4326. Affirmative Defense Repair and Deduct

4326. Affirmative Defense--Repair and Deduct Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 [Name of defendant] claims that [he/she] does not owe [any/the full amount of] rent because [he/she] was not given credit against the rent for repairs performed during the period for which rent was not paid. To succeed on this defense, [name of defendant] must prove the following: 1. 2. 3. 4. 5. [Name of defendant] gave notice to [name of plaintiff]['s agent] of one or more conditions on the premises in need of repair; [Name of plaintiff] did not make the requested repairs within a reasonable time after receiving notice; [Name of defendant] spent $_____________ to make the repairs and gave [name of plaintiff] notice of this expenditure; [Name of plaintiff] did not give [name of defendant] credit for this amount against the rent that was due; and [Name of defendant] had not exercised the right to repair and deduct more than once within the 12 months before the month for which the cost of repairs was deducted from the ent. If [name of defendant] acts to repair and deduct more than 30 days after the notice, [he/she] is presumed to have waited a reasonable time. This presumption may be overcome by evidence showing that a [shorter/ [or] longer] period is more reasonable. [[Name of defendant] may repair and deduct after a shorter notice if all the circumstances require shorter notice.] [Even if [name of defendant] proves all of the above requirements, [name of defendant] was not entitled to repair and deduct if [name of plaintiff] proves that [name of defendant] has done any of the following that contributed substantially 4326. Affirmative Defense--Repair and Deduct Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 to the need for repair or interfered substantially with [name of plaintiff]'s ability to make the necessary repairs: [Failed to keep [his/her] living area as clean and sanitary as the condition of the property permits][./; or] [Failed to dispose of all rubbish, garbage, and other waste in a clean and sanitary manner][./; or] [Failed to properly use and operate all electrical, gas, and plumbing fixtures and keep them as clean and sanitary as their condition permits][./; or] [Intentionally destroyed, defaced, damaged, impaired, or removed any part of the property, equipment, or accessories, or allowed others to do so][./; or] [Failed to use the property for living, sleeping, cooking, or dining purposes only as appropriate based on the design of the property][./;or] [Otherwise failed to exercise reasonable care.]] ________________________________________________________________________________ New April 2008