Habitability

Q. Is a landlord obligated to make repairs in a rental unit?
A. The law requires every residential landlord to maintain the rental unit and common areas in a “habitable” condition, unless the tenants caused the problem. A tenant cannot give up this protection even if it says so in a lease or rental agreement. Habitable means that the rental unit does not have problems that can affect the health and safety of the tenants or reduce the normal use of the premises. The problem must also be substantial. Staff at Fair Housing can help you, but they do not decide what a breach of habitability by the landlord is. Habitability problems include, but are not limited to, the conditions listed in California Civil Code Section 1941.1 and Health and Safety Code Section 17920.3. Other building codes, reasonable security measures, and one wired phone jack. You can look up the code sections listed on www.leginfo.ca.gov/calaw.html or ask your local Code Enforcement Department in the city where you live to inspect. You should also take pictures and document the conditions.

A landlord can only maintain the unit in habitable conditions if the tenant informs him/her about any problems. Most tenants start by talking with the landlord about the problems while they are paying the rent. But a letter listing the problems and reciting the enclosed month’s rent for e.g. December, is harder for a landlord to deny receiving if s/he got the rent. Tenants should also cooperate reasonably with repairs during business hours or during any emergency. Tenants may waive their rights to a 24-hour notice of entry for repairs in order to get the listed problems fixed faster. A breach of habitability be the landlord begins when s/he first gets notice of the problem, even if the landlord has not had time to repair.

Q. What is a livable (tenantable) condition?
A. A rental unity is NOT livable if it substantially lacks any of the following:
– Roof, walls and windows that do not leak
– Working plumbing or gas facilities
– Water supply of hot and cold running water connected to a sewage disposal system
– Heating system that works
– Electrical lighting and wiring in working order
– Building and grounds kept clean, sanitary, and free from garbage, rodents, and vermin
– Adequate number of garbage cans or dumpsters in good repair
– Floors, stairways and railing in good repair

Other standards may be established by state and/or local city codes. Just because one of these conditions exists does not mean a unit is not livable.  The court will look to see if it substantially lacks these conditions. This is not a decision that can be made by San Joaquin Fair Housing.

Failure To Deliver A Habitable Rental Unit

Q. What can a tenant do if their unit is uninhabitable?
A. There are five general options for the tenant, but all require giving notice of the problems to the landlord first. It is better to do this in writing.

Move Out. Wait a reasonable time after giving notice for the landlord to do the repairs and move out. 30 days is presumed to be reasonable but it is not cast in stone. Warn the landlord in your letter requesting repairs that if s/he doesn’t do the repairs that you will be moving out because of the conditions.

Help Calling Attention to the Problem. A tenant is under no duty to move out of a rental unit in order to claim it is uninhabitable. Just because a tenant remained in a rental unit does not mean that the unit was therefore habitable. Many tenants do not have the resources to move quickly, and there is a severe shortage of decent affordable housing. Other remedies can help spur the landlord to repair. The tenant may call the local city code enforcement inspectors and health department for an inspection of the rental unit. Tenants can ask their neighbors in other units if they want to be inspected at the same time.

Repair and Deduct. Wait a reasonable time after giving notice for the landlord to do the repairs and move out. 30 days is presumed to be reasonable but it is not cast in stone. Pay to have plumbers, electricians or others to make the needed repairs that are listed in Civil Code Section 1941.1. Then deduct the repair cost from the rent by submitting a copy of the bill together with the remaining rent due. The costs deducted cannot be more than one month’s rent and no more than two times per year.

Withhold Rents. A tenant’s obligation to pay rent goes hand in hand with the landlord’s duty to maintain the rental unit in a habitable condition. But it is not like a light switch; it is not all-or-nothing. If the landlord is in breach of habitability, the tenant remains obligated to pay only the amount of rent that would be reasonable taking into account the defective conditions shown in court. Fair Housing staff can assist, but do not make this decision. The tenant should save all unpaid rents so that they can pay the rent that may be found owing by the court. The tenant and landlord may also negotiate the rent due while repairs are completed. Taking this option involves a risk of a tenant being evicted if the problem isn’t seen as serious enough or was tenant caused.

Sue for Damages. Tenants can sue their landlords for damages including a retroactive reduction in rent and the annoyance and inconvenience of living in bad conditions. Each tenant can sue for up to $7500 in small claims court. All of the cases from the same building can be set for hearing at the same time.

Q. Can my landlord raise my rent or evict me for requesting repairs or making a compliant to an appropriate agency?

A. No, retaliation for exercising your tenant rights and asking for repairs is illegal. Information on retaliation

Caution to Tenants: You should contact San Joaquin Fair Housing, legal aide,  or a private attorney BEFORE using any of the above methods to insure you protect yourself and your tenancy.

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