Nope. Housing must have heat and plumbing, but air-conditioning is an amenity.
Here’s a startling fact — the leading weather-related killer in the U.S. is not, as you might imagine, hurricanes or tornadoes or wildfires or floods.
In the last three years, heat-related deaths have jumped a whopping 88 percent, from 911 in 2019 to 1713 in 2022, according to the Pandemic to Prosperity report published in July by the National Conference on Citizenship. Another 65,000 people are hospitalized each year for heat-related illnesses. These numbers are only expected to climb as we log more “hottest” summers because of climate change.
People of color living in low-income communities are disproportionately vulnerable to extreme heat events. They’re often living in the hottest parts of cities, according to Green & Healthy Homes Initiatives — the “result of decades of discrimination in housing policies.” Low-income communities typically have little shade or greenery and a lot of pavement — a condition now recognized as “thermal inequity.” Public housing isn't required to provide air conditioners. Most building codes don't require air conditioning either. In one study of four cities in the Journal of Urban Health, fewer than half as many Black homes had central air conditioning compared with white homes, yet heat-related mortality among Black residents was more than double that of whites.
All of which begs the question: With summers getting hotter and lives in the balance, do we have a right to air conditioning?
VoxPopuli posed that question to Jerika Mobley, manager of housing law at Community Legal Services in Orlando.
VoxPopuli: So let me ask, is air conditioning a right? Temperatures hit 100F this summer, and the Environmental Protection Agency, says we should expect to see more excessive heat waves. Do people have the right to be cool in the summer in the way that they have the right to be warm in the winter?
Jerika Mobley: Well, residential landlords have a duty to ensure that rental property is habitable. Habitable means safe, sanitary, and suitable for living. It does not mean comfortable or luxurious. Generally, air conditioning has always been considered an amenity, not a necessary condition of habitability.
Florida is actually not unusual when it comes to not requiring landlords to provide or maintain air conditioning. That's pretty consistent across the United States. So albeit odd, especially considering how hot Florida gets and remains often year round. We rarely get a break from the heat. There are some states that do consider air conditioning as a condition of habitability, but I'd say the majority of the states are similar to Florida.
VoxPopul: But heat is considered something that makes a space habitable?
Jerika Mobley: Apparently so. It's always been that way. I can’t provide you with the why of it, but just legally it's always been that way. Air conditioning has been considered an amenity as opposed to heat, which has been considered a condition of habitability.
VoxPopuli: Do you think that — and here I'm just asking you to speculate — looking ahead to a new normal of more record-setting hot summers, do you suppose the law will catch up to the environment? In Phoenix, Dallas and Montgomery County in Maryland landlords are required to provide air conditioning units to tenants.
Jerika Mobley: I'm not aware of any state legislation currently in the pipeline addressing air conditioning. [Legislative] attempts have been made in the past, but they've ultimately failed. I hate to speculate. In my personal opinion, considering the smoldering temperatures that Floridians face nearly year round, I think it would be wonderful for legislation to be enacted requiring that air conditioning be considered a condition of habitability. But that's solely my opinion. It would take state legislation in order for that to be a right.
VoxPopuli: Let’s talk about what people can do. When we initially emailed, you mentioned a program called the Low-Income Home Energy Assistance Program (LIHEAP). What is that about?
Jerika Mobley: LIHEAP is a federally funded program. You can visit that website for more information on the program and there will be a list of local agencies that administer the program. And they would just need to contact that local agency to see if they qualify. This is a low income, program, so there would be income requirements.
VoxPopuli: Right. Orange County administers that program and offers home energy credits (up to $1,300) and crisis assistance (up to $5,000) to county residents who’ve had their electricity shut off or are at risk for disconnection. Household income for four needs to be within 60 percent of the state median, so no more than $50,071; households of nine shouldn’t exceed $77,025. (Call 407-836-7429, weekdays 8:30 a.m. to 12 p.m., to request an application be mailed. See the list of supporting documents to send with an application here.)
Now, there are real health dangers when we don’t have air conditioning on extremely hot days. According to the Environmental Protection Agency, heat is the leading weather-related cause of death in the U.S. Do you remember those 12 elderly residents in the South Florida nursing home after Hurricane Irma? The storm didn’t kill them. The near 100-degree temperatures inside the nursing home after they lost power is what killed them.
Jerika Mobley: If the tenant had a disability, and the heat is exacerbating the tenant's disability, the tenant could consider requesting an accommodation from the landlord that includes operational air conditioning. If the request is reasonable, then the landlord should comply.
Tenants do have recourse. Tenants have options. If the landlord materially fails to maintain the premises, they can deliver written notice to the landlord specifying the material non-compliance. Tenants can withhold rent or they can terminate the lease and immediately vacate if repairs are not made within seven days. But the risk is, if the premises is still habitable, if it's still considered safe, sanitary and fit for living, the landlord's non-compliance likely isn't material. Since air conditioning is not a necessary condition of habitability, it is risky for tenants to try to withhold rent or terminate the lease and vacate.
I would suggest that tenants consider alternatives if remaining in those conditions isn't threatening their health. Like I said, applying for LIHEAP. If they have the funds, purchasing those standing, ceiling or window fans or a window air-conditioning unit. Or possibly asking the landlord to supply those temporary units. You never know, the landlord might be willing.
Then there are other alternatives: Open the windows, unplug electronics. You'd be surprised how hot a dwelling can get when electronics are plugged in, and the temperatures outside are smoldering. Avoid running the appliances and things like that. So tenants do have options. You know, if the, if the heat is extremely unbearable, I would suggest tenants consider possibly negotiating an early termination of the lease without penalty. Or maybe they can ask friends or family to pay the early termination fee that is typically offered in most leases.
Coping with extreme heat
Extreme heat isn’t considered a major disaster, but if Democratic Arizona Congressman Ruben Gallego has his way, that could change. In June, he introduced the bipartisan Extreme Heat Emergency Act of 2023, which would add extreme heat to the Federal Emergency Management Agency’s list of major disasters, which would allow heat events to qualify for federal assistance. If the bill passes, it would, among other things, permit local governments to expand cooling centers for people to escape the heat and provide resources to hospitals.
Meanwhile, on days when the heat index is projected to reach 103F, the Christian Service Center opens daytime cooling centers for the homeless, stocked with ice and water, at its Orlando and Ocoee locations. Executive Director Eric Gray estimates the cooling centers have been open on more than 30 days since Memorial Day. The Orlando location (808 W. Central Blvd.) can accommodate 250 people while the Ocoee location (300 W. Franklin St.), accommodates 60.
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