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1. What steps should the landlord and tenant take when moving in?

Before or shortly after the tenant moves in, the landlord and the tenant should walk through the unit together and inspect it in detail for any existing damage or defects and necessary cleaning, especially noting the general condition of all appliances. A checklist should be completed at this time. If the unit is furnished, the checklist includes a general description of all of the furniture in the unit. The landlord and the tenant both sign the checklist and each party keeps a copy.

If the landlord is not available to do the walkthrough, the tenant should complete the checklist anyway and give the landlord a copy. Try to get a friend to witness the condition of the unit or take pictures, specifically of any damaged or defective item in the unit. This information can prove invaluable when trying to get a return of the security deposit. Photographs and witnesses can prove that a condition existed at the beginning of the lease term.

2. What if the landlord misrepresents the condition of the unit?

The tenant takes the unit "as is" in its present condition. The rule of caveat emptor or "buyer beware" prevails in the landlord-tenant situation. Unless there is an agreement otherwise or the landlord makes a fraudulent misrepresentation, the tenant takes the unit as found with all known existing defects and those defects that can be determined by a reasonable inspection. It is the tenant's responsibility to examine the unit to determine its safety and condition before moving in.

Representations about the unit's general condition made by the landlord during negotiations for a lease, such as "The unit is spotless" or "The unit is in fabulous shape," are generally considered to be "dealer talk," "puffing" or mere expressions of opinion. If these opinions are not put in writing as the landlord's warranty or guarantee, the tenant will have little recourse if the statements prove to be untrue. However, if the landlord does indeed fraudulently misrepresent the habitability or condition of the unit, intending that the tenant rely on these statements, and the tenant does reasonably rely, the tenant may elect either to vacate the unit and rescind the lease or to remain in possession and sue the landlord for damages for the fraud. Fraud is a difficult matter to prove. A tenant should always seek legal assistance before moving out of a unit and breaking a lease.

3. What about hidden defects?

A landlord does not have a duty to disclose to the tenant obvious defects which can be seen by the tenant during a reasonable inspection. However, the landlord is obligated to tell the tenant about hidden defects that the tenant could not discover by an ordinary examination but which are known or should have been known by the landlord. Upon discovery of the facts, the tenant may vacate the unit and end the lease, or s/he may remain in the unit and sue the landlord for damages. Again, a tenant should never move out of a unit or break a lease without first seeking legal advice.