Q: I have a question about filing a small claim against my apartment complex and want to know if you think I have a case.
Long story short, the residents that live under me had a leak and maintenance had to knock down the way under my sink. This happened 6/10. Since then, I have had a bird (an outside side bird) come in through the hole in the wall, in which I have contacted the rental office about. I have tried to resolve the issue with them to no avail. At this point, I am not for sure if the bird has found it’s way out or has deceased behind the wall. Also, as of today, my wall under my sink has not been fixed.
A: Forget the small claim action, unless you pay out of pocket to have the bird removed. Document your complaints in writing to the landlord and demands to address the two outstanding issues. If they do not respond reasonably quickly, file a rent escrow action in the district court. A rent escrow action is where you pay the rent you ordinarily owe to the landlord into the court’s registry, where there exists an unhealthy or unlivable condition in your leased premises that deprives you of a safe and secure living environment, or renders part of your rental space unusable or inaccessible. The court will hold a hearing and determine what portion of the rent you paid into court for the time that the unlivable condition existed should be returned to you, and which part the landlord may have. Basically, the landlord must repair the premises and remedy or cure the hazardous conditions before he can receive rent again, and will forfeit rent during the time the condition persisted. That is your remedy. If the condition is so bad you must vacate to insure your health and safety, then you can claim you were constructively evicted and are entitled to your out of pocket expenses to secure alternative housing during that time, or potentially in extreme cases, terminate your lease early.
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