emergency repairs. At least in NYC they would not.

That said always worth asking?
posted by JPD at 12:25 PM on April 1, 2019 [5 favorites]

Forgot to mention I'm in Austin, TX.
posted by seesaw at 12:27 PM on April 1, 2019

Depending on your renter's insurance policy, it might cover alternative lodging if the apartment is unlivable. At the least the days when you were unable to access the bedroom seem to fit that description. Two years ago i was impacted by a plumbing leak that required the entire place to be torn apart to remove carpeting, drywall, etc. and I was reimbursed for living expenses until I was able to get into a new place.

What does your lease say about habitability and so forth? Also, just because your lease says they're not liable doesn't necessarily mean they're not actually liable, depending on your state and local laws they may not actually be able to get rid of their liability that way. (I am, of course, not a lawyer and definitely not your lawyer.)
posted by jzb at 12:28 PM on April 1, 2019 [1 favorite]

"Quiet enjoyment" never means what people would like it to mean, unfortunately.

This will be state-by-state but even in a (relatively) tenant-friendly jurisdiction like NY it's unlikely that necessary emergency repairs would be considered to violate the covenant. And, honestly, most people would be glad to have the inspection and the post-repair cleaning done right away!

The one point on which I think you might have a good argument is being excluded from the bathroom. Again, state by state, but not having bathroom access would certainly over the long term mean that the unit was not habitable for that period of time. I think a request to your landlord for a rent reduction related to those days would not be unreasonable. (Also, the cost of renting the wet vac, assuming the carpet is wall-to-wall.) Unfortunately, the value of such a rent reduction will almost certainly not add up to the cost of suing for it, so you are reliant on the landlord's wanting to keep you.

Depending on your state and the contract, the ultimate remedy for a breach of rental contract by the landlord may be voidability. Is that really what you want?
posted by praemunire at 12:55 PM on April 1, 2019 [6 favorites]

Reading your question, your problem does not seem to be that you think your landlord should have reacted to the flood more quickly or conducted construction or cleanup in a different way, right? It’s more that the necessary repairs, which the landlord got right on top of, were invasive and disruptive to you. That does indeed suck, especially when you work from home. But a burst water line is a big deal and can wreak extreme havoc. Your landlord did what he or she needed to do to get your place back in good condition as soon as possible. It just really disrupted you along the way. That’s the flood’s fault, though, not your landlord’s.

Think about how much money you would want refunded. Is that amount worth having to hire a lawyer? Worth spending another few weeks of your life disrupted, dealing with court, and worsening your relationship with your landlord?

No harm in sending your landlord an email asking for a partial refund due to the disruption, though! I’d just also keep in mind that you have a landlord who sprang into action to get your place fixed when there are lots of landlords who would have been much worse about it.
posted by sallybrown at 1:05 PM on April 1, 2019 [6 favorites]

I would politely ask for rent abatement for two weeks or whatever length you need in a friendly, firm, objective letter that sticks to the facts. I would also expect to hear "no" or to get a counteroffer. At that point I'd consider more specific research into my legal rights.

Of course, this strategy assumes that you are okay being seen as a bit of a problem tenant. If your rent is below market or you have some other special relationship with this landlord you might want to let it go instead of asking. But absent that, simply writing a letter and asking them is probably worth a shot. (I'm not a lawyer and this is not legal advice, just practical advice.)
posted by internet fraud detective squad, station number 9 at 1:09 PM on April 1, 2019 [2 favorites]

I'm a small-time landlord, and I'd probably give you a break on rent if you asked. I'd email something like "hi Bob, thanks for your work getting the pipe situation resolved. I know that's taken a lot of your time, and I appreciate it. I wanted to check in about two things. First, the workers left the master bedroom carpet all wet, so I rented a wet-dry vac to dry that out and make sure it didn't mildew, which cost me $65. I didn't check in with you first because it was late at night and right before Home Depot was going to close, and I wanted to get it taken care of before the situation got worse. Second, over these last two weeks, it has really been hard to use my apartment. There have been workers here all day long, and since I work from home, I've really been taking a hit. [You could leave this ambiguous about whether you're talking inconvenience or actual lack of income.] It's been noisy, dusty, and smelly, with people here 12 hours a day on some days, and no matter where I went, I couldn't get away from the construction noise. Again, I understand the circumstances, and I appreciate your efforts to resolve everything, but at the same time, I haven't really been able to use my apartment the way I normally do. Do you think it'd be possible to give me any sort of rent rebate? Thanks again for everything."

I wouldn't specifically list that you have this right -- only the absolutely most clueless landlord hasn't heard about it, and it sort of puts things on an adversarial footing. Every landlord is different, but we're the kind where if you come in all legal guns blazing, we call our lawyer and just do whatever the lawyer tells us, but if you're nice, we use our own judgment and try to do what feels fair and right to us, and things probably work out slightly more in your favor. And if they didn't offer you something fair, that's when you could escalate with the legal terminology or a letter from an attorney. I think we'd probably offer you a refund for something like 25% of rent + $65. The $65 would depend on what I thought of the situation (e.g., if I had known that the workers had been planning to leave it wet and whether I thought the wet-dry vac thing had / hadn't been necessary). The 25% is half the day (12 hours out of 24 hours) times half the month. That might be high, depending on how much of your apartment was unusable -- if the situation was concentrated to half the apartment, I would consider dividing that in half -- but then again, it was probably dusty and smelly all night long, so arguably it should still stay at 25%.

Anyway, this is not really a legal perspective, just my best advice about how to approach it.
posted by slidell at 1:20 PM on April 1, 2019 [11 favorites]

A few answers that people asked for:
1) Emergency response was absolutely necessary, 100% agree. They couldn't figure out how to shut off the water for a full 25 minutes after the pipe broke.
2) I did not stay in alternate lodging.
3) The cleaning portion of maintenance has been a joke (It's still filthy, they just removed some paint splatters) and utterly non-emergency, particularly because I'm moving out in literally two weeks and they could deal with it once I'm out.
4) I have a second bathroom so habitability isn't an issue beyond sleeping in my office while industrial fans were roaring for two nights.
5) Yes, the bedroom carpet is wall-to-wall and required the wet vac and a whole lot of vinegar and baking soda to kill mildew.
6) I'm not interested in suing unless it's totally clear cut, which this isn't.
7) I haven't talked to property management about a reimbursement yet. They told me every single day of the renovation that "it'll be done tomorrow!" They've acted like they've been doing me a favor at every step. The only person who apologized to me for the inconvenience was a handyman, after the repairs had been completed. I don't have much faith in the management.

Sorry if I'm not being particularly clear, I'm exhausted from this whole experience. The (supposedly last) maintenance crew just left.

Thanks so much for the replies so far!
posted by seesaw at 1:25 PM on April 1, 2019

The same thing happened to me. My apartment was in abatement for 3 weeks. I texted my landlord and said: "I don't believe I should be responsible for paying rent until the repairs are finished. I imagine you understand." This worked in my situation, but ymmv. In general I do find that just being direct and saying what I want without much detail or justification works fairly well.

I moved almost immediately (it sounds like you're moving soon too) and discovered a lot of broken furniture and some really vaguely creepy stuff that was clearly related to the workers who did the abatement, and I decided to let all of that go rather than pursuing it. Moving out soon after really helped me not care as much about the whole thing, which was really pretty awful to go through.
posted by sockermom at 2:27 PM on April 1, 2019 [2 favorites]

So sorry you're going through this -- your frustration and feelings are very valid. I'd recommend checking this out: https://www.housing-rights.org (the URL is very general, yes, but it's Austin-based and Austin-centric). Hopefully this helps a bit, I'd give them a ring if you get nowhere with your landlord.

Just curious - is this private or corporate? If it was corporate (ie, Bozzuto or AvalonBay), I'd push up the food chain, contacting said corporation's headquarters if needed to escalate.

While they had responded fast to fixing things up, it does seem like their attitude left alot to be desired (acting like they were doing you a favor). Sorry about that, but hang in there. :)
posted by dubious_dude at 7:03 PM on April 1, 2019 [1 favorite]

The implied covenant is most effective as a basis for the renter to terminate the lease and move out before the end of its term. Not to say that it would not be useful in negotiating with the landlord or his/her/its manager.
posted by yclipse at 7:46 PM on April 1, 2019 [1 favorite]

It's been a few days but I just wanted to say thank you to everyone for responding—I'm actually moving out in a few weeks because my lease is up, so I'm going to wait to get my deposit back and then write them a letter. I've got nothing to lose by asking, so fingers crossed! Thank you again!
posted by seesaw at 12:43 PM on April 5, 2019

If you want feedback on that, I'd do it while it's all fresh. Raising it now seems like "hey this has been really tough - can you reimburse me?" Later, it could come across like "oh I just came up with a reason that they should send me more money." I doubt they'd retaliate by withholding your deposit. They're more likely to just say "no" if that's what they want to do. And if they do that then, yeah, it makes sense to fight over it later after you've moved out, but even in that instance, it'll look better if you at least raised it for the first time during or right after the situation. In any case, good luck!
posted by slidell at 6:58 PM on April 5, 2019 [1 favorite]

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