California Tenants' Rights
California Tenants' Rights
David Brown, Attorney and Janet Portman, Attorney
June 2013, 19th Edition
Protecting California tenants' rights since 1971!
Many tenants have to deal with roommates who don't pull their weight, neighbors who routinely engage in illegal activities, landlords who don't know -- or won’t follow -- national or state laws and local rent ordinances. Use this book to give you the information and tips you need to protect and assert your rights as a renter in California.
Find out how to:
- understand and negotiate a lease
- inspect a rental before moving in
- fight discrimination
- get needed repairs and maintenance
- deal with a nosy landlord
- break a lease with minimum fall-out
- get your security deposit back
- figure out rules for rent increases
- fight an eviction
The 18th edition of California Tenants' Rights is completely updated with the latest laws and official legal forms, and covers new legislation on protections for tenants caught in foreclosed properties.
“Your legal rights and how to pursue them are spelled out in California Tenants’ Rights.”
-San Diego Union-Tribune
“Every renter in California should know about California Tenants’ Rights…”
-San Francisco Examiner
“ Want to break a lease? The landlord won’t make needed repairs? Want to get your deposit back when you move out? The answer to these and many other questions about the magic of renting are answered in detail in California Tenants’ Rights.”
Forms to use when your tenancy begins
- Landlord-Tenant Checklist
- Fixed-Term Residential Lease
- Month-to-Month Residential Rental Agreement
Forms to use during your tenancy
- Notice of Rent Withholding
- Notice to Repair
- Notice of Rent Withholding
Forms to use when fighting an eviction
- Proof of Service by First-Class Mail—Civil
- Proof of Service by First-Class Mail—Civil (Persons Served)
- Request to Waive Court Fees
- Information sheet on Waiver of Superior Court Fees and Costs
- Application for Waiver of Court Fees and Costs
- Information Sheet on Waiver of Court Fees and Costs
- Order on Application for Waiver of Additional Court Fees and Costs
- Prejudgment Claim to Right of Possession
- Blank Numbered Legal Paper
- Blank Numbered Legal Paper With Superior Court heading
- Proof of Service by Mail
- Points and Authorities in Support of Demurrer
- Notice of Hearing on Demurrer
- Answer -- Unlawful Detainer
- Request to Inspect and for Production of Documents
- Form Interrogatories -- Unlawful Detainer
- Settlement Agreement
- Demand for Jury Trial
Forms to use if you lose an eviction
- Application and Declaration for Relief from Eviction
- Order Granting Relief From Eviction
- Application and Declaration for Stay of Eviction
- Order Granting Stay of Eviction
- Notice of Appeal and Notice to Prepare Clerk's Transcript
- Claim of Right to Possession and Notice of Hearing
Table of Contents
California Tenants' Rights: Your Legal Companion 1
Tenant Rights and Responsibilities 2
Eviction Defense in California 2
California Rent Control 2
Legal Forms, Letters, and Checklists for California Tenants 2
Looking for a Place and Renting It 5
Get Organized and Set Your Rental Priorities 7
Learn About Leases and Rental Agreements 8
Typical Provisions in Leases and Rental Agreements 10
Lease Terms to Watch Out For 15
Holding Deposits and Credit-Check Fees 19
Rental Applications and Credit Reports 20
How Landlords Must Handle Your Credit Information 21
Permissible Reasons for Rejecting Tenants 22
How to Check a Place Over 22
How to Bargain for the Best Deal 26
Get All Promises in Writing 27
The Landlord-Tenant Checklist 28
Cosigning Leases 28
Know Your Manager 35
Sharing a Home 37
The Legal Obligations of Roommates to the Landlord 38
Having a Friend Move In 38
All About Rent 45
How Much Can the Landlord Charge? 46
When Is Rent Due? 46
Form of Rent Payment 47
Late Fees and Returned Check Charges 47
Partial Rent Payments 48
Rent Increases 48
Rent Increase Notices 49
Rent Control and Eviction Protection 51
General Types of Rent Control Laws 54
Rent Control Board Hearings 55
What to Do If the Landlord Violates Rent Control Rules 59
Forbidden Types of Discrimination 62
Legal Reasons to Discriminate 64
How to Tell If a Landlord Is Discriminating 67
What to Do About Discrimination 67
Sexual Harassment by Landlords or Managers 69
Tenant's Right to Privacy 71
Permissible Reasons to Enter 72
What to Do About a Landlord's Improper Entry 74
Other Types of Invasions of Privacy 76
Major Repairs & Maintenance 79
Your Basic Right to Livable Premises 80
Your Repair and Maintenance Responsibilities 84
Agreeing to Be Responsible for Repairs 85
How to Get Action From Your Landlord: The Light Touch 86
What to Do If the Landlord Won't Make Repairs 88
Minor Repairs & Maintenance 99
Minor Repairs: What Are They? 100
The Landlord's Responsibilities 100
Agreeing to Do Maintenance 103
Getting the Landlord to Make Minor Repairs 104
Making Minor Repairs Yourself 108
Improvements, Alterations, & Satellite Dishes 111
Improvements That Become Part of the Property 112
Improving Your Rental Without Enriching Your Landlord 113
Cable TV Access 115
Satellite Dishes and Other Antennas 116
Injuries on the Premises 121
What to Do If You're Injured 122
Is the Landlord Liable? 125
If You're at Fault, Too 132
How Much Money You're Entitled To 133
Environmental Hazards 135
Carbon Monoxide 152
Crime on the Premises 163
The Landlord's Basic Duty to Keep You Safe 164
Problems With Other Tenants 168
Illegal Activity on the Property and Nearby 170
Getting Results From the Landlord 171
Protecting Yourself 177
Breaking a Lease, Subleasing, and Other Leasing Problems 179
What Happens When the Lease Runs Out 180
Subleases and Assignments 180
Subleasing and Returning Later 181
How to Break a Lease 181
Belongings You Leave Behind 185
Security Deposits and Last Month's Rent 187
Amount of Deposit 188
Nonrefundable Deposits 188
What the Deposits May Be Used For 189
Landlord's Duty to Return Deposits 189
Effect of Sale of Premises on Security Deposits 191
Effect of Foreclosure on Security Deposits 191
May the Landlord Increase the Security Deposit? 191
Avoiding Deposit Problems 192
When the Landlord Won't Return Your Deposit 192
Rent Withholding as a Way to Get Deposits Back in Advance 195
Interest on Security Deposits 196
Last Month's Rent 196
When Your Landlord Demands More Money 198
Overview of Evictions and Tenancy Terminations 199
Illegal Self-Help Evictions 200
Illegal Retaliatory Evictions 201
Overview of Eviction Procedure 202
Tenancy Termination Notices 203
Notice to End a Fixed-Term Lease 203
The Three-Day Notice Because of Nonpayment of Rent or Other
Tenant Violation 204
The 30-, 60-, or 90-Day Notice to Terminate a Month-to-Month Tenancy 206
Your Options After a Three-Day or 30-, 60-, or 90-Day Notice Is Served 209
Stopping an Eviction by Filing for Bankruptcy 209
Your Rights If Your Landlord Suffers Foreclosure 210
The Eviction Lawsuit 215
Key Eviction Rule 217
Where Eviction Lawsuits Are Filed 217
The Complaint and Summons 217
What If a Tenant Is Not Named in the Complaint? 220
The Motion to Quash 221
The Demurrer 229
The Answer 236
Setting Aside a Default Judgment 244
Discovery: Learning About the Landlord's Case 244
Negotiating a Settlement 248
Summary Judgment 251
The Trial 252
The Judgment 255
Stopping an Eviction 255
Postponing an Eviction 256
Appeal From an Eviction 258
After the Lawsuit - Eviction by the Sheriff or Marshal 260
Renters' Insurance 265
Condominium Conversion 267
Legal Protection for Tenants 268
Changing the Law 270
Lawyers, Legal Research, and Mediation 271
Typing Services and Unlawful Detainer Assistants 275
Legal Research 275
Rent Control Chart 281
Reading Your Rent Control Ordinance 282
Finding Municipal Codes and Rent Control Ordinances Online 283
Rent Control Rules by California City 285
How to Use the Interactive Forms on the Nolo Website 319
Editing RTFs 320
List of Forms Available on the Nolo Website 320
Using California Judicial Council Government Forms 322
Fixed-Term Residential Lease
Month-to-Month Residential Rental Agreement
Notice to Repair
Notice of Rent Withholding
Agreement Regarding Tenant Alterations to Rental Unit
Request to Waive Court Fees* (a Judicial Council form)
Order on Court Fee Waiver (Superior Court)* (a Judicial Council form)
Prejudgment Claim of Right to Possession* (a Judicial Council form)
Blank Numbered Legal Paper
Blank Numbered Legal Paper With Superior Court Heading
Proof of Service by First-Class Mail - Civil (a Judicial Council form)
Attachment to Proof of Service by First-Class Mail - Civil (Persons Served) (a Judicial Council form)
Points and Authorities in Support of Demurrer
Notice of Hearing on Demurrer
Answer - Unlawful Detainer* (a Judicial Council form)
Request to Inspect and for Production of Documents
Form InterrogatoriesÐUnlawful Detainer* (a Judicial Council form)
Demand for Jury Trial
Application and Declaration for Relief From Eviction
Order Granting Relief From Eviction
Application and Declaration for Stay of Eviction
Order Granting Stay of Eviction
Notice of Appeal and Notice to Prepare Clerk's Transcript
Claim of Right to Possession and Notice of Hearing* (a Judicial Council form)
Minor Repairs & Maintenance
Minor Repairs: What Are They?................................................................ 100
The Landlord’s Responsibilities................................................................ 100
Building Codes..................................................................................... 101
Promises in the Lease or Rental Agreement........................................ 101
Promises in Ads................................................................................... 101
Promises Made Before You Rented the Unit........................................ 102
Implied Promises.................................................................................. 102
Agreeing to Do Maintenance.................................................................... 103
Getting the Landlord to Make Minor Repairs............................................ 104
Appealing to Your Landlord.................................................................. 104
Reporting Code Violations.................................................................... 106
Suing in Small Claims Court.................................................................. 107
Making Minor Repairs Yourself................................................................. 108
Evaluating Your Skills and Time............................................................ 109
Getting the Landlord’s Permission........................................................ 109
Ask a group of tenants which rental problem is most annoying, and chances are you’d hear, “Repairs!” Most wouldn’t be referring to major problems that make a unit unlivable. What really bugs tenants are the day-to-day but nonetheless important problems: leaky faucets, malfunctioning appliances, security devices that don’t work, worn carpets, noisy heaters, hot water heaters that produce a pathetic quantity of tepid water, and dozens of other frustrating breakdowns.
Unfortunately, if your landlord refuses to attend to minor repairs, you don’t have much legal clout. You can’t withhold rent, move out, or use most of the other “big stick” legal weapons discussed in Chapter 6. Even so, there are several proven strategies for getting results.
Minor Repairs: What Are They?
If a landlord balks at making repairs, your first step is to decide whether the problem is major (affecting the habitability of your rental unit) or minor. This distinction is necessary because you have different legal options depending on your conclusion.
Minor repair and maintenance includes:
small plumbing jobs, like replacing washers and cleaning drains
system upkeep, like changing heating filters
structural upkeep, like replacing excessively worn flooring
small repair jobs like fixing broken light fixtures or replacing the grout around bathtub tile, and
routine repairs to and maintenance of common areas, such as pools, spas, and laundry rooms.
Don’t assume that inexpensive repairs are always minor repairs. Sometimes an extremely important repair costs very little. For example, if the only thing between you and a heated apartment is the replacement of a $45 furnace part, like a thermostat, the repair is “major” because an unheated dwelling is uninhabitable, even though the repair cost is insignificant. And because this is true, if the landlord didn’t replace the part promptly, you would probably be entitled to withhold rent or use one of the other “big stick” strategies discussed in Chapter 6. By contrast, replacing the living room carpet, which is worn but not a hazard, will be very expensive, but will be considered a minor repair if the consequence of not replacing it is less than an unfit dwelling.
Most often, minor repairs are the landlord’s responsibility. But landlords are not required to keep the premises looking just like new—ordinary wear and tear does not have to be repaired during your tenancy. (When you move out, however, the cost of dealing with ordinary wear and tear will fall on the landlord and cannot come out of your security deposit.)
The Landlord’s Responsibilities
Not every minor problem is your landlord’s legal responsibility. If you or one of your guests caused it, carelessly or intentionally, you are responsible for repairing it—or, if your lease or rental agreement prohibits you from doing so, for paying the landlord to do it. But if you had nothing to do with the repair problem and it’s not a cosmetic issue, chances go way up that your landlord is responsible, for one of the following reasons:
A state or local building code requires that the landlord keep the damaged item (for example, a kitchen sink) in good repair.
A lease or rental agreement provision or advertisement describes or lists particular items, such as hot tubs, trash compactors, and air conditioners. By implication, this makes the landlord responsible for maintaining or repairing them.
The landlord made explicit promises when showing you the unit—for example, regarding the security or air-conditioning system.
The landlord has assumed the obligation to maintain a particular feature, such as a whirlpool bathtub, because the landlord has fixed or maintained it in the past.
Each of these reasons is discussed below. If you’re not sure whether a minor repair or maintenance problem is the landlord’s responsibility, scan the discussion to find out.
Common Misconceptions About Routine Maintenance
Many tenants (and landlords) mistakenly think that every time a rental unit turns over, or a certain number of years have passed, the landlord must paint or clean drapes and carpets, or do some other kind of refurbishing. Unfortunately for tenants, the law almost never mandates cosmetic changes—even badly needed ones. Here are some common misconceptions:
Paint. California landlords are not required to repaint at specified times. Unless the paint creates a habitability problem—for example, it’s so thick around a window that the window can’t be opened, or flaking lead-based paint poses obvious health risks—the landlord can just let it go. (Lead-based paint creates so many potential problems that we discuss it separately in Chapter 10.)
Drapes and carpets. So long as drapes and carpets are not so damp or full of mildew as to amount to a health hazard, and so long as carpets don’t have dangerous holes that could cause someone to trip and fall, your landlord isn’t legally required to replace them.
Windows. You’re responsible for fixing (or paying to fix) a broken window that you or your guest intentionally or carelessly broke. If a burglar, vandal, or neighborhood child breaks a window, however, the landlord is usually legally responsible for the repair. Broken windows can sometimes be a habitability problem; see Chapter 6.
Rekeying. Unfortunately, landlords are not legally required to change the locks for new tenants. However, if you tell a landlord in writing that you are worried about renting a unit secured by locks for which previous tenants (and perhaps their friends) have keys, most landlords rekey the locks. (If the landlord knows of your concern but does not respond, and you are attacked or your place is burglarized by someone using an old key, the chances of the landlord being held liable in a lawsuit go way up. (See Chapter 13.) California landlords must, however, at least provide door and window locks. (CC § 1941.1). Chapter 11 gives you the details.
California state law (and some city ordinances) covers structural requirements, such as roofs, flooring, windows, and essential services such as hot water and heat. If your repair problem is also a violation of the building code, you may be facing a habitability problem, as discussed in Chapter 6. But building codes often cover other, less essential details as well. For example, state code requires a minimum number of electrical outlets per room. When a room has too few outlets, it’s inconvenient, but probably not unsafe or unhealthy. Likewise, if a broken circuit breaker means that you have fewer working outlets, the consequence is probably not an unfit dwelling, but the landlord is still legally required to fix the problem.
Promises in the Lease or Rental Agreement
When it comes to legal responsibility for repairs, your own lease or rental agreement is often just as important (or more so) than building codes or state laws. If your written agreement describes or lists items such as drapes, washing machines, swimming pools, saunas, parking places, intercoms, or dishwashers, your landlord must provide them in decent repair. And the promise to provide them carries with it the implied promise to maintain them.
Promises in Ads
If an advertisement for your unit described or listed a feature, such as a cable TV hookup, that significantly affected your decision to move into the particular rental unit, you have the right to hold the landlord to these promises. Even if your written rental agreement says nothing about appliances, if the landlord’s ad listed a dishwasher, clothes washer and dryer, garbage disposal, microwave oven, security gates, and Jacuzzi, you have a right to expect that all of them will be repaired by the landlord if they break through no fault of yours.
Example: Tina sees Joel’s ad for an apartment, which says “heated swimming pool.” After Tina moves in, Joel stops heating the pool regularly because his utility costs have risen. Joel has violated his promise to keep the pool heated.
The promise doesn’t have to be in words.
Example: Tom’s real estate agent showed him a glossy color photo of an available apartment, which featured a smiling resident using an intercom to welcome a guest. The apartment Tom rented did not have a working intercom, and he complained to the management, arguing that the advertisement implied that all units were so equipped. The landlord realized that he would have to fix the intercom.
Promises Made Before You Rented the Unit
It’s a rare landlord or manager who refrains from even the slightest bit of puffing when showing a rental to a prospective tenant. You’re quite likely to hear rosy plans for amenities or services that haven’t yet materialized (“We plan to redo this kitchen—you’ll love the snappy way that trash compactor will work!”). Whenever you hear promises like these, you would be wise to get them in writing, as part of (or attached to) your lease or rental agreement or, at the very least, in a prompt letter of understanding that cannot be repudiated later.
If this advice is coming to you now a bit late, and you don’t in fact have anything in writing, don’t give up hope. The oral promise is valid and enforceable—it’s just a little harder to prove that it was made. If the promised trash compactor never appears, it’s your word against the landlord’s unless you have witnesses to the conversation. You’ll be in a stronger position, proof-wise, if the promised feature is present in your unit but just doesn’t work or breaks down after you move in, as explained just below.
Example: When Joel’s rental agent shows Tom around the building, she goes out of her way to show off the laundry room, saying, “Here’s the laundry room—we have two machines now, but will be adding two more soon.” Tom rents the apartment. Two months go by and Joel still hasn’t added the new machines. Joel has violated his promise to equip the laundry room with four machines.
Suppose your rental agreement doesn’t mention a garbage disposal, and neither does any ad you saw before moving in. And, in fairness, you can’t remember your landlord ever pointing it out when showing you the unit. But there is a garbage disposal, and it was working when you moved in. Now the garbage disposal is broken and, despite repeated requests, your landlord hasn’t fixed it. Do you have a legal leg to stand on in demanding that your landlord make this minor repair? Yes. Many courts will hold a landlord legally responsible for maintaining all significant aspects of your rental unit. If you rent a unit that already has certain features—light fixtures that work, doors that open and close smoothly, faucets that don’t leak, tile that doesn’t fall off the wall—many judges reason that the landlord has made an implied contract to keep them in workable order throughout your tenancy.
The flip side of this principle is that if you pay for a hamburger, the waiter doesn’t have to deliver a steak. In other words, if your rental was shabby when you moved in, and the landlord never gave you reason to believe that it would be spruced up, you have no legal right to demand improvements—unless, of course, you can show health hazards or code violations. As when you buy secondhand goods “as is” for a low price, legally you are stuck with your deal. (But as you’ll see, “Getting the Landlord to Make Minor Repairs,” below, suggests some strategies—based on subtly showing your landlord the consequences of ignoring minor repairs—that may convince a reluctant landlord to take better care of business.)
Another factor that is evidence of an implied contract is the landlord’s past conduct. A landlord who has consistently fixed or maintained a particular feature of your rental has made an implied obligation to continue doing so.
Example: Tina’s apartment has a built-in dishwasher. When she rented the apartment, neither the lease nor the landlord said anything about the dishwasher or who was responsible for repairing it. The dishwasher has broken down a few times and whenever Tina asked Joel to fix it, he did. By doing so, Joel has established a practice that he—not the tenant—is responsible for repairing the dishwasher.
Check your lease. Landlords who want to avoid responsibility for appliance repairs often insert clauses in their leases or rental agreements stating that the appliances are not maintained by the landlord.
Using the Landlord-Tenant Checklist at the start of your tenancy will give you a record of appliances and features—and their condition. If something needs repairs, you’ll be able to use the Checklist as proof of its original condition. See Chapter 1 for instructions on using the checklist.
Agreeing to Do Maintenance
Leases and rental agreements usually include a general statement that you are responsible for keeping your rental unit clean, safe, and in good condition, and for reimbursing your landlord for the cost of repairing damage you cause, as explained at length in Chapter 6. Your lease or rental agreement will probably also say that you can’t make alterations or repairs, such as painting the walls, installing bookcases, or fixing electrical problems, without your landlord’s permission (see Chapter 8).
Landlords who are tired of maintenance and repair jobs may use the lease, rental agreement, or separate contract to give these responsibilities to a tenant. Especially if you rent a single-family home or duplex, you may be asked to agree to mow the lawn, trim the bushes, and do minor plumbing jobs and painting.
Commonly, a landlord proposes a rent reduction in exchange for some work. Or the landlord may offer other perks (a parking space, for example), or will offer an amenity if the tenant will perform the maintenance—for example, a hot tub in exchange for your promise to clean it.
Although usually legal, these arrangements often lead to dissatisfaction—typically, the landlord feels that the tenant has neglected certain tasks, or the tenant feels that there is too much work. If the dispute boils over, the landlord tries to evict the tenant.
When you take on repair duties, here’s how to protect yourself and avoid disputes:
Sign an employment agreement separate from your rental agreement or lease. This is especially important if you plan to do considerable work for your landlord on a continuing basis, such as keeping hallways, elevators, or a laundry room clean, or maintaining the landscaping. Tenants who are also building managers are in this position. Ask your landlord to pay you for your work, rather than give you a rent reduction. That way, if the landlord claims that the job is not done right, the worst that can happen is that you may be fired but your tenancy should not be affected. But if your maintenance duties are tied to a rent reduction and things go wrong, you and the landlord will have to amend the lease or rental agreement in order to reestablish the original rent. And if the maintenance jobs are spelled out in a lease clause, the landlord also has the option of terminating the lease on the grounds that your poor performance constitutes a breach of the lease. Be forewarned, however, that many landlords will not want to enter into an employer-employee relationship with you, because becoming an employer has its own set of complications.
Clearly write out your responsibilities and the landlord’s expectations. List your tasks and the frequency with which your landlord expects them to be done. Weekly tasks might include, for example, cleaning the laundry room, sweeping and wet mopping the lobby, and mowing the grass between April 1 and November 1.
Make sure the agreement is fair. Ideally, your landlord will pay you a fair hourly rate. If your only choice is a rent reduction, make sure the trade-off is equitable. If you’re getting only a $100 rent reduction for work that would cost the landlord $400 if done by a cleaning service, you’re being ripped off.
Discuss problems with the landlord and try to work out a mutually satisfactory agreement. If the landlord has complained about your work, maybe it’s because the owner underestimated what’s involved in cleaning the hallways and grounds. Your landlord may be willing to pay you more for better results or shorten your list of jobs. If not, cancel the arrangement.
Watch Out for Illegal Retaliation
Landlords who delegate some tasks are not relieved of all repair and maintenance responsibilities. For example, if you and your landlord agree that you will do gardening work in exchange for a rent reduction, and the landlord feels that you are not doing a proper job, the landlord cannot respond by shutting off your water.
Don’t perform repairs involving hazardous materials. Any repair involving old paint or insulation (opening up a ceiling or wall cavity, for example) may expose you or others to dangerous levels of toxic materials. For example, sanding a surface for a seemingly innocuous paint job may actually create lead-based paint dust; the quick installation of a smoke alarm could involve disturbing an asbestos-filled ceiling. See Chapter 10 for more information on environmental hazards.
Getting the Landlord to Make Minor Repairs
By now you should have a pretty good idea as to whether your landlord is legally responsible for fixing the particular minor problem that is bedeviling you. Your next job is to get the landlord to do it. First, try to get the landlord to cooperate. If you can’t, it may be time to take a confrontational approach.
Appealing to Your Landlord
Chances are you have already asked your landlord or manager to make repairs, only to be put off, ignored, or even told to forget it. Your next step is to write a formal demand letter—or, if you have already done it, a second one.
Before you pick up your pen or turn on your computer, take a minute to think about what words will most likely get action. Begin by remembering your landlord’s overriding business concerns: to make money, avoid hassles with tenants, and stay out of legal hot water. A request that zeroes in on these issues will likely get the job done.
Special Concerns for Month-to-Month Tenants
If you have a month-to-month tenancy, your landlord can terminate your tenancy with just 30 days’ notice (60 days if you’ve lived in the rental a year or more). That means you should think twice before trying one of the adversarial strategies discussed below—reporting your landlord for building code violations or suing in small claims court—over minor problems with your rental.
California’s antiretaliation law may ultimately protect you from a termination notice delivered in retaliation. But if you have to defend an eviction lawsuit, you may end up wishing you’d never complained about that cracked tile. Remember, you can end your tenancy with 30 days’ notice, so if you’re really unhappy with your place, maybe you should look for another.
How to Write a Persuasive Repair Request
Whether this is your first or second formal demand letter, frame your repair request along one or more of the following lines, if possible:
It’s a small problem now, but has the potential to be a very big deal. A bathtub faucet that drips badly may be simply annoying now, but devastating later if the washer gives out while you’re not home, flooding the tub and ruining the floor and downstairs neighbor’s ceiling. When you ask that the faucet be repaired, point out the risk of letting things go.
There is a potential for injury. Landlords hate to be sued. If a potential injury-causing problem is brought to their attention, it’s likely that their fear of lawsuits will overcome their lethargy, and you’ll finally get results. Say, for instance, you have asked your landlord to repair the electrical outlet in your kitchen so that you can use your toaster. If you’ve received no response, try again with a different pitch: Point out that, on occasion, you have observed sparks flying from the wall, and a short in the wiring could cause an injury or fire.
There is a security problem that imperils your safety. Landlords are increasingly aware that they can also be sued for criminal assaults against tenants if the premises aren’t reasonably secure. (Chapter 11 discusses this topic in detail.) If you can figure out a way to emphasize the security risks of not fixing a problem—for example, a burned-out lightbulb in the garage or a door that doesn’t always latch properly—you may motivate the landlord to act promptly.
The problem affects other tenants. If you can point to a disaster-waiting-to-happen that affects more than one tenant, you will greatly increase your chances of some action. For example, accumulated oil puddles in the garage threaten the safety of all tenants and guests, not just you. Faced with the possibility of a small army of potential plaintiffs, each accompanied by an eager attorney, even the most slothful landlord may spring into action.
You’re willing to try to fix it, but may make the problem worse. Finally, you might try offering to fix the problem yourself in a way that is likely to elicit a quick “No thanks, I’ll call my contractor right away!” This is a bit risky, since your bluff might be called, but even the most dense landlord will think twice when you offer to make an electrical repair with a chisel and masking tape.
See the sample letter below for more ideas on writing a persuasive repair request.
Sample Letter Asking for Minor Repairs
90 Willow Run, Apartment 3A
February 28, 20xx
Mr. Lee Sloan
Dear Mr. Sloan:
I would appreciate it if you could schedule an appointment with me to look at three problems in my apartment that have come up recently.
First, the kitchen sink faucet is dripping, and it’s getting worse. I’m concerned that a plate or dish towel might stop up the drain, leading to an overflow. At any rate, the water bill is yours, and I’m sure that you don’t want to pay for wasted water.
I’ve also been having trouble opening the sliding doors on the bedroom closet. The track appears to be coming away from the wall, and the doors wobble and look like they might fall into the room when I open and close the closet.
Finally, it would really be great if you would give some thought to repainting the interior hallways. They looked clean when I moved in a year ago, but now are pretty grimy. I’ve spoken with the tenants in four of the other six units and they, too, would appreciate a return to your standards of old.
Thanks very much for thinking about my requests. I hope to hear from you soon.
A written demand for repair or maintenance lets your landlord know that you are serious about the issue and are not content to just let it go. In addition, if your dispute ends up in small claims court, the demand letter can usually be introduced as evidence. Like this sample letter, your demand letter should:
be neatly typed and use businesslike language.
concisely and accurately state the important facts (this is important in case your letter ends up before a judge, who will need to be educated about the situation).
be polite and nonpersonal. Obviously, a personal attack on your landlord may trigger an equally emotional response. Because you are appealing to the landlord’s business interests, you want to encourage the landlord to evaluate the issue soberly, not out of anger.
state exactly what you want—a new paint job, for example.
Always keep a copy of the letter or email for your files, and hand-deliver the letter or send it “return receipt requested.”
If your demand letter does not produce results, consider involving the help of a local mediation center. Most community services handle lots of landlord and tenant problems, for free or at a very low cost. If they can coax the landlord to talk with you (and they’re very good at doing that), you have a decent chance of ending up with an agreement. See Chapter 16 for more information on mediation.
Reporting Code Violations
If appealing to your landlord’s business sensibilities doesn’t work, other strategies are available to pry minor repairs out of your landlord.
If the problem you want fixed constitutes a code violation, such as inadequate electrical outlets or low water pressure, you should find an ally in the building or housing agency in charge of enforcing the code. (Chapter 6 explains how to find and what to expect from these local agencies.) Whether you’ll get any action out of the agency will depend on the seriousness of the violation, the workload of the agency, and its ability to enforce its compliance orders. Because by definition your problem is minor, don’t expect lots of help if code enforcement officials are already overworked.
Suing in Small Claims Court
If you can reasonably argue that you aren’t getting what you paid for, you might decide to sue in small claims court. But before you do, write a second demand letter. Like the first letter (see the sample above), your second letter should describe the problems and alert the landlord to the negative consequences (to the landlord, not just to you) that may follow if repairs aren’t made. In addition, state that you intend to sue if you don’t get results. This may get the landlord’s attention and save you a trip to the courthouse.
Example: Chris Jensen wrote to her landlord on February 28, requesting repairs as shown in the sample letter above. She got no reply. Ten days later, she sent a second letter that summarized the first and concluded with this paragraph:
“If you are unable to attend to these repairs, I’ll need to call in a handyman to repair the faucet and doors, and I will seek reimbursement from you in small claims court if necessary. As for the deterioration of the paint, I believe I am entitled to a reduction in rent, which I will also seek in small claims court. Of course, I sincerely hope that this will not be necessary.”
If the second letter doesn’t produce results, it’s time to head for small claims court. You won’t need a lawyer (in fact, in California you can’t bring a lawyer to small claims court). Just go to the court and ask for the forms you need to sue someone. To find your court, search online for your county’s small claims court. (You may find some of the forms you need online.) In small claims court, you can’t get an order from the judge directing your landlord to paint, fix the dishwasher, or repair the intercom. You may, however, be compensated in dollars for living in a rental unit with repair problems. Here’s how it works.
When you file your small claims court suit, you’ll ask for an amount that reflects the difference between your rent and the value of the unit with repair problems. For example, if you’re living with a broken air conditioner, and know that apartments without air conditioners rent for $100 less per month, use that figure (multiplied by the number of months or parts thereof that the unit’s been broken) as your measure of damages. In court, your argument will be that you are not getting the benefit of what you’re paying rent for—for example, a functioning dishwasher, presentable paint, or a working air conditioner.
You’re more likely to succeed with this line of argument if you have a lease rather than a month-to-month agreement. If you have a long-term lease, you can argue that you are locked into a set rent for an extended period of time and should be compensated accordingly—that is, month after month, it appears that your landlord’s inaction will mean that you’ll receive less than what you are obligated to pay for. In contrast, a month-to-month tenant has no long-standing obligation; if you don’t like the fact that the shower door now won’t close, you can leave after giving relatively short notice, with no legal liability for future rent. A judge is likely to point this out and to tell you that, in effect, you agreed to the increasing shabbiness every month when you failed to send in a termination notice.
Don’t stop paying rent. Although fairness dictates that if your rental unit is full of repair problems you ought to pay less rent, it’s a mistake to pay your landlord less than the full monthly rent. Rent withholding, as discussed in Chapter 6, is legally appropriate only for major repairs. If you withhold even a portion of the rent because of a minor repair problem, you risk eviction for nonpayment of rent.
Your goal in small claims court is to convince the judge that these problems really make your rental unit worth less money. Use common sense—don’t go running to court for small things. A small claims court judge is not going to adjust your rent because a little grout is missing from your bathroom tile. But if your dishwasher is broken, three faucets leak noisily, and the bathroom door won’t close, your chances of winning go way up. You’ll need to show the judge that:
there are lots of minor defects, not just an isolated one, and
you’ve given the landlord plenty of time and notice to fix the problems.
Be sure to bring evidence. Winning in small claims court depends more on what you drag into court with you than on what you say. Examples of key evidence include:
copies of letters you’ve written asking for repairs
your written notes on your landlord’s response to your repair requests, including the number of times they were ignored or promised repairs didn’t materialize
witnesses—a family member, for example, who can describe the inoperable air conditioner
photographs—your pictures of the cracked, flaking plaster, for example
a copy of the local building or housing code, if the problem is covered there
your lease or rental agreement, if it lists any of the items that need repair
your lease or rental agreement, if it prohibits you from making repairs yourself
a copy of the Landlord-Tenant Checklist, which you should have completed when you moved in and which is signed by you and the landlord, showing that the problem did not exist at the start of your tenancy, and
ads, brochures, or For Rent signs describing features of your rental that are missing or malfunctioning.
Example: Judy signed a one-year lease for a studio apartment at $750 a month. When she moved in, the place was in good shape. But six months into her tenancy, the condition of the apartment began to deteriorate. A water leak from the roof stained and buckled several areas of the hardwood floors; the kitchen cabinets, which were apparently badly made, warped, and would not shut; the dishwasher became so noisy the neighbor banged on the wall when it was in use; the soap dish fell off the bathroom wall; and the white entryway rug started to fall apart. Judy asked her landlord to attend to these problems and followed up with several written demand letters. Two months after her original request, Judy wrote a final demand letter.
When the landlord still did nothing, Judy filed suit in small claims court, asking the judge to award her damages (money) representing the difference between her rent and the value of the deteriorated apartment. After considering Judy’s evidence, including copies of her demand letter, photographs of the defects, and the testimony of her neighbor, the judge agreed with Judy. The judge figured that the deteriorated apartment would have rented for $150 less a month, and ordered the landlord to pay Judy $450 to make up for the three months she had lived with the defects. Judy’s landlord was quick to make repairs after learning this expensive lesson in court.
Everybody’s Guide to Small Claims Court in California, by Ralph Warner (Nolo), has all the details you need to file a small claims court lawsuit. See www.nolo.com can for a sample chapter and table of contents for this book.
Making Minor Repairs Yourself
If you’ve concluded that a repair job isn’t your landlord’s responsibility, then it’s in your lap. Before you head out to the hardware store, pause for a moment. You need to know, first, whether it makes sense from a practical point of view for you to do the repair or maintenance; and, second, whether it’s legal.
Evaluating Your Skills and Time
Before you embark on a job, realistically assess its magnitude and your skills, tools, and time. Seemingly easy repairs often have hidden complexities. A simple job, like replacing the flexible hoses under the sink that connect the pipes to the faucet, may require special wrenches because of the cramped workspace. Do you have this equipment, or are you willing to purchase it? Time is also an issue: Are you willing to commit precious weekend or evening time to a plumbing project? Only an experienced, equipped handyperson (or one willing to consult a good do-it-yourself manual) should consider doing most home repairs.
You must also consider whether you are willing to take the risk of being held liable if one of your repair projects goes awry and results in property damage or, worse, someone’s injury. Your landlord’s insurance policy will not cover your misdeeds, and unless you have renters’ insurance, you stand to lose a lot of money.
Example: Colin decided to replace a window that was broken by his daughter’s basketball. He removed the shards of glass, fitted a new pane in place, and caulked the circumference. He did not, however, paint the caulk, and a year later it had cracked, allowing rainwater to seep onto the windowsill and down the wall. The landlord was furious when he realized that he would have to replace the sill and the drywall, simply because Colin had not done a workmanlike job. The cost of these repairs was taken out of Colin’s security deposit.
Getting the Landlord’s Permission
First, look at your lease or rental agreement. You may see a clause that forbids you from undertaking any “repairs, alterations, or improvements” without the landlord’s consent. (Alterations and improvements are discussed in Chapter 8.) It may seem unfair, but such a clause is legal. And a “no repairs without consent” clause keeps the landlord in control of the property, while making you pay for it.
If your lease has a “no repairs” clause, you’ll have to convince the landlord to give you permission. (See the sample letter below.) And even if you don’t have such a clause, check with the landlord first, anyway. You won’t need to do this if the repair or replacement is truly insignificant and nontechnical (or if it’s unlikely to be noticed by the landlord), like replacing the entryway rug or installing mini-blinds where old ones used to be.
But for jobs that have the potential to get complicated, expensive, or have dire consequences if things go wrong, you’ll want to have the official okay before proceeding. It may prevent your landlord from legally charging you if things go awry. Of course, a potential negative outcome may be the very reason your landlord will say “No way” and call for the bonded repairperson. But many landlords—if they trust you—will be happy to save themselves the time and trouble of lining up a worker, scheduling a time to be in your apartment, getting you to pay the bill, or deducting the expense from your security deposit and then getting you to bring the deposit up to its original level.
To protect yourself, put your repair proposal in writing, phrase it in a way that tells the landlord you’ll proceed unless you hear to the contrary within a reasonable amount of time, and keep a copy for your records. That way, you have a record that your work was undertaken with the landlord’s consent. A sample letter is shown below; notice how the tenant has communicated the problem, her experience with similar repairs, and a plan for repairing the item, all of which are designed to inspire the landlord’s confidence.
Sample Letter Requesting Permission to Do a Minor Repair
890 Market Street, #3
Central City, California 00000
January 4, 20xx
234 Fourth Street
Central City, California 00000
Dear Mr. Montgomery,
Last night, a fork accidentally fell into my garbage disposal, jamming the blades and causing the unit to stop. The disposal will have to be taken out and the blade assembly examined. The shear key, which prevents the engine from seizing, will need to be replaced.
I am familiar with the installation and maintenance of these appliances, having worked on one at my former residence. I have the tools to do the job. I’ll proceed with this repair unless I hear from you to the contrary. Please leave me a note or call me before January 10 if you do not wish me to do the job. If I don’t hear from you by then, I’ll go ahead.