Q. I’ve been in my apartment for a couple of years and recently began seeing green-black mold in the closet, bedroom and hallway. It won’t go away, even when I clean with a bleach solution and ventilate. I think it’s the cause of a persistent cough.
I’ve asked management to move me to another unit, but they won’t, citing my poor payment history. It’s true that I was late with the rent three times, but I always paid before the end of the notice period, including the late-rent fee.
Is this a valid reason to deny me a change of apartments?
A. In some situations, tenants cannot exercise their rights unless they are paid up in the rent. For example, in many states, if a tenant withholds rent due to a rental’s substandard condition (a violation of the implied warranty of habitability), and asserts this failure to repair as a defense to an eviction for nonpayment, the tenant must deposit the rent into an account maintained by the court. This prevents tenants from falsely claiming substandard conditions as a way to avoid (or delay) paying rent.
But no statute that I’m aware of conditions a tenant’s right to use this remedy on never having been late in the past.
Similarly, some states give tenants a break when they are repeatedly late with the rent, but not forever. For example, a tenant who is late once may be entitled to a pay-or-quit notice; but if she is late again within a six-month period, the landlord may deliver an unconditional quit notice.
In other words, she loses her right to pay up quickly and avoid eviction. But these statutes apply only to late rent and the right to repeated pay-or-quit notices; they do not affect the tenant’s ability to take advantage of legal protections.
Let’s assume for now that the mold in your rental has made it unlivable (that’s a whole other question). If you didn’t cause it, and reasonable efforts on your part can’t control it, you would have the option to move out without responsibility for future rent, or (depending on state law) to exercise your right to withhold the rent or repair the problem and deduct the cost of the repair from your rent. You would not, however, have a statutory right to a different unit.
So in a technical sense, your landlord’s response is not illegal.
The landlord could refuse your request for any reason other than a discriminatory one or a retaliatory one. That he has pointed to your poor rent-paying history as the basis for his decision is neither discriminatory (he hasn’t refused because, for example, you’re a woman) nor retaliatory (you haven’t exercised any tenant rights by paying late).
Your best bet may be to take another tack. Point out to your landlord that the mold is dangerous and could result in injury to you. Perhaps he’ll see the big picture and move you and deal with the moisture problem to avoid a potential lawsuit.
