Cool It Now: Renters Deserve a Right to Cooling – Next100
Commentary   Climate

Cool It Now: Renters Deserve a Right to Cooling

Laws requiring building owners and landlords to provide for, or at the very least allow, air conditioning in residential rental units can protect vulnerable communities from extreme temperatures.

“When the weather outside is frightful,” the fire inside is often delightful, because heat provides for habitable and suitable living conditions in apartments and residential buildings across the country. The lyrics of Jules Styne’s “Let It Snow,” despite having been written in the middle of a heat wave, may be unwittingly speaking to legal heat requirements that make many homes habitable during cold months. For example, October 1 is the beginning of “Heat Season” in New York City: this designation does not refer to extreme summer temperatures (like Miami’s “Heat Season”), but instead to the beginning of the period during which all residential building owners are required to maintain indoor temperatures of at least 68 degrees when outdoor temperatures fall below 55 degrees during the day. Even with the opposite meanings, the motivation for the mandates during both heat seasons is similar: keeping temperatures in buildings in a zone of optimal habitability despite changing external temperatures (both seasonal and global) is necessary for a safe home.

Where Miami’s “heat season”—not to be confused with the city’s basketball team—is an effort to raise general public awareness about the health risks of extreme heat in summer, New York’s season is an effort to maintain public awareness of the city’s heat laws, which require landlords to ensure that apartments under their control are kept sufficiently warm during the fall and winter. These laws not only set baseline indoor temperatures during cooler months, but they also ensure that households have hot water service, all in an effort to help keep New Yorkers in safe and secure homes. These pillars of safety and security provide the foundation for similar laws in many states that require landlords to provide and maintain heat at designated temperatures. During cold weather, apartment dwellers in New York and many other cities have come to expect and rely on their landlords to ensure that they have heat, but the same cannot be said when temperatures are high. Miami’s heat season, for example, does not come with similar tenant protections because there are no state or local laws requiring landlords to provide or maintain air conditioning or cooling systems in their buildings. This is not uncommon.

The pervasiveness of cold weather-oriented habitability requirements in contrast to the paucity of hot weather-oriented habitability requirements raise growing concerns about the reach and potential of these laws in the context of increasing global temperatures. While minimum heating requirements in cold weather are ubiquitous (even in warmer places like Florida), standards for cooling are much more rare, despite the fact that heat kills more people than cold. The historic winter storm of December 2022 and the resulting loss of lives in Buffalo, New York and other cities notwithstanding, deaths and injuries related to extreme cold events are projected to decline due to climate change. Instances of extreme heat, however, are expected to increase (with a corresponding increase in heat-related deaths and public health concerns). With these projections in mind, our efforts to equip residential buildings to respond to changing temperatures—particularly in keeping buildings cooled during months where extreme heat risks are high—are of critical importance. Climate change will require states and cities to implement more robust measures that ensure habitable living conditions for the protection of renters across seasons.

While minimum heating requirements in cold weather are ubiquitous (even in warmer places like Florida), standards for cooling are much more rare, despite the fact that heat kills more people than cold.

This report begins by considering the prevalence of cold-weather heating mandates and the importance of making hot-weather cooling counterparts far more prevalent. It then discusses the effective contents of cooling mandates, and offers a suite or recommendations to state and municipal governments on effective implementation of such policies.

State and local governments that experience cold weather have nearly universally adopted minimum heating and hot water requirements in cooler months.

These laws require building owners and landlords to provide heating and hot water to their tenants, and are primarily the domain of state and local government. In Florida, for example, a landlord’s obligation for providing a habitable living space is primarily governed by Florida Statute 83.51. This legal requirement, commonly known as the “implied warranty of habitability,” sets landlord requirements, but also outlines the rights of tenants. In states around the country, these laws serve as the basis of requirements that building owners and landlords provide heating to their tenants.

Landlords are legally required to maintain a habitable environment for their tenants, but each state defines habitability differently. While the definitions may vary, each state’s warranty of habitability essentially necessitates that tenants have a right to a livable, safe apartment. This implied warranty between landlords and tenants was litigated in Javins v. First National Realty Corp (428 F.2d 1071), where the U.S. Court of Appeals for the District of Columbia Circuit held that, in regards to residential property, the landlord makes an implied warranty of habitability, and that the standard of habitability will be set by the relevant housing codes. This firmly established the warranty of habitability in landlord–tenant law. Because of the implied warranty of habitability and the expectation that every tenant should have heat in their rental property, even states like Florida, the “Sunshine State,” require landlords and building owners to provide heat in their rental properties.

The universality of these laws has led to a relatively common set of expectations for renters (and landlords) when it comes to apartments: hot and cold running water, working plumbing and electrical wiring/outlets/ lighting, windows and doors that are in good repair, among many other necessities. This common set of expectations proliferated across the country as a result of the Uniform Residential Landlord and Tenant Act, developed by the Uniform Law Commission in 1972: the model law provides rules governing residential lease arrangements, promulgated the insertion of an implied warranty of habitability into residential leases, and has been enacted in twenty-one states.

In the uniform act, heat is considered to be an “essential service,” whereas a requirement for air conditioning is subject to the terms of the lease or some additional law beyond the act itself. Some states have, indeed, adopted more expansive habitability requirements (e.g., Arizona considers air conditioning an “essential service”) and/or require landlords to substantially comply with local building and housing code standards that often have more robust health and safety standards. For the places that have them, laws requiring access to air conditioning may be the vanguard of a new wave of habitability standards that account for the serious threat to health and safety that extreme heat poses.

Extreme heat is a major climate challenge.

Extreme heat is responsible for more deaths globally than any other climate disaster, and is the leading weather-related cause of death in the United States. Moreover, heat waves are occurring more often than they used to in major cities across the United States. Their frequency has increased steadily, from an average of two heat waves per year during the 1960s to six per year during the 2010s and 2020s. Summer is now being coined “danger season” because of the confluence of extreme temperatures and other climate-related disasters (drought, wildfire, hurricanes, etc). Even regions known for their temperate climate are feeling the effects of extreme heat: A historic heatwave in the Pacific Northwest resulted in dangerous temperatures, which was made 150 times more likely because of climate change.

The challenge is exacerbated by the fact that extreme heat isn’t equally felt across communities. In the United States, low-income neighborhoods are more likely to be hotter than their wealthier counterparts. Heat islands, present in many American cities, create a patchwork of neighborhoods that are notably hotter than others, and these are often areas that people of color call home. Chicago’s 1995 heat wave was an illumination of intersecting crises of extreme heat, inadequate infrastructure, and the social vulnerability of communities. The Chicago areas with the highest death rates during that heat wave lie on the South and Southwest sides of the city, areas with higher rates of poverty and historically the home of the city’s Black population. But the city was and is no outlier: In New York City in 2022, one neighborhood block in East Harlem was recorded at 31 degrees higher than another on Central Park West on the same day at the same time. These are the sorts of disparities that underlie extreme heat challenges.

In the United States, low-income neighborhoods are more likely to be hotter than their wealthier counterparts.

The demographics of the renter population also matter. Renters are increasingly likely to be older, people of color, and living in nontraditional households. The majority of our Black and Latinx population are renters: 58 percent of Black households rented their housing in 2019, along with 52 percent of Hispanic households, 43 percent of American Indian or Alaskan Native households, and 39 percent of Asian households. The rentership rate for white households is far lower, at just 28 percent. These rentership rates matter because landlords, not renters, are the key decision makers for most residential rental properties.

Many homeowners often face similar concerns of living in heat islands with increased precarity to the risks of extreme heat, but these homeowners have the agency (if not the resources and capacity) to prepare for and respond to these risks in a way that renters often do not. On the other hand, the limited possessory interest of leases may either prohibit or effectively prevent tenants from making substantial changes (e.g., installation of heating, ventilation, and cooling systems). Consider the fact that the Oregon Legislature had to pass the Emergency Heat Relief Act to establish tenants’ rights to have cooling units in their homes—requiring landlords to allow most types of air conditioners in rental housing and prohibiting blanket bans on A/C units. So, we essentially have large populations of people of color, low-income individuals and families, and recent immigrants that depend on these state and local laws to establish baseline requirements for their standard of living.

There are already cities and municipalities with residential building temperature requirement policies in practice regarding extreme heat.

Dallas, Texas has maximum indoor temperature requirements for residential buildings. These require building owners and landlords to keep buildings at least 15 degrees cooler than the outside temperature, but in no event higher than 85°F.

Under Arizona’s Residential Landlord and Tenant Act, air conditioning is considered an essential need, but the law stops short of requiring landlords to provide air conditioning or cooling. In that absence, cities throughout the state, including Phoenix, Tucson, and Tempe, have established temperature ordinances of their own. In addition to requiring air conditioning capable of safely cooling all habitable rooms, the City of Tempe takes the law a step further by mandating that apartments have heating and cooling under the tenant’s control—a very important policy reality in a state that annually experiences more than one hundred 100°F-plus days.

Increasingly hotter summers led Montgomery County, Maryland to establish a “cooling season” of its own. From June 1 to September 30, the county requires that individual air conditioning units, or a central air conditioning system, be maintained in good working condition to provide an inside temperature of 80°F or less. The county issued a press release explicitly acknowledging efforts to improve living conditions for many older renters and residents in affordable housing units that lack access to consistent air conditioning.

These policy measures aren’t merely a reflection of ongoing efforts to improve living conditions for renters, but are a signal that air conditioning, or the ability to access cooling in cases of extreme heat, is becoming a necessity to maintain the safety and habitability of homes across the country. This is especially important as a new report finds that more than 100 million people reside in America’s burgeoning heat belt, a region that is projected to experience an increasing number of days with temperatures above 125°F (52°C). Even in places with more moderate climates, we may have to take steps to ensure access to air conditioning in recognition of our changing climate.

Air conditioning may not be the climate-forward cooling solution that we want, but it is a highly effective resource that we already have.

A 2012 study found that home air conditioning usage in the United States has decreased heat-related deaths by nearly 80 percent since 1960. The use of air conditioning not only makes the summer months more bearable for many, but it strengthens our ability to withstand serious heat waves, and even shapes where we live. Considering the population growth of Florida, Texas, and other warm locales, air conditioning made much of America’s Sun Belt livable.

But while air conditioning can be life-saving in extreme heat conditions, the proliferation of more energy-intensive cooling resources arguably runs counter to our collective climate mitigation goals. Greater use of air conditioning units may increase energy usage and have negative impacts on climate goals overall and contribute to other infrastructural risks: Increased energy demand during summer heat waves in 2020 contributed to California’s first rolling blackout in nearly twenty years.

Recognizing these potential climate impacts is important, but is that an acceptable sacrifice in the face of our changing climate? These questions require us to situate in context the statistics about who currently has access to air conditioning and who bears the brunt of the impacts of climate change. Namely, populations more likely to live in areas of cities with the highest temperatures are also those least likely to have access to the resource.

Nationwide, nearly 90 percent of homes use air conditioning, according to the U.S. Energy Information Agency. There is, however, wide variation across renters and homeowners in the types of air conditioning used (whether central or window unit) and many renter households in the lowest-income quartile aren’t equipped with it at all. There is also a considerable difference in the geographies of access to air conditioning, but across all metro areas in the United States, lower-income households and renters are less likely to have access. These data points underlie a serious racial equity concern that can be traced from Chicago in 1995 to predominantly Black neighborhoods in Detroit today, where more than 15 percent of Black households lack air conditioning access, compared to only 4 percent of white households. These disparities across demographics and geographies in rates of access to air conditioning highlight the fact that the proliferation of air conditioning is not so much the issue: the problem is the unequal distribution and use of this critical resource.

The proliferation of air conditioning is not so much the issue: the problem is the unequal distribution and use of this critical resource.

Air conditioning, as opposed to artificial heat, is often considered a luxury, a framing that makes for a convenient scapegoat in conversations about access and use. For comparison, heating a home uses more energy than cooling one does (in fact, homes in colder geographies in the United States use more energy than those in warmer climates), but it would be perceived as highly irrational and irresponsible (and illegal in most places) to deny heat to vulnerable populations on the basis that provision of the life-saving resource will use more energy and emit more greenhouse gasses. If all but the most vulnerable groups are already likely to have access to air conditioning, then making the case about the energy demands and impacts of additional use unjustly shifts the burden of our responses to climate change.

Our cooling efforts don’t have to stop at air conditioning.

The provision of air conditioning is an attractive, incremental method of responding to extreme temperature, in part because it is how we have historically adapted to climate fluctuations and is largely feasible. However, that does and should not limit the breadth of our responses to the challenge of extreme heat. A right to cooling, or temperature thresholds that provide for cooled homes, are also not, by design, a demand for the incorporation of innovative cooling or building technologies. Such a right shares an end goal with policies that diversify and improve our cooling methods, but they need not be executed at the same time or in the same way.

Heat pumps are a new technology that could help with this issue and are used in many other countries. The New York City Housing Authority (NYCHA) is aiming to install clean energy heating and cooling systems in more than 30,000 apartments across the city, but this number represents only a fraction of NYCHA’s more than 170,000 units. Heat pumps are also but one innovation in a line of cooling strategies that could also include more physical infrastructure strategies, such as cool roofs or other building retrofits.

For newly constructed buildings, we may look to architecture and design to minimize the effects of extreme heat. That may mean looking to new technologies, such as passive house insulation techniques, or to the past, where historic heat-mitigating design efforts such as the wind towers of old buildings in Dubai, in which turrets on buildings channel air inside, may serve as a model for contemporary design efforts.

Household-level initiatives are also not the only means to improve the cooling capacity of communities. The development of temperature requirements for residential buildings is but one tool that is aimed at providing relief for vulnerable renters, but it does not account for the development of community-based resilience strategies (e.g., greenspace development, cool pavements), other community-based resources (e.g., cooling centers), or even other household-level cooling innovations. All of these efforts by governments, designers, and planners, should be aimed at addressing habitability ideals—that is, to how we keep people warm in winters and cool in summers now that we are faced with climatic extremes at an increasing frequency.

Policy Recommendations: How can we be prepared when the next “danger season” rolls around?

At the end of September, announcements pop up all over New York City declaring the start of “Heat Season.” The same mobilization of resources and awareness should also apply to the extreme heat season—the summer season that is becoming increasingly dangerous for those that do not have the resources to beat the heat.

With that goal in mind, there are a few potential paths that states or cities could take to help to protect renters from the effects of extreme heat. Given variances in geography, climate vulnerability, and weather concerns, the approach may ultimately look different in each case, but all paths seek to provide recourse from the worst impacts of extreme heat among vulnerable renter populations.

Recommendation 1: States and cities should adopt temperature and cooling thresholds in residential buildings.

We have seen a legislative model popping up in places across the country (e.g., Dallas, Texas) that redefines what it means to have a livable and habitable residence in a time of frequent extreme temperatures. These laws can set maximum indoor temperatures (as a bookend to minimum indoor temperatures during colder weather). This will create a baseline habitability requirement that will provide for suitable living conditions across the board. The mechanism to achieve those indoor temperatures can then be left to be determined by the property owners or landlords. Note that just like with cases concerning a landlord’s failure to provide adequate heat, these laws are simply a protection for tenants, and require strong enforcement to be effective.

Recommendation 2: States and cities should establish a right to cooling in residential buildings.

Regardless of the building, tenants should be able to have access to air conditioning or some form of cooling. Similar to the Oregon law that prohibits landlords from banning portable air conditioning units, these laws would ensure that tenants are able to have access to air conditioning during extreme temperatures. What a right to cooling recognizes is that the ability to upgrade rental units for improved interior cooling lies primarily with property owners, and absent building wide installation, there should still be options for cooling installations in individual rental units. These cooling requirements can and should be paired with retrofit programs targeting owners aimed at facilitating air conditioning installation and/or cooling retrofits.

Recommendation 3: States and cities should ensure that energy and utilities assistance programs account for cooling resources among their eligibility and administrative requirements.

There should also be utility assistance programs targeting renters, particularly during summer months when energy bills may be higher, enabling lower-income individuals to power their air conditioning units. Many states use federal Low Income Home Energy Assistance Program (LIHEAP) dollars to create utilities and energy assistance programs that provide help for eligible households, but their policies often don’t account for cooling resources. During a 2021 heat wave, many families in Washington State were denied access to monies the state receives from the Low Income Home Energy Assistance Program because the program did not cover air conditioning. Other states, such as Massachusetts, similarly mandated that the program could only be used for heating.

By contrast, New York City, for example, established a Cooling Assistance Benefit program that provides $800 per low-income household for an air conditioning unit and installation. This program is, of course, subject to funding and limits of administrative burden. New York City’s program is first-come, first-served, and the 2022 program application closed in early July, ahead of the summer’s most extreme temperatures.

We should make sure that air conditioning units and other cooling resources are eligible for LIHEAP-funded programs, and invest more in making sure that eligible households receive the benefits needed to run them and stay cool.

Recommendation 4: States and cities should continue to raise awareness of the dangers of extreme heat.

More cities are employing chief heat officers, officials focused on developing strategies addressing extreme heat and protecting their constituents. Some of these strategies include the development of heat season campaigns to raise awareness of the dangers of extreme heat, but they do not stop there, also marshaling the resources available to combat increased temperatures and risk.

We need to recognize that extreme temperatures are part of our climate reality, and we must take efforts to protect communities from risk. More awareness may lead to more efforts to enact policies and programs aimed at keeping buildings cooled–and people safe–during months where extreme heat risks are high.

It’s time to change our tune, and ensure that everyone’s home is safe from extreme heat.

Extreme heat is a major challenge and, like many other climate-related phenomena, it is disproportionately impacting low-income and people of color. Explicitly, what we need to do is address the challenges of extreme heat by ensuring that we are mobilizing resources to protect those same groups. These recommendations are merely efforts to collectively adapt to our changing environment in ways that are just and fair, because when the weather outside is frightful, all of us deserve to be protected and safe.

About the Author

Dan Mathis Housing + Design

Dan is a housing advocate working on advancing housing policy related to climate change and community engagement. He is a native Floridian, an HBCU graduate, and, prior to joining Next100, worked with an affordable housing coalition in Florida. At Next100, Dan draws on his lived experience growing up in a segregated coastal community to promote equity and justice in housing and climate planning.

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