John Roska: What to do when an apartment isn't ready

John Roska: What to do when an apartment isn't ready

Q: If an apartment isn't ready when my lease starts, what can I do? Does the landlord have to put me up somewhere else? Can I move somewhere else?

A: Apartments not being ready can happen with a lease for a place under construction, or if the previous tenants don't move out. You then face a tough choice: get out, or get in deeper.

Your choice depends on your particular situation. As a general rule, though, bad starts with landlords rarely have happy endings.

Whatever you do, don't pay rent if the apartment's not available. You don't owe anything until you can actually live there.

In deciding whether to stay or go, see if the landlord has another apartment you can move into, either temporarily or permanently. Accepting a temporary relocation doesn't stop you from still looking for another place to move to.

Check the lease, too. It may say something about what happens when the apartment's not ready, or unlivable. Unfortunately, it'll probably protect the landlord, and not you.

It may, for example, say the landlord doesn't have to put you up somewhere else, or pay your expenses. It may also give the landlord a long "grace period" you have to wait through before you can terminate the lease and walk away because the apartment's not available.

Such lease terms are probably so one-sided as to be unenforceable. Therefore, don't let them stop you from trying to make the landlord pay for expenses you incur because the apartment's not ready. Those expenses could be what it costs to stay elsewhere temporarily, and extra moving expenses.

If you want out of the lease you signed, you have good grounds. The failure to deliver the apartment you were promised is a basic breach of the lease by the landlord.

If you want out, tell the landlord in writing you're terminating the lease, because of their breach. That cancels your obligations — most importantly, your liability for rent. You can then move somewhere else.

The landlord's breach should also make the landlord liable for the expenses you incur finding another apartment. As before, those expenses could be the cost of staying elsewhere while apartment hunting, moving expenses, and any extra rent you end up paying in another place.

But you'll have to front those expenses yourself, and sue the landlord if he won't pay voluntarily. In a lawsuit, a judge will have the final say on how much the landlord owes you.

If you decide to stay and not cancel the lease, you'll get in deeper with the landlord. That might turn out fine, but you're counting on someone who so far hasn't been very reliable.

Even if you ride it out, the landlord should still be liable to you for any expenses you incur staying elsewhere, or moving back and forth.

One lesson: be very careful about renting apartments still under construction. Unless you're flexible on your move-in date, you may want to lease something you know will be ready when you are.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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