Understanding Habitability and Constructive Eviction
As a landlord, managing risk is just as important as managing property. While there are many risks associated with rental ownership, litigation is perhaps the most significant. In Georgia, landlord-tenant law is governed by Title 44, Chapter 7. For a long time, section 44-7-13 has covered the landlord’s general duty to repair. However, recent legislative updates have raised the stakes.
The Impact of the Safe at Home Act
Roughly two years ago, the Georgia legislature passed the Safe at Home Act. This legislation added significant “teeth” to existing laws, specifically through section 44-7-14.
Under this act, a landlord’s failure to maintain a property in “good and serviceable condition” can now be classified as a tort action. In simple terms, this makes it much easier for a tenant to sue a landlord for failing to maintain the property.
What Makes a Property “Uninhabitable”?
A property becomes uninhabitable when essential services fail. Many landlords make the mistake of delaying these repairs to seek multiple estimates, but judges often view these delays as a breach of duty. Key examples of habitability issues include:
-
Climate Control: A failed air conditioner in the peak of summer or a furnace in the winter.
-
Sanitation: A clogged or failed septic system that renders toilets unusable.
-
Water Access: A burst pipe that results in a total loss of water to the home.
When a property is legally uninhabitable and the tenant chooses to move out, it is called constructive eviction. In the eyes of the law, the tenant was effectively evicted because the property was no longer livable.
Separating the Emergency from the Restoration
The best way to mitigate risk is to treat emergencies like emergencies. You must restore essential services immediately to avoid a habitability claim. However, you can often separate the immediate crisis from the secondary repairs.
Example: The Burst Water Heater
-
The Emergency: A plumber must be dispatched immediately to replace the unit and restore hot water. Simultaneously, water extraction vendors must be sent to mitigate damage to flooring and drywall.
-
The Non-Emergency: Once the water is gone and the heat is back on, the “emergency” phase is over. Replacing the damaged drywall or flooring can then follow a more standard timeline for estimates and scheduling.
The Danger of the “Handyman Fix”
One of the greatest risks landlords take is sending an unqualified handyman to address water damage. A common mistake is simply priming and painting over a brown water stain on drywall.
While the stain disappears, the mold growing on the paper backing of the drywall does not. If a tenant develops health issues months or years later, your maintenance records will show that you were aware of the water damage but failed to remediate it properly.
Professional Tip: When dealing with water, any drywall that got wet should generally be cut out and replaced by a qualified contractor to ensure mold spores are not trapped behind the walls.
The Bottom Line
Constructive eviction and tort actions are serious risks, but they are avoidable. By addressing emergencies immediately and refusing to cut corners on safety issues—like cracked heat exchangers or mold remediation—you protect both your tenants and your investment.
Don’t wait until you’re standing in front of a judge to realize that a third estimate wasn’t worth the legal cost.