Posted by DK on August 26, 1999 at 12:00:23:
In Reply to: Re: broken refrigerator posted by Mark Smith on August 25, 1999 at 23:07:59:
I agree with Mark's first two paragraphs. I think he's a little too cautious in the third paragraph.
It is true that some leases (but not all) prohibit a tenant from maintaining his own refrigerator. There are also one or two housing court judges who have ruled that the tenant must keep the old refrigerator owned by the landlord inside the apartment, even though the tenant purchased his own. I cannot conceive of any judge, however, enforcing these clauses if the tenant can show that the landlord failed to maintain the refrigerator provided by the landlord.
As to buying a used refrigerator: Yes, I guess you would have a better case for deducting the entire amount. But, in fact, only a minority of landlords buy used refrigerators to harass and punish tenants who object to the old one. Instead, my experiences is that when confronted with an old refrigerator that cannot be repaired coupled with the tenant's refusal to consent to pay the 1/40 MCI increase, the majority of landlords still buy a new refrigerator.
When landlords refuse to buy a new refrigerator, I urge my clients to respond in kind: make sure that the replacement refrigerator is not any older than the one it is replacing, that it is not any smaller (or some tenants insist that it not be any bigger), that it does not use any greater electricity and that it has all of the features of the former refrigerator. Frankly, the cost of a new refrigerator is only a couple of hundred dollars more. It's not worth the landlord's effort to fight over this.
: If the landlord does not do the repairs within a week, rather than repair and deduct, or replace and deduct, I would suggest having a service call to have someone look at the refrigerator. If repair costs are reasonable, then have the repairs done. If the serviceman says, in writing, that repair costs would be excessive, I would suggest buying a used refrigerator of approximately the same size and with the same features.
: If the landlord refuses to pay for the service call and the repairs or replacement, I would sue the landlord in small claims court, which would probably more friendly and more convenient (in the evening) than housing court. Repair/replace and deduct could lead you to housing court (probably in the daytime), and if the landlord is successful, you could be liable for the landlord's attorneys' fees.
: Also, your lease may prohibit you from replacing the refrigerator and other appliances. If you replace the broken refrigerator with a new refrigerator, the landlord might try to enforce the lease, because he would prefer to furnish the replacement refrigerator and increase the rent by 1/40 of a high-price refrigerator. That becomes a part of the rent, and would be subject to renewal and vacancy increases in the future. The landlord couldn't legitimately raise that argument for a used refrigerator replacing a broken, non-repairable refrigerator.
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