In California both landlords and tenants each responsible for certain kinds of repairs, although landlords ultimately are legally responsible for ensuring that their rental units are habitable. In legal terms, “habitable” means that the rental unit is fit for occupation by human beings and that it substantially complies with state and local building and health codes that materially affect tenants’ health and safety.
Landlord’s Responsibility for Repairs
Before renting a rental unit to a tenant, a landlord must make the unit fit to live in, or habitable. Additionally, while the unit is being rented, the landlord must repair problems that make the rental unit unfit to live in, or uninhabitable.
All residential leases and rental agreements contain an implied warranty of habitability. Under the “implied warranty of habitability,” the landlord is legally responsible for repairing conditions that seriously affect the rental unit’s habitability.
The landlord must repair substantial defects in the rental unit and substantial failures to comply with state and local building and health codes. However, the landlord is not responsible under the implied warranty of habitability for repairing damages that were caused by the tenant or the tenant’s family, guests, or pets.
Some of the conditions that make a rental unit legally uninhabitable are if it lacks any of the following features:
- Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
- Plumbing facilities are in good working order, including hot and cold running water, connected to a sewage disposal system.
- Gas facilities are in good working order.
- Heating facilities are in good working order.
- An electric system, including lighting, wiring, and equipment, are in good working order.
- Clean and sanitary buildings, grounds, gardens, or a detached garage, free from debris, filth, rubbish, garbage, rodents, and vermin at the inception of the tenancy and time period within the landlord’s control during the tenancy.
For the comprehensive list of requirements that make a rental unit be considered uninhabitable read through the DCA’s legal guide to “Rental Housing & Repairs”
Note: Even if a rental unit is unlivable because of one of the conditions listed above, a landlord may not be legally required to repair the condition if the tenant has not fulfilled the tenant’s own responsibilities.
Tenant Responsibility for Repairs
Tenants are required by law to take reasonable care of their rental units, as well as common areas such as hallways and outside areas. Tenants must act to keep those areas clean and undamaged.
Tenants must do all of the following:
- Keep the premises “as clean and sanitary as the condition of the premises permits.”
- Use and operate gas, electrical, and plumbing fixtures properly. (Examples of improper use include overloading electrical outlets; flushing large, foreign objects down the toilet; or allowing any gas, electrical, or plumbing fixture to become filthy.)
- Dispose of trash and garbage in a clean and sanitary manner. However, a landlord may agree in writing to clean the rental unit and dispose of the trash.
- Not destroy, damage, or deface the premises, or allow anyone else to do so.
- Not remove any part of the structure, dwelling unit, facilities, equipment, or appurtenances, or allow anyone else to do so.
- Use the premises as a place to live and use the rooms for their intended purposes. For example, the bedroom must be used as a bedroom, and not as a kitchen.
- Notify the landlord when deadbolt locks and window locks or security devices do not operate properly and notify the landlord or manager if the tenant becomes aware of an inoperable smoke or carbon monoxide detection system.
If the tenant fails to do one of these required things, and the tenant’s failure has either substantially caused an unlivable condition to occur or has substantially interfered with the landlord’s ability to repair the condition, the landlord does not have to repair the condition and the tenant cannot withhold rent, until the tenant cures his/her own violation.
Note: one thing to keep in mind as a tenant is to notify the landlord immediately when damages have occurred, and repairs are needed. When you contact your landlord whether by phone, email, or letter make sure to document the communication and to take photos of damages to have on record.
Having Repairs Made.
If a tenant believes that his or her rental unit needs repairs and the landlord is responsible for the repairs under the implied warranty of habitability, the tenant should notify the landlord in writing and retain a copy for their records.
If the damage or repairs require urgent attention, the tenant should notify the landlord orally (i.e., by telephone or in-person) and memorialize his/her communication in writing immediately thereafter. The tenant should specifically describe the damage or defects and the required repairs.
The “Repair and Deduct” Remedy Method
The “repair and deduct” remedy allows a tenant to deduct money from the rent to pay for the repair of defects in the rental unit if the repairs would not cost more than one month’s rent. This remedy covers substandard conditions that affect the tenant’s health and safety and substantially breach the implied warranty of habitability. Examples might include a leak in the roof during the rainy season, no hot running water, or a gas leak.
The basic requirements and steps for using the repair and deduct remedy are as follows:
- The defects must be serious and directly related to the tenant’s health and safety.
- The repairs cannot cost more than one month’s rent.
- The tenant cannot use the repair and deduct remedy more than twice in any 12-month period.
- The tenant or the tenant’s family, guests, or pets must not have caused the defects that require repair.
- The tenant must inform the landlord, either orally or in writing, of the repairs that are needed. If you notify the landlord in writing, retain a copy of the notice for your records.
- The tenant must give the landlord a reasonable period of time to make the needed repairs before undertaking the repairs themselves.
- What is a reasonable period of time? This depends on the defects and the types of repairs that are needed. The law usually considers 30 days to be reasonable, but a shorter period may be considered reasonable, depending on the situation. For example, if the furnace is broken and it is very cold outdoors, one to two days may be considered reasonable.
- If the landlord does not make the repairs within a reasonable period of time, the tenant may either make the repairs or hire someone to do them. The tenant may then deduct the cost of the repairs from the rent when it is due. The tenant should keep all receipts for the repairs.
- It is recommended, but not required by law, that the tenant give the landlord a written notice that explains why the tenant has not paid the full amount of the rent. The tenant should always keep a copy of this notice.
Risks:
The damages may not be serious enough to justify using the repair and deduct remedy. In that event, the landlord can sue the tenant to recover the money deducted from the rent or can serve a 3-day notice to pay rent or quit and file an eviction action based on the tenant’s nonpayment of rent. If the tenant deducted money for repairs not covered by the remedy or did not give the landlord proper advance notice or a reasonable period of time to make repairs, the court can order the tenant to pay the full rent even though the tenant paid for the repairs or can order that the eviction proceed.
Because of the risk of a lawsuit, tenants who plan to use the repair and deduct remedy should document the defective conditions with photographs or video and keep copies of letters informing the landlord of the problem. Before the tenant repairs and deducts, it is a good idea to check with a legal aid organization, lawyer, housing clinic, or tenant program to help determine if rent withholding is the appropriate remedy.
Another solution similar to the “repair and deduct” remedy is the “rent withholding” method in which the tenant withholds some or all of the rent if the landlord does not fix the serious defect that violates the implied warranty of habitability. This method holds most of the same requirements and risks as most remedy methods.
Since this form of remedy involves legal technicalities, it is recommended that the tenant talk to a lawyer, legal aid organization, or tenants’ association before proceeding.
The “Abandonment” Remedy Method
Instead of using the repair and deduct remedy, a tenant can abandon (move out of) a seriously defective rental unit. This remedy is called the “abandonment” remedy. A tenant might use the abandonment remedy where the defects would cost more than one month’s rent to repair, but this is not a requirement of the remedy.
In order to use the abandonment remedy, the rental unit must have substandard conditions that affect the tenant’s health and safety and substantially breach the implied warranty of habitability. If the tenant uses this remedy properly, the tenant is not responsible for paying further rent once they have abandoned the rental unit. The basic requirements and steps for lawfully abandoning a rental unit are:
- The defects must be serious and directly related to the tenant’s health and safety.
- The tenant or the tenant’s family, guests, or pets must not have caused the defects that require repair.
- The tenant must inform the landlord, either orally or in writing, of the repairs that are needed (see “Giving the landlord notice,” pages 57-58). Writing is strongly recommended. If you notify your landlord in writing, always retain a copy for yourself.
- The tenant must give the landlord a reasonable period of time to make the needed repairs.
- What is a reasonable period of time? This depends on the defects and the types of repairs that are needed. The law usually considers 30 days to be reasonable, but a shorter period may be considered reasonable, depending on the circumstances. For example, if tree roots block the main sewer drain and none of the toilets or drains work, a reasonable period might be as little as one or two days.
- If the landlord does not make the repairs within a reasonable period of time, the tenant should notify the landlord in writing of the tenant’s reasons for moving and then actually move out. The tenant should return all the rental unit’s keys to the landlord. The notice should be mailed or delivered. The tenant should always keep a copy of the notice.
- It is recommended, but not required by law, that the tenant give the landlord written notice of the tenant’s reasons for moving out. The tenant’s letter may discourage the landlord from suing the tenant to collect additional rent or other damages. A written notice also documents the tenant’s reasons for moving, which may be helpful in the event of a later lawsuit. If possible, the tenant should take photographs or a video of the defective conditions or have local health or building officials inspect the rental unit before moving out. If you end up in court, a report from a local health or building official documenting the existence of substantial substandard conditions will be helpful. The tenant should keep a copy of the written notice and any inspection reports and photographs or videos.
Risks:
The defects may not affect the tenant’s health and safety seriously enough to justify using the remedy. The landlord may sue the tenant to collect additional rent or damages. Again, because of the risk of a lawsuit, tenants who plan to use the abandonment remedy should document the defective conditions with photographs or video and keep copies of letters informing the landlord of the problem. Before the tenant abandons the rental property, it is a good idea to check with a legal aid organization, lawyer, housing clinic, or tenant program to help determine if rent withholding is the appropriate remedy.
Whenever weighing the possibility of implementing any of the following methods, it’s best to consult with legal professionals before making any decision that could get you evicted or possibly sued.
Note: This is information accessible to the public and does not constitute legal advice nor counsel. For more information or to discuss this topic in depth, schedule a meeting with the Law Clinic.
