4320. Affirmative Defense Implied Warranty of Habitability

4320. Affirmative Defense--Implied Warranty of Habitability Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 [Name of defendant] claims that [he/she] does not owe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 [name of plaintiff] did not maintain the property in a habitable condition. To succeed on this defense, [name of defendant] must prove that [name of plaintiff] failed to provide one or more of the following: a. b. [effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors][./; or] [plumbing or gas facilities that complied with applicable law in effect at the time of installation and that were maintained in good working order][./; or] [a water supply capable of producing hot and cold running water furnished to appropriate fixtures, and connected to a sewage disposal system][./; or] [heating facilities that complied with applicable law in effect at the time of installation and that were maintained in good working order][./; or] [electrical lighting with wiring and electrical equipment that complied with applicable law in effect at the time of installation and that were maintained in good working order][./; or] [building, grounds, and all areas under the landlord's control, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin][./; or] [an adequate number of containers for garbage and rubbish, in clean condition and good repair][./; or] c. d. e. f. g. 4320. Affirmative Defense--Implied Warranty of Habitability Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 h. i. [floors, stairways, and railings maintained in good repair][./; or] [Insert other applicable standard relating to habitability.] [Name of plaintiff]'s failure to meet these requirements does not necessarily mean that the property was not habitable. The failure must be substantial. A condition that occurred only after [name of defendant] failed or refused to pay rent and was served with a notice to pay rent or vacate the property cannot be a defense to the previous nonpayment. [Even if [name of defendant] proves that [name of plaintiff] substantially failed to meet any of these requirements, [name of defendant]'s defense fails if [name of plaintiff] proves that [name of defendant] has done any of the following that contributed substantially to the condition or interfered substantially with [name of plaintiff]'s ability to make the necessary repairs: [substantially failed to keep [his/her] living area as clean and sanitary as the condition of the property permitted][./; or] [substantially failed to dispose of all rubbish, garbage, and other waste in a clean and sanitary manner][./; or] [substantially failed to properly use and operate all electrical, gas, and plumbing fixtures and keep them as clean and sanitary as their condition permitted][./; or] [intentionally destroyed, defaced, damaged, impaired, or removed any part of the property, equipment, or accessories, or allowed others to do so][./; or] [substantially failed to use the property for living, sleeping, cooking, or dining 4320. Affirmative Defense--Implied Warranty of Habitability 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 purposes only as appropriate based on the design of the property.]] The fact that [name of defendant] has continued to occupy the property does not necessarily mean that the property is habitable. _____________________________________________________________________________ New August 2007; Revised June 2010, June 2013, December 2014