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CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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Live in apt. in home of landlord who increased occupancy

Customer Question

Live in apt. in home of landlord who increased occupancy above me that has made my apt. unlivable based on no insulation between ceilings and floors. She originally told me she had a guest coming for a week or so, it's now been a month and she will not be specific about his length of stay. The guest is up throughout the night walking above 3 out of 4 rooms I live in with creaking floorboards at every step and his presence has dramatically altered my living conditions. Have paid $1300/mo rent for 2 1/2 years and she has security deposit of $1300, which she told me she has already spent. She waits for new tenants to pay her old tenants back their deposit. Have had electricity turned off twice due to her not paying bills on time. Haven't paid current rent due (5 days late) as am trying to talk to her to find out how long her "guest" is staying. She won't respond, other than email asking where rent is. Septic tank in backyard is periodically flowing over and has needed to be cleared for over a year; creates horrible stench when overflowing. Rodents are in adjacent unfinished unit on a shared wall with rat feces and rodent traffic in walls and squirrels are digging under the foundation. Was supposed to have A/C and Sears came to clean ducts and said they were filled with dead animals and feces and duct system would have to be replaced (2 1/2 years ago when I moved in). I blocked vents with plastic inside my apt. I would like to give her notice to move, but have to use this month's rent in order to do so. As I don't expect her to give me security deposit back (certainly not on time, if at all), can I withhold the rent this month and give her notice to move, or can she evict me for not paying rent on time. I wanted to speak with her about the need to move based on the noise factor and inability to sleep, and request she use my security deposit for this month's rent, but she will not respond to my email or text requesting to speak with her.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

I am sorry to learn of this situation.

What state are you in? (Habitability laws vary by state - see: so your recourse against your landlord for the various defects - sewage, infestation, lack of ventilation, etc. are going to be dealt with under habitability). Habitability may give you a right to terminate the lease early (again see your state's laws for specifics).

However, in general, you cannot use your security deposit to pay the last month's rent. So your landlord can sue you for non-payment of rent (an eviction suit, called an "unlawful detainer" or a "forcibile eviction and detainer" suit depending on what state you are in).

These matters are good for mediation - contact your local bar association and request referrals to mediators, a third party neutral can often help you reach a mutually agreeable resolution. Use the bar association's referrals to contact a mediator or two, the mediator will then contact the other party to set up a mediation session, and you can go from there - hopefully resulting in a formal or written settlement agreement, and save yourself the time and expense of litigation.

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