Introduction

Everywhere in California, you are legally entitled to rental property that meets basic structural, health, and safety standards and is in good repair. But suppose a landlord comes up short? When landlords fail to take care of important maintenance, you may have the legal right to use the "big sticks" in a tenant's arsenal -- the rights to:

• withhold rent
• pay for repairs yourself and deduct the cost from the rent
• sue the landlord, or
• move out without notice.

This chapter describes your right to basic, important things, such as hot water, a floor that will not collapse under your feet, decent heat, and a roof that doesn't leak -- in other words, your right to a safe and livable home. It also provides practical advice on how to get a reluctant landlord to perform needed repairs (and how to get them done yourself, using the big sticks mentioned above, if the landlord refuses). Less important maintenance and repair issues -- such as unclogging kitchen drains or mowing the front lawn -- are covered in the next chapter.

Your Basic Right to Livable Premises

All landlords are legally required to offer livable premises when they originally rent a unit, and to maintain it in that condition throughout the rental term. In legal terminology, this promise of fit housing has the lofty-sounding name "the implied warranty of habitability." The word "implied" means that by virtue of offering a residential rental, the landlord is automatically promising you a fit place to live -- even if the landlord doesn't realize it.

Importantly, you have the right to a habitable rental even if you've willingly moved into a place that's clearly below habitability standards, or even if the lease or rental agreement you've signed states that the landlord doesn't have to provide a habitable unit. No California judge will accept these sleazy attempts to secure tenant "waivers," and none will uphold landlord "disclaimers."

So far, your right to a livable rental probably sounds rather imprecise. What does a "fit and habitable" rental really mean? Fortunately, in California the landlord's responsibility to provide habitable housing is quite specific. The sections below give you chapter and verse from state law, building codes, and court decisions. Taken together, they form an impressive list of entitlements for tenants.

Fit and Habitable: State Statutes

The major California law defining habitable housing is Civil Code § 1941.1 and § 1941.3. According to these laws, at a minimum every rental must have:

• effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors
• plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order
• a water supply approved under applicable law that is under the control of the tenant, capable of producing hot and cold running water, or a system that is under the control of the landlord, that produces hot and cold running water, furnished to appropriate fixtures, and connected to a sewage disposal system approved under applicable law
• heating facilities that conformed with applicable law at the time of installation, maintained in good working order
• electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order
• building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin
• an adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the time of the commencement of the lease or rental agreement, with the landlord providing appropriate serviceable receptacles thereafter and being responsible for the clean condition and good repair of the receptacles under the landlord's control
• floors, stairways, and railings maintained in good repair
• deadbolt locks on certain doors and windows (see Chapter 12 for specifics), and
• No lead paint hazards (deteriorated lead-based paint, lead-contaminated dust or soil, or leadbased paint disturbed without containment). (CC §§ 1941.1 and 1941.3; H&S § 17920.10.)

Fit and Habitable: No Risks to Health, Safety, or Property

The state statutes quoted above dictate the minimum condition for rental premises to qualify as fit and habitable. The law also approaches the issue from another angle, labeling a rental "substandard" if it has any problem in "State Housing Law," above, that "endangers the life, limb, health, property, safety, or welfare of the public or the occupants." (H&S §17920.3, also known as the State Housing Law.) As you read through the list, in "State Housing Law," remember that only when these conditions endanger life, limb, and so on, will they legally create a substandard, unfit rental.

Fit and Habitable: Industry and Local Codes

Yet another source of law gives meaning to your right to a fit and habitable dwelling. The Uniform Housing Code, an industry code that is adopted by the state legislature and counties and cities (which may increase its requirements and protections), sets minimum standards. Many of them overlap the standards in the State Housing Law, above, but some are unique. If you haven't yet seen the maintenance problem that's bedeviling you, read on. Each rental dwelling must have:

• A working toilet, wash basin, and bathtub or shower. The toilet and bathtub or shower must be in a room that is ventilated and allows for privacy.
• A kitchen with a sink, which cannot be made of an absorbent material such as wood.
• Natural lighting in every room through windows or skylights having an area of at least one tenth of the room's floor area, with a minimum of 12 square feet (three square feet for bathroom windows). The windows in each room must be able to be opened at least halfway for ventilation, unless a fan provides for ventilation.
• Safe fire or emergency exits leading to a street or hallway. Stairs, hallways, and exits must be litter free. Storage areas, garages, and basements must be free of combustible materials.
• Every apartment building having 16 or more units must have a resident manager. (25 California Code of Regulations § 42.)

City or county building or housing codes are different from industry codes. They regulate structural aspects of buildings and usually set specific space and occupancy standards, such as the minimum size of sleeping rooms. They also establish minimum requirements for light and ventilation, sanitation and sewage disposal, heating, water supply (such as how hot the water must be), fire protection, and wiring (such as the number of electrical outlets per room). In addition, housing codes typically make property owners responsible for keeping hallways, lobbies, elevators, and the other parts of the premises the owner controls clean, sanitary, and safe.

Your local building or housing authority, and health or fire department, may have an informational booklet that describes the exact requirements your landlord must meet. In most urban areas, these local codes are more thorough than the state's general housing law -- for example, some cities require landlords to install specific security items, such as peepholes, in exterior doors. However, local laws usually don't explain what you can do if your landlord fails to comply. To find out, you'll need to consult "How to Get Action From Your Landlord," below.

Fit and Habitable: Court Decisions

State legislators aren't the only ones who have weighed in on the subject of what constitutes fit housing. Judges, too, faced with cases in which tenants didn't pay the rent because they felt that the premises were unlivable, have often written decisions that gave tenants extended rights. In fact, the whole notion of an implied warranty of habitability came from a court case, not from the legislature (that case was Green v. Superior Court, 10 Cal.3d 616 (1974)).

In evaluating whether a landlord is providing habitable housing, courts may also consider the weather, the terrain, and where the rental property is located. Features or services that might be considered nonessential extras in some parts of the country are legally viewed as absolutely necessary components of habitable housing in others. For example, in areas with severe winters, such as the Sierra, storm windows may be considered basic equipment.

Finally, keep in mind that the meaning of the term "habitable housing" is not static, and court decisions are made in light of changes in living conditions and technology. For example, these days courts consider the prevalence of crime in urban areas when determining what constitutes habitable housing; and the presence of mold may make some dwellings unfit. Good locks, security personnel, exterior lighting, and secure common areas are now seen, in some cities, to be as important to tenants as are water and heat. (Chapter 14 discusses your rights to adequate security measures.)

Your Repair and Maintenance Responsibilities

You now know that you can expect your landlord to provide safe and habitable housing and adhere to norms of cleanliness and behavior under a variety of overlapping and specific legal rules. But your landlord isn't the only one with legal responsibilities. If you don't keep up your end of the bargain, at the least you can expect a deduction from your security deposit when you move out, for needed cleaning or repairs. Most importantly, you cannot use a "big stick" remedy in response to you landlord's failure to keep your rental fit and habitable if your own failings have "contributed substantially" to the habitability problem. (CC § 1941.2.) State housing law requires you to:

• Keep your rental as clean and sanitary as the condition of the premises permits. For example, if your kitchen has a rough, unfinished wooden floor that is hard to keep clean, you should not be expected to keep it shiny and spotless -- but a tenant with a new tile floor would be expected to do a decent job. If you don't, and your landlord has to do a major clean up when you move out, expect a hefty deduction from your security deposit.
• Dispose all rubbish, garbage, and other waste in a clean and sanitary manner. For instance, if mice or ants invaded your kitchen because you forgot to take out the garbage before you left on a two-week vacation, you would be responsible for paying any necessary extermination costs.
• Properly use and operate all electrical, gas, and plumbing fixtures, and keep them as clean and sanitary as their condition permits. For example, bathtub caulking that has sprouted mold and mildew may render the tub unusable (or at least disgusting), but since proper cleaning could have prevented it, you are responsible. On the other hand, if the bathroom has no fan and the window has been painted shut, the bathroom will be hard to air out; resulting mildew might be your landlord's responsibility.
• Not permit anyone on the premises who, with your permission, willfully or wantonly destroys, defaces, damages, impairs, or removes any part of the structure or dwelling unit or the facilities or equipment -- and of course, you yourself must not do any such thing.
• Occupy the premises as your home, using it only as it was designed or intended to be used for living, sleeping, cooking, or dining. For example, you can't use the dining room as a machine shop and then complain about the odors in the carpet.

Agreeing to Be Responsible for Repairs

You and your landlord may have agreed that you'll take on certain repair and maintenance responsibilities. Typically, tenants agree to do "routine maintenance" only. Unfortunately, landlords are rarely specific as to what that term means. And, as we've just explained, sometimes "routine" chores (such as replacing a thermostat) can be the difference between a fit rental and one that is legally uninhabitable. On the other hand, some expensive maintenance (such as a new paint job) has more to do with cosmetics than habitability. If you agree to do maintenance and repairs, it's important to understand the scope of your duties.

If you've taken on "routine" maintenance, chances are that you and the landlord expect you'll fix things that aren't overly expensive or complicated, and that don't involve getting into the building's structure or major heating or ventilation systems. For example, fixing a clogged toilet, replacing a front door lock, and replacing a cracked window in your apartment rental are routine tasks. Reroofing, rebuilding the lobby stairs, or replacing heating ductwork is not. If you've rented a single-family home, your responsibilities may be a bit larger, especially if you have proven yourself to have the skill, time, and inclination to take the jobs on.

Tenants who agree to perform maintenance may legally waive, or give up, their rights to repair and deduct (or withhold rent) for those specific repairs. (CC § 1942.1; see also Knight v. Hallsthammar, 29 Cal.3d 46 (1981).) This stands to reason -- having secured a rent reduction (or payment) in exchange for your promise to attend to a type of repair, you shouldn't be able to turn around and demand that the landlord do the very job you said you'd do. This is the only situation in which waivers of your "big stick" remedies will stand up in court.

How to Get Action From Your Landlord: The Light Touch

Knowing that you have a legal right to habitable housing and getting it are, obviously, horses of very different colors. A lot depends on the attitude of your landlord -- but some depends on your strategy, too. Here are some tips to maximize your chances of getting quick results, short of using the big sticks that we explain in the next section.

Put Repair Requests in Writing

By far the best approach is to put every repair and maintenance request in writing, keeping a copy for your files. You may want to call first, but be sure to follow up with a written request.

Written communications to your landlord are important because they:

• are far more likely to be taken seriously than face-to-face conversations or phone calls, because it's clear to the landlord you're keeping a record of your requests
• are less likely to be forgotten or misunderstood
• satisfy the legal requirement that you give your landlord a reasonable opportunity to fix a problem before you withhold rent or exercise other legal rights (see "What to Do If the Landlord Won't Make Repairs," below), and
• are evidence in case you ever need to prove that the serious problems with your rental were the subject of repeated repair requests.

In your request, be as specific as possible regarding the problem, its effect on you, what you want done, and when. For example, if the thermostat on your heater is always finicky and often doesn't function at all, explain that you have been without heat during the last two days during which the nighttime low was below freezing -- don't simply say "the heater needs to be fixed." If the problem poses a health or safety threat, such as a broken front door lock or loose step, say so and ask for it to be fixed immediately. Competent landlords will respond extra quickly to genuinely dangerous, as opposed to merely inconvenient, situations. Finally, be sure to note the date of the request and how many requests, if any, have preceded this one.

If your landlord provides a repair request form, use it. If not, do your own. (See the sample shown below.) Always make a copy of your request and keep it in a safe place in your files.

In dangerous situations, you must take precautions, too. Once you're aware of a dangerous situation, you must take reasonable steps to avoid injury. Don't continue to use the outlet when you see sparks fly from the wall; don't park in the garage at night if the lights are burned out and there is a safer alternative. If you don't take reasonable care and are injured and sue the landlord, you can expect a judge or jury to hold the landlord only partially responsible. (See Chapter 10.)

[Sample Request for Repair or Maintenance] omitted for online sample chapter.

Deliver Your Repair Request to the Landlord

If your landlord has an on-site office or a resident manager, deliver your repair request personally. If you mail it, consider sending it certified (return receipt requested), or use a delivery service (such as Federal Express) that will give you a receipt establishing delivery. If you fax your request, ask for a call (or a return fax) acknowledging receipt. Although taking steps to verify delivery will cost a little more, it has two major advantages over regular mail:

• It will get the landlord's attention and highlight the fact that you are serious about your request.
• The signed receipt is evidence that the landlord did, in fact, receive the letter. You may need this in the event that the landlord fails to make the repair and you decide to do it yourself or withhold rent. If a dispute arises as to your right to use a self-help measure, you'll be able to prove in court that you satisfied the legal requirement of notifying the landlord first.

If your first request doesn't produce results -- or at least a call or note from the landlord telling you when repairs will be made -- send another. Mention that this is the second (or third) time you have brought the matter to the landlord's attention. If the problem is getting worse, emphasize this fact. If you have low hopes for any response and are beginning to think of your next move (a self-help remedy, as described below), you might mention your intent to use such a remedy. And, of course, be sure to keep a record of all repair requests.

Keep Notes on All Conversations

Besides keeping a copy of every written repair request, don't neglect to keep a record of oral communications, too. If the landlord calls you in response to your repair request, make notes during the conversation or immediately afterward; write down the date and time that the conversation occurred and when you made your notes. These notes may come in handy to refresh your memory and help you reconstruct the history of your case. In most situations, if a dispute ends up in court, and you are unable to remember the details of the conversation, your notes can be introduced in court to fill the gap.

You can keep track of other kinds of communications, too. For example, if your dealings with your landlord are accomplished online, simply print out each message.

Don't tape-record phone conversations. It's illegal under California law to tape-record a phone conversation without the permission of the other party. (Penal Code § 632.)

Put the Landlord's Promises in Writing

If you and your landlord agree on a plan of action, it's especially wise to write down your understanding of this agreement. Send a copy to the landlord, inviting him to reply if he thinks that you have missed or misstated anything. (This is called a letter of understanding, which we explain in Chapter 2.) If he doesn't write back, the law presumes that he agreed with your version of the conversation. See the sample Letter of Understanding Regarding Repairs, below.

[Sample Letter of Understanding Regarding Repairs] omitted for online sample chapter.

What to Do If the Landlord Won't Make Repairs

If your persistent and businesslike requests for repairs are ignored, you can take stronger measures. Your options include:

• calling state or local building or health inspectors
• withholding the rent
• repairing the problem (or having it repaired by a professional) and deducting the cost from your rent
• moving out, or
• paying the rent and then suing the landlord for the difference between the rent you paid and the value of the defective premises.

If the landlord hasn't fixed a serious problem that truly makes your rental unit uninhabitable -- rats in the kitchen -- you will want to take fast action. But before you use any of these big sticks, make sure that you can answer "Yes" to all of the questions in "Big Stick Prerequisites," below.

Before doing repairs yourself, withholding rent, or using another "big stick," make sure you have proof of how bad the problem was. Take pictures of the problem or ask others to view the problem and write a description. Also consider asking an experienced and impartial contractor or repairperson to examine the situation and give you a written description of the problem and estimate for repair. Be sure the description is signed and dated.

Report Code Violations to Housing Inspectors

A local building, health, or fire department usually gets involved when a tenant complains (though a change in ownership or owner financing may also trigger an inspection). The agency inspects the building and, if problems are found, issues a deficiency notice that requires the owner to remedy all violations. A landlord who fails to comply can face civil and criminal penalties -- including not being able to evict a tenant of the property for nonpayment of rent. (H&S §§ 17997 to 17997.5.)

In some cases, a tenant's complaint about a single defect can snowball, with the result that several agencies require the landlord to make needed repairs. For example, say a tenant complains to the health department about a lack of heat. During its inspection, the health department observes an unsafe stove and an unventilated bathroom. The health department notifies the fire department about the stove and tells the building department about the bathroom, which results in inspections by both departments.

If you decide to complain to building, health, or fire inspectors, start with your local phone book and contact the appropriate local agency. You'll soon get routed to the inspections department.

Withhold the Rent

If you conclude that your landlord has not met the responsibility of keeping your unit livable, you may be able to stop paying any rent to the landlord until the repairs are made. Before you can properly withhold the rent, be sure that you can say "Yes" to the questions in "Big Stick Prerequisites," above.

When you withhold rent, you simply stop paying rent until the landlord fixes the problem (at least two cities, however, have established escrow programs for tenants who withhold rent, as described in Step 1, below). The theory is that the landlord will be powerfully motivated to do the repair when the rent has stopped coming in. Once the rental is habitable, you begin paying rent. You will also owe the landlord a portion of the withheld rent, which reflects the value of the rental in its unfit condition (see "Paying the Landlord for the Value of the Unfit Rental," below, for methods of computing the proper amount).

Be sure you're ready to risk your tenancy. We can't say it enough times: Before withholding rent, be sure your ducks are in order and you are willing to risk an eviction lawsuit. If you can address the problem without incurring that risk (such as by suing in small claims court), you may be better off.

The Rent Withholding Steps

Here are the steps to follow when you've decided to withhold rent.

Step 1: Check for any local laws on rent withholding. State law does not require you to pay the rent into an escrow account (although it's a good idea, as explained below). But in at least two cities, Los Angeles and Sacramento, when landlords haven't complied with repairs ordered by building or health inspectors, the city can impose a rent escrow. Tenants pay rent directly to the city, which can authorize distributions for the purposes of repair only. Check your local ordinances to see if a rent escrow ordinance applies to you. (We explain how to find local law in Chapter 1.)

Step 2: Notify your landlord. Hopefully, you've followed our suggestions and sent written repair requests to your landlord. You may have already signaled your intent to withhold the rent if the problem isn't fixed. If you haven't yet, now's the time to give your landlord written notice of the problem and your intent to withhold rent. A sample letter is shown below. In your letter, refer to the California case ( Green v. Superior Court, 10 Cal. 3d 616 (1974)) that allows withholding. Send the letter "return receipt requested."

[Sample Letter Telling the Landlord You Intend to Withhold Rent] omitted for online sample chapter.

Step 3: Collect evidence. In case your landlord tries to evict you for nonpayment of rent, you will want to prepare your defense from day one. You'll need to prove that the problem truly is serious and that you complied with the notice requirements of the rent withholding law. Of course, you'll want to keep copies of all correspondence with the landlord, plus photographs of the problem. Be sure to consider other ways (besides your own testimony) you can convince the judge that the problem was real and serious. For example, if your heater delivers a frigid blast, you'll want an estimate from a heating repairperson that corroborates the fact that the heater doesn't work.

In Superior Court, where evictions are handled, you cannot simply present a repairperson's written description of the problem (as you could in small claims court). For this reason, when choosing your repairperson/witness, pick someone whom you think will come to court to testify about the nature of the problem.

Step 4: Repeat your request for repairs. If the landlord hasn't responded satisfactorily to your first letter, give the landlord one last deadline -- say, 48 hours or whatever period you feel is reasonable under the circumstances.

Step 5: Deposit your rent in escrow. Even if your city does not require this, we recommend that you deposit the withheld rent into an escrow account held by a neutral third party. This will dispel any suggestion that you are withholding rent simply in order to avoid paying it.

You can try asking a mediation service if it will establish an account for this purpose. Or, if you have an attorney, ask your lawyer to deposit the withheld rent in the lawyer's "trust account." You can also set up a separate bank account of your own and use it only for withheld rent. If you must pay for any of these services, you can ask the court to order the landlord to reimburse you if the landlord brings an eviction action (or you can deduct the cost of the escrow from the reduced rent you'll pay the landlord upon completion of the repairs, as explained below).

Your Landlord's Response

If a court or housing authority is holding your withheld rent, as in Los Angeles or Sacramento, your landlord cannot file an eviction action against you based on nonpayment of rent. The landlord can ask for release of some of the withheld rent to pay for repairs. While repairs are being made, you might be told to continue to pay the entire rent to the court or housing authority, or you may be directed to pay some rent to the landlord and the balance to the court or housing authority. When the dwelling is certified as fit by the local housing authorities or the court, any money in the account is returned to the landlord, minus court costs and inspection fees.

Your landlord's response is likely to be quite different, however, when no housing authority is involved. If the landlord thinks your withholding is unjustified (or not done according to law, as would be the case if you failed to give the landlord a chance to repair the problem before you withheld the rent), the landlord will probably send you a three-day notice to pay rent or vacate, followed by a Summons and Complaint (an eviction lawsuit) if you do neither. In your Answer to the Complaint, you can raise the unfitness of the rental as an "affirmative defense" to the eviction suit. (Affirmative defenses to evictions are covered in Chapter 15.)

Paying the Landlord for the Value of the Unfit Rental

Many tenants make the unfortunate mistake of thinking that if they withhold the rent correctly, they won't have to pay anything for the months they endured an unfit rental. This is not so. Unless you've had to move out because of the repair problem, you owe the landlord the reasonable rental value of the rental in its unfit state. In legalese, this is a retroactive rent "abatement," or reduction.

You may get retroactive rent abatement through a court process (if the landlord has filed for eviction, but you've prevailed because the unit was unfit), or through negotiation with your landlord (when no court is involved). Here's how a judge will determine how much the landlord should compensate you for the inconvenience of having lived in a substandard rental unit. If a court is not involved, you can use this same system in negotiating with your landlord.

Market value. One-way to determine how much rent you owe for a substandard rental is to ask: What's the fair market value of the premises in that condition? For example, if an apartment with a broken heater normally rented for $1,200 per month but was worth only $600 without operable heating, the landlord would be entitled to only $600/month from the withheld rent. Of course, the difficulty with this approach -- as with many things in law -- is that it is staggeringly unrealistic. An apartment with no heat in winter has no market value, because no one would rent it. As you can see, how much a unit is worth in a defective condition is extremely hard to determine.

Percentage reduction. Another slightly more sensible approach is to start by asking what part of the unit is affected by the defect, and then to calculate the percentage of the rent attributable to that part. For example, if the roof leaked into the living room of your $900/month apartment, rendering the room unusable, you could reduce the rent by the percentage of the rent attributable to the living room. If the living room is the main living space and the other rooms are too small to live in comfortably, the percentage of loss would be much greater than it would be in more spacious apartments. Obviously, this approach is far from an exact science, too.

We recommend you use both methods to calculate the unit's reduced, real value. Sometimes, the calculations will be simple -- for example, using the fair market value approach, if a broken air conditioner reduces your flat to an oven, its rental value can be determined by consulting ads for nonair- conditioned flats in your area. The percentage reduction method might, in some situations, yield a lower rental value. After you've used both methods, ask the judge to adopt the lower figure (or negotiate for that figure when dealing directly with your landlord) and to rule that the landlord is entitled only to that amount of rent per month, times the number of months that you endured the substandard conditions. The difference between the full rent and the realistic rent should go to you.

You must pay the retroactive, abated rent within five days of winning an eviction lawsuit. If you don't pay on time, the landlord will win and you'll be evicted. The lesson is clear: When withholding rent, keep it in a safe place (such as an escrow account) so that you can promptly pay the abated rent.

Example: When Henry and Sue moved into their apartment, it was neat and well maintained. Soon after, the building was sold to an out-of-state owner, who hired an off-site manager to handle repairs and maintenance. Gradually, the premises began to deteriorate. At the beginning of May, 15 months into their two-year lease, Henry and Sue could count several violations of the building code, including the landlord's failure to maintain the common areas, remove the garbage promptly, and fix a broken water heater.

Henry and Sue sent numerous requests for repairs to their landlord over a two-month period, during which they gritted their teeth and put up with the situation. Finally they had enough and checked out their state's rent withholding law. They learned a tenant could pay rent into an escrow account set up by their local court. Henry and Sue went ahead and deposited their rent into this account.

In response, Henry and Sue's landlord filed an eviction lawsuit. In their defense, Henry and Sue pointed to the numerous code and habitability violations. The court agreed with the couple, did not allow the eviction, and ordered the following:

• During the time that they lived in these uninhabitable conditions, Henry and Sue were not required to pay full rent. Using the "market value" approach, the court decided that their defective rental was worth half its stated rent. Accordingly, since the landlord owed them a refund for portions of their rent for May and June, Henry and Sue would be paid this amount from the escrow account.
• The balance of the rent in the account would be released to the landlord (less the costs of the escrow and the tenants' attorney fees), but only when the building inspector certified to the court that the building was up to code and fit for human habitation.
• Henry and Sue could continue to pay 50% of the rent until needed repairs were made and certified by the building inspector.

Make Repairs and Deduct the Cost -- "Repair and Deduct"

Another powerful legal remedy for getting major repairs accomplished is called "repair and deduct." (CC § 1941-1942.5.) It works like this: If you have tried and failed to get the landlord to fix a serious defect that renders your rental unfit, you can hire a repairperson to fix it (or buy a replacement part and do it yourself ) and subtract the cost from the following month's rent. You can't spend more than one month's rent, and cannot use this remedy more than twice in any 12-month period. If the repair or replacement problem is the result of your failure to use the rental with ordinary care, or if it concerns a matter that you're responsible for (such as maintaining the unit in a clean and sanitary state), you cannot use this remedy.

When to Use Repair and Deduct

Repair and deduct's restrictions on how much you can spend (and how often) make the remedy a poor choice for tenants when it comes to expensive projects such as a major roof repair. Obviously, if you're limited to a twice-a-year expenditure of your monthly rent, you are not going to be able to pay for a $20,000 roof retrofit. Sometimes, however, a number of tenants might pool their dollar limits to accomplish a costly repair. (Tenants working together is covered in Chapter 16.)

However, as we've explained, a major repair is one that remedies a habitability problem, regardless of its cost. There may be times when a relatively inexpensive job will turn an unfit rental into a habitable one. In these situations, if you're confident that you can competently choose a repairperson or replacement part, you will probably be better off using this remedy instead of withholding the rent. Here's why:

• It's faster. Since you'll be doing the work or supervising its completion, you can get going right away (after you've given the landlord time to do it himself, as explained below). With rent withholding, you'll have to wait for the landlord to do the work. Secondly,
• When the job is not costly, it's less risky. When you use this remedy, you will give your landlord a short rent check. The landlord can terminate your tenancy and file for eviction on that basis, if she feels you've used the remedy improperly. But she'll be less likely to do so if the check she gets is short by only a portion of the monthly rent, instead of not receiving any check at all, which happens with rent withholding.

The Repair and Deduct Steps

Follow these steps when deciding to use the repair and deduct remedy.

Step 1: Notify your landlord in writing of the problem and give him a reasonable time to fix it. If you've tried gentle persuasion, as suggested above, you've already taken this step. It doesn't hurt to write again, however, and signal your intention to invoke your right to repair and deduct. As ever, be sure to keep copies of your letters, and send them "return receipt" so that the landlord cannot claim later that he didn't receive them.

The big question here is: What's a "reasonable time" for the landlord to take action? Under the statute, 30 days is "presumed" reasonable. This means that if you wait 30 days, the landlord will have a hard time convincing a judge that your subsequent use of the remedy was too hasty. However, in some situations, a shorter time would also be reasonable, and you could act sooner than 30 days if circumstances warrant. For example, no heat in the midst of a cold spell requires a faster response than a finicky heater in the summer time; and a broken front door lock in an iffy neighborhood is worthy of immediate attention -- in some situations, no more than a few hours would be a reasonable time to wait before handling the problem yourself.

Step 2: Collect evidence. In case your landlord tries to evict you for nonpayment of rent, you will want to prepare your defense from day one. See the same advice under Step 3 in "Withhold the Rent," above.

Step 3: Gather bids or collect pricing information. By choosing to use this remedy, you're doing the landowner's job for him. Put yourself in his shoes and approach the job as if the property belonged to you. While you don't have to hire the cheapest laborer or firm in the phone book, you do need to pay attention to cost. At the same time, the quality of the work needs to be in keeping with the standards that the landlord applies to the rest of the property. For example, if you're looking for a furnace repairperson, it might make sense to use an authorized repair shop if you know that the landlord consistently chooses "safe" repairmen. On the other hand, a handyman might be just fine if the landlord himself does the work (when he does it) or hires handymen himself.

Save your research or bids in a safe place. You may need them should the landlord challenge you on your choice and whether you made a good faith effort to secure the best deal.

Step 4: Attach copies of the bills, receipts, or invoices, plus evidence that you have paid them, to your next rent check, with a letter explaining why the rent is reduced. Do not reduce the rent until you have done the work and paid for it.

[Sample Letter Telling the Landlord You Intend to Repair and Deduct] omitted for online sample chapter.

Move Out When Repairs Haven't Been Done

If your dwelling isn't habitable and hasn't been made so despite your complaints and repair requests, you also have the right to move out. This will discharge you from any further obligations under the rental agreement or lease. (CC § 1942(a).) This drastic measure is justified only when there are truly serious problems, such as the lack of essential services, or the presence of environmental health hazards such as lead paint dust. Chapter 11 explains your right to move out because of environmental toxins.

Your right to move out of a seriously unfit dwelling is borrowed directly from consumer protection laws. Just as the purchaser of a significantly defective car may return the car for a refund, you can consider the housing contract terminated and simply return the rental unit to the landlord if the housing is unlivable.

The law, of course, has a convoluted phrase to describe this simple concept. It's called "constructive eviction," which means that the landlord, by supplying unlivable housing, has for all practical purposes "evicted" you. Once you have been constructively evicted (that is, you have a valid reason to move out), you have no further responsibility for rent.

Before moving out, you must give the landlord notice of the problem and a reasonable opportunity to fix it. Refer to Steps 1 and 2 in "The Repair and Deduct Steps," above, for guidance on how to proceed.

If you move out permanently because of habitability problems, you may want to sue the landlord (in small claims court) to compensate you for outof-pocket losses. For example, you may be able to recover moving expenses and the cost of a hotel for a few days until you find a new place. Also, if the conditions were substandard during prior months when you did pay the full rent, you may sue to be reimbursed for the difference between the value of the defective dwelling and the rent paid. In addition, if you are unable to find comparable housing for the same rent and end up paying more rent than you would have under the old lease, you may be able to recover the difference.

Move Out When the Premises Have Been Destroyed

If your home is totally damaged by natural disaster or any other reason beyond your control, which obviously renders it unlivable, you have the legal right to consider the lease or rental agreement at an end and to move out without responsibility for future rent. (CC § 1933(4).) You are not, however, entitled to reimbursement for rent payments you've already made. ( Pedro v. Potter, 197 Cal. 751 (1926).)

If you have renter's insurance, file a claim. You may get help for resettlement costs and coverage for your lost or destroyed possessions. Coverage may not extend to destruction caused by floods or earthquakes. (Renter's insurance is covered in Chapter 2.)

Partial destruction, however, is another matter. If you must find another place to live because of partial damage to or destruction of the premises -- no matter the cause -- you and the landlord will face the question of whether to terminate the lease or rental agreement or just suspend it while repairs are made. Your course of action depends on whether your lease or rental agreement addresses this eventuality (if it doesn't, state law takes over).

Check Your Lease or Rental Agreement

First, check your lease or rental agreement for a clause covering what happens if the premises are partially damaged or destroyed. The rental document may give the landlord the right to terminate your rental or merely suspend it while repairs are made. If the landlord decides to keep the lease or rental agreement alive during repairs, you won't have to pay the landlord rent while you're living elsewhere, but you also won't get rental assistance from the landlord if your replacement housing is more expensive than your regular rent. Or, your landlord can declare the rental to be over (even if you'd rather move out temporarily). If you disagree with the landlord's call, all you can do is try to change the landlord's mind.

Default Rules for Partially Destroyed Rentals

Most rental agreements and leases do not include clauses that deal with the partial destruction of the property. If your rental documents are silent on the issue, the fate of your rental will depend on the application of the facts of your situation to state law, which provides that the lease or rental agreement will terminate if:

• the destruction is not the fault of the tenant
• the landlord had reason to believe, when the lease or rental agreement was signed, that the destroyed portion or aspect of the rental premises was a "material inducement" to the tenant (that is, a major reason why the tenant rented the premises), and
• the tenant gives notice to the landlord that he considers the lease to be over because of the destruction of an important aspect of the premises. (CC § 1932(2).)

Example: Sandra wanted a rental with a large, fenced yard that would be a safe play area for her three small children. When she saw Alex's duplex, she was delighted at the spacious backyard and told him that it was the perfect answer to her needs. When he offered to show her another duplex that had no yard but a larger interior, she declined and told him that her most important requirement was the yard, and that she would make do with smaller rooms. Sandra signed a year's lease in late fall.

The weather that winter was exceptionally severe, and the rainstorms caused the hill behind Sandra's home to slide, burying the backyard in a foot of mud and crushing the fences. Although the house itself escaped damage, the yard was ruined. Sandra wrote to Alex to tell him that she considered the lease to be over, since the backyard, now unusable, was a major reason for her decision to rent. Sandra moved out and although she did not recover the balance of that month's rent, she was not responsible for any future rent. She got her entire security deposit back when Alex examined the house and determined that there was no damage beyond normal wear and tear.

Sue the Landlord

A consumer who purchases a product -- be it a car, a hair dryer, or a steak dinner -- is justified in expecting a minimum level of quality, and is entitled to compensation if the product is seriously flawed. The same goes for tenants. If your rental is not habitable, you can sue the landlord -- whether or not you move out. You can use small claims court, which allows claims of up to $7,500.

Suing the landlord makes sense only if you can safely continue to live in your rental. For example, if the roof leaks only into the second bedroom, and you can move the kids into the living room for a while, you might want to stay and sue in order to avoid the hassle of moving, arranging for the repair yourself (repair and deduct), or figuring out the complications of rent withholding. But you wouldn't want to stay and sue if you are without heat in the winter or in danger of electrocution every time you use the kitchen stove.

What are the pros and cons of suing your landlord instead of using repair and deduct or rent withholding? On the positive side, if you lose your lawsuit you'll have lost some time and money, but you won't be evicted, as can happen with the unsuccessful use of repair and deduct or rent withholding. But suing isn't entirely risk-free, especially if you're a month-to-month tenant or nearing the end of a lease you would like to renew. Your annoyed landlord may simply decide to terminate or not renew. Although state antiretaliation laws theoretically protect you, asserting your rights will mean the threat of or the bringing of a lawsuit, a dreary prospect. (Landlord retaliation is covered in Chapter 15.)

In your lawsuit, you ask the judge to rule that your unrepaired rental was not worth what you've paid for it. You want to be paid the difference between the monthly rent and the real value of the unit, times the number of months that you've lived with the substandard conditions. In short, you'll ask for a retroactive rent decrease -- what we explained as a rent abatement above in "Withhold the Rent." In addition, you can sue your landlord for:

• lost or damaged property -- for example, furniture ruined by water leaking through the roof
• compensation for personal injuries -- including pain and suffering -- caused by the defect (see Chapter 12), and
• your attorney fees and court costs if you had to hire a lawyer to sue the landlord (Chapter 2 discusses attorney fees).

You'll probably want to ask the court for an order directing the landlord to repair the defects, with rent reduced until they are fixed. Unfortunately, the judge will probably tell you that in small claims court, judges can only order the landlord to pay you for your losses. In practice, usually the money judgment gets the landlord's attention and repairs follow soon thereafter.