If a rental building is not up to code, is that considered to be constructive eviction?
We alerted our former landlord several times that we needed a handrail installed on our 15 step staircase, thus bringing the rental up to code. He never did and we had to move as I was pregnant and had low-placenta (high risk) and had to live in a safe environment. He is now suing us for breaking the lease. Since we have documentation of the severaltimes we asked him to bring the house up to code and he never did, can we counter-sue for constructive eviction?
In every lease, there is an implied warranty of habitability which means that the landlord is required to maintain the premises in a habitable condition by complying with local and state housing codes.
When the landlord has been notified of the code violation and has had a reasonable opportunity to remedy the problem, but has failed to do so, as in your case, the tenant can make the repairs and deduct the cost from the rent or can move out and terminate the obligation to pay rent for the balance of the term of the lease or if the tenant stays on the premises, the tenant can withhold rent and defend against eviction.
Since the landlord has filed a lawsuit against you for breaking the lease, you should file an answer to the complaint (lawsuit) and also file a cross-complaint. The cross-complaint (countersuit) would be for breach of the implied warranty of habitability.