§ 35-4-201. DANGEROUS CONDITIONS.

(a)

Assertion; declaration or defense. A tenant may make the assertion described in subsection (b) of this section:

(1)

As a defense in an action of distress for rent or in any proceeding brought by a landlord to recover rent or the possession of a leased premises for nonpayment of rent; or

(2)

As a declaration brought at the initiative of the tenant by filing in the appropriate district court a request for any form of relief set forth in subsection (f) of this section.

(b)

Assertion by tenant.

(1)

A tenant may assert that there exists on the leased premises or on property used in common with the leased premises a condition that constitutes, or will constitute if not promptly corrected, a fire hazard or serious threat to the life, health, or safety of the occupants of the leased premises.

(2)

A serious threat to the life, health, or safety of the occupants of a leased premises includes:

(i)

A lack of heat or of hot or cold running water, except if:

1.

The property is a single-family dwelling or a multiple dwelling where the tenant is responsible for payment of the water charge; and

2.

The lack of water is the direct result of the tenant's failure to pay the water charge;

(ii)

A lack of light or of electricity;

(iii)

A lack of adequate sewage disposal facilities;

(iv)

An infestation of rodents, except if the property is a single-family dwelling.

(c)

Minor defects and utilities not covered.

(1)

There is a rebuttable presumption that the following conditions, when they do not present a serious and substantial threat to the life, health, and safety of the occupants, are not covered by this section:

(i)

A defect that merely reduces the aesthetic value of the leased premises, such as the lack of fresh paint, rugs, carpets, paneling, or other decorative amenities;

(ii)

Small cracks in the walls, floors, or ceiling;

(iii)

The absence of linoleum or tile on the floors, provided that they are otherwise safe and structurally sound; or

(iv)

The absence of air conditioning.

(2)

This section applies only to utilities that the tenant had:

(i)

Before either the landlord or tenant instituted a court action; or

(ii)

At the time the landlord and tenant entered into the lease.

(d)

Conditions for assertion by tenant.

(1)

The tenant may make the assertion under this section, whether made as a declaration or as an answer, if the conditions established under this subsection are met.

(2)

Before commencement of the action by the tenant or by the landlord, the landlord or the agent of the landlord was:

(i)

Notified in writing by certified mail of the conditions described in subsection (b) of this section; or

(ii)

Notified of the conditions by a violation notice from an appropriate state or county agency.

(3)

(i)

After notification and a reasonable amount of time, the landlord refused or failed to correct the conditions.

(ii)

The length of time considered to be reasonable is a question of fact for the court, except that there is a rebuttable presumption that a period in excess of 30 days after the receipt of the notification by the landlord is unreasonable.

(4)

The tenant has paid the amount of rent called for under the lease into an escrow account established by the court, unless the amount is modified by subsequent order of the court under subsection (f) of this section.

(5)

The tenant has not had more than:

(i)

Three judgments entered by a court of competent jurisdiction against the tenant for rent due and unpaid in the 12 months immediately preceding the initiation of the action by the tenant or by the landlord; or

(ii)

Two judgments entered by a court of competent jurisdiction against the tenant for rent due and unpaid if the tenant has lived on the premises for 6 months or less.

(e)

Sufficient answers. It shall be sufficient answer or rejoinder to the declaration or defense of the tenant if the landlord establishes to the satisfaction of the court that:

(1)

The condition alleged by the tenant does not in fact exist;

(2)

The condition has been removed or remedied;

(3)

The condition has been caused by the tenant or members of the tenant's family or their invitees or assignees; or

(4)

The tenant has unreasonably refused entry or failed to make arrangement for the entry by the landlord or the agent of the landlord to the premises for the purpose of correcting the conditions.

(f)

Findings of fact; orders.

(1)

The court shall make findings of fact and issue any order that the justice of the case may require, including any one or a combination of the following:

(i)

Order the termination of the lease or order the surrender of the leased premises to the landlord;

(ii)

Order all money already accumulated in escrow disbursed to the landlord or to the tenant in accordance with:

1.

Subparagraph (iv) or subparagraph (v) of this paragraph or;

2.

Subsection (g) of this section;

(iii)

Order the escrow continued until the complained of condition is remedied;

(iv)

Order that the amount of rent, whether paid into the escrow account or paid to the landlord, be abated in an amount determined by the court to be equitable to compensate for the existence of the conditions found by the court to exist;

(v)

Subject to paragraph (3) of this subsection, if the landlord refuses to make repairs after a reasonable time, order that the money accumulated in escrow be disbursed to the tenant, the landlord, or to a contractor chosen by the landlord to make repairs or to remedy the conditions;

(vi)

Subject to paragraph (4) of this subsection, refer any matter before the court to the proper state or county agency for investigation and report; or

(vii)

Order escrow funds to be disbursed to pay a mortgage on the property in order to stay a foreclosure.

(2)

In all cases in which the court determines that the tenant is entitled to relief under this section, the burden shall be upon the landlord to show cause why there should not be an abatement of the rent.

(3)

If the court determines that the money in escrow should be disbursed for repairs as required under paragraph (1)(v) of this subsection, the court shall issue an order to insure that money disbursed will be used for the purpose of making repairs or effecting a remedy.

(4)

(i)

When the court determines that additional study by a state or county agency is warranted, the court shall grant a continuance of the action or complaint pending receipt of the investigation and report.

(ii)

When a continuance is granted, the tenant shall deposit with the court the rent, subject to any abatement under paragraph (1)(iv) of this subsection, that becomes due during the period of the continuance.

(g)

Conditions not remedied by landlord; disposition of escrow.

(1)

Notwithstanding any provision of subsection (f) of this section, when an escrow account is established by the court, the court may award all money accumulated in the escrow account to be disbursed to the tenant if:

(i)

The conditions asserted by the tenant are not fully remedied within 6 months after the establishment of the account; and

(ii)

The landlord has not made reasonable attempts to remedy the condition.

(2)

(i)

After awarding all of the money in escrow to the tenant, the court shall continue the escrow for a new 6-month period.

(ii)

The court shall award all of the money in escrow to the tenant if, at the end of the next 6 months, the conditions have not been remedied.

(h)

Hearings.

(1)

(i)

Except as provided in subparagraph (ii) of this paragraph, the court shall hold an initial hearing within 15 calendar days after the day the court posts the notification of the hearing as provided in subsection (j) of this section.

(ii)

The court shall order an earlier hearing if emergency conditions are alleged to exist upon the premises, including:

1.

Failure of heat in winter;

2.

Lack of adequate sewage facilities; or

3.

Any other condition that constitutes an immediate threat to the life, health, or safety of the inhabitants of the leased premises.

(2)

On motion of either party or on its own motion, the court may hold hearings subsequent to the initial proceeding in order to further determine the rights and obligations of the parties.

(i)

Distribution of money in escrow. Distribution of money in escrow may only occur by order of the court:

(1)

After a hearing for which both parties are given reasonable notice;

(2)

In accordance with a motion of both the landlord and the tenant; or

(3)

After certification by the appropriate agency of the satisfactory completion of the work required by the court.

(j)

Notice required; delay in acceptance.

(1)

If a hearing is required on a motion or other issue, the court shall send notice:

(i)

To the opposite party and any other persons requiring notification;

(ii)

By certified mail return receipt requested; and

(iii)

Stating the date, time, and purpose of the hearing.

(2)

Refusal by a party to accept the notice or the party's unreasonable delay in accepting the notice may not bar a remedy that the opposite party is otherwise entitled to receive.

(k)

Increase in rent or eviction prohibited; exceptions.

(1)

For a period of 6 months following a determination of the merits of the case by the court, a landlord may not increase rent, evict the tenant from the premises, or decrease services that by law are required to be provided by the landlord unless the court finds:

(i)

That the declaration or defense by the tenant has not been brought in good faith; or

(ii)

That the landlord has proven that increasing the rent or evicting the tenant was for good cause, as established under subsection (l) of this section.

(2)

After the 6-month period, the tenant shall have the burden of proving that the rent increase or eviction was not for good cause as established under subsection (l) of this section.

(l)

Good cause for raising rent or eviction; established. Good cause for the landlord to evict the tenant or to raise the rent includes a finding that:

(1)

Other than ordinary wear and tear, an act or omission by the tenant or the tenant's family member, invitee, or assignee caused the conditions that formed the basis of the tenant's complaint or defense;

(2)

The landlord seeks in good faith to recover possession of the property for the landlord's immediate personal use as a dwelling after termination of the lease;

(3)

The landlord has contracted in good faith and in writing to sell the property for immediate personal use and occupancy as a dwelling by the purchaser after termination of the lease;

(4)

The landlord must increase the rent due to a substantial increase in taxes or a substantial increase in maintenance or operating costs not associated with the conditions asserted in any proceeding under this section; or

(5)

Apart from improvements associated with the conditions asserted in a proceeding under this section, the landlord has completed a substantial capital improvement that benefits the leased premises or the property of which the leased premises is a part.

(m)

Applicability to tenant who reports code violation.

(1)

(i)

Except as provided in subparagraph (ii) of this paragraph, the prohibitions set forth in subsection (k) of this section apply to a landlord whose tenant, in good faith, reports a potential code violation to the appropriate state or county agency, regardless of the tenant's intention to proceed under any other portion of this section.

(ii)

A landlord may increase the rent of a tenant 6 months after the determination of the merits of the initial case by the court.

(2)

Nothing in this subsection shall alter the landlord's or tenant's right to terminate or not renew a written lease that is for a term of 1 year or longer, provided the written lease is not used to defeat the intent of this section.

(n)

Repossession for razing or boarding up the premises. A landlord may repossess the premises if the landlord:

(1)

Gives the tenant a proper 60-day notice of the landlord's desire to repossess the premises; and

(2)

Has the good faith intention to obtain a permit and raze or board up the premises.

(o)

Waiver of tenant benefits void. A provision of a lease or other agreement that waives any provision of this section that is for the benefit of a tenant, resident, or occupant of a dwelling is void.

(1988 Code, § 18-37) (Bill No. 25-01, § 2, 7-1-2004; Bill No. 76-03, § 11, 7-1-2004)