33-1364. Wrongful failure to supply heat, air
conditioning, cooling, water, hot water or essential
services
A. If contrary to the rental agreement or section 33-1324 the landlord deliberately
or negligently fails to supply running water, gas or electrical service, or both if
applicable, and reasonable amounts of hot water or heat, air-conditioning or cooling,
where such units are installed and offered, or essential services, the tenant may give
reasonable notice to the landlord specifying the breach and may do one of the following:
1. Procure reasonable amounts of hot water, running water, heat and essential
services during the period of the landlord's noncompliance and deduct their actual
reasonable cost from the rent. If the landlord has failed to provide any of the utility
services specified in this section due to nonpayment of the landlord's utility bill for
the premises, and if there is no separate utility meter for each tenant in the premises
such that the tenant could avoid a utility shutoff by arranging to have services
transferred to the tenant's name, the tenant may either individually or collectively with
other tenants arrange with the utility company to pay the utility bill after written
notice to the landlord of the tenant's intent to do so. With the utility company's
approval the tenant or tenants may pay the landlord's delinquent utility bill and deduct
from any rent owed to the landlord the actual cost of the payment the tenant made to
restore utility services. The tenant or tenants may continue to make such payments to
the utility company until the landlord has provided adequate assurances to the tenant
that the above utility services will be maintained.
2. Recover damages based upon the diminution in the fair rental value of the
dwelling unit.
3. Procure reasonable substitute housing during the period of the landlord's
noncompliance, in which case the tenant is excused from paying rent for the period of the
landlord's noncompliance. In the event the periodic cost of such substitute housing
exceeds the amount of the periodic rent, upon delivery by tenant of proof of payment for
such substitute housing, tenant may recover from landlord such excess costs up to an
amount not to exceed twenty-five per cent of the periodic rent which has been excused
pursuant to this paragraph.
B. A landlord shall provide all utilities and services specified in the lease
agreement.
C. A landlord shall not terminate utility services as specified in subsection A of
this section which are provided to the tenant as part of the rental agreement, except as
necessary to make needed repairs or as provided in section 33-1368. Subsequent to the
execution of the rental agreement, a landlord may not transfer the responsibility for
payment of such utility services to the tenant without the tenant's written consent.
D. If a landlord is in violation of subsection C of this section, the tenant may
recover damages, costs and reasonable attorneys fees and obtain injunctive
relief. Nothing in this section shall preclude a tenant's right to recover damages as
specified in section 33-1367.
E. A lease agreement shall not contain any terms contrary to this section.
F. In addition to the remedy provided in paragraph 3 of subsection A of this
section, in the event the landlord's noncompliance is deliberate, the tenant may recover
the actual and reasonable cost or fair and reasonable value of the substitute housing not
in excess of an amount equal to the periodic rent.
G. If the tenant proceeds under this section, he may not proceed under section
33-1361 or section 33-1363 as to that breach, except as to damages which occur prior to
the tenant proceeding under subsection A or B of this section.
H. The rights under this section do not arise until the tenant has given notice to
the landlord and such rights do not include the right to repair. Such rights do not
arise if the condition was caused by the deliberate or negligent act or omission of the
tenant, a member of the tenant's family or other person on the premises with the tenant's
consent.
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