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This year, we’ve reformed the Index to focus on unhoused youth and young adults (YYA), aligning it with their experiences and policy needs. Shifting from harm reduction to transformative change, some jurisdictions may see lower scores than before. This is a deliberate strategy, not a setback. Lower scores should motivate, not discourage, jurisdictions. They present an opportunity to adopt policies that effectively tackle and prevent youth homelessness, fostering meaningful progress.

Uninhabitable Housing is Defense Against Rent Nonpayment

  • Habitability of housing

Uninhabitable or substandard housing is an affirmative defense for nonpayment of rent and/or other lease violations

When landlords sue tenants for nonpayment of rent, habitability violations are sometimes an affirmative defense to nonpayment – meaning that a tenant can tell the judge about the habitability violations and the judge may decide that they don’t owe some or all of the rent to the landlord. Generally, though, withholding rent can be risky because the judge might eventually decide it was withheld improperly and order the tenant to pay some or all of it back to the landlord. Some jurisdictions allow or require tenants to withhold rent through a rent escrow process. This is where tenants pay their rent into a neutral third-party account until the habitability issue is resolved and then the court decides how much rent should be paid to the landlord and how much should be returned to the tenant for “loss of use” of the rental property. 

Finally, in some jurisdictions, tenants may have the option to recover damages from their landlords for habitability violations that go beyond the value of their rent. The damages could be compensatory (actual cost of finding alternate shelter or trying to fix the issue) or punitive (allowing damages beyond reimbursement of costs to deter the landlord from allowing habitability issues to persist in the future). These types of remedies could be especially powerful if paired with the right to an attorney to help a young person with their case. But without a right to counsel, requiring a young person to go to court to address uninhabitable housing is unrealistic – a better way would be to allow tenants to withhold rent after reasonable notice to the landlord of the need for repair and to then bar the landlord from filing a lawsuit for nonpayment of rent unless they can first prove to the court that the rental unit is habitable.

Key Metric Score Type of Policy Description
1.0 Reform Uninhabitable/substandard housing is an affirmative defense for nonpayment of rent and other lease violations
0.5 Harm Reduction Uninhabitable/substandard housing is an affirmative defense for nonpayment of rent only
0.0 Status Quo No law found
-0.5 Harmful Affirmative defenses for nonpayment of rent are prohibited by law
Tenants must counterclaim to raise habitability issues

Cite: National Homelessness Law Center and True Colors United. "State Index on Youth Homelessness, Uninhabitable Housing is Defense Against Rent Nonpayment" https://youthstateindex.com/maps/uninhabitable-housing-is-defense-against-rent-nonpayment/. Accessed: February 24, 2024.

Habitability of housing

A habitable dwelling is one that is safe, clean, and suitable for living in. It is an essential component of the right to housing. In general, landlords have a legal obligation to maintain habitability in their rental properties, including working heat, hot water and electricity, and addressing issues like broken locks or infestations. However, jurisdictions vary in how much power renters have to hold landlords responsible to fix unsafe or unlivable conditions.

“It’s one thing to get housing, it’s another to have to feel uncomfortable in that housing. NYCHA supportive housing can be dangerous, too many repairs, infestations. People going through housing insecurity are expected to deal with these things. Housing is often seen as a profit maker and not a basic right. Landlords and property managers should care more and keep up on their buildings.” – Kemi Adebisi-Oke