Network of Care for Environmental Health

Tenant’s Rights

Excerpted from “California Tenants: Your Rights and Responsibilities,

Repairs and Habitability: Responsibility for Repairs

A rental unit must be fit to live in, or habitable. Tenants are required by law to take reasonable care of their rental units and their common areas. You are responsible for any damage that results from your neglect or abuse, or for damage caused by anyone you're responsible for, such as your guest or children.

However, under the implied warranty of habitability, the landlord is responsible for repairing conditions that seriously affect the rental unit's habitability. Whether the landlord or the tenant is responsible for making less serious repairs is usually determined by the rental agreement.

The implied warranty of habitability requires landlords to maintain their rentals in a condition fit for living. In addition, the rental unit must "substantially comply" with Building and Housing Code standards that materially affect tenants health and safety.

The basic minimum requirements:

Roofs and walls must not leak.
Doors and windows must not be broken.
Plumbing and gas must work.
Sewer and septic systems must be connected and operating.
Hot and cold water must be provided.
Heater must work and be safe.
Lights and wiring must work and be safe.
Floors, stairways, and railings must be maintained and safe.
When you first move in, the rental unit must be clean, with no trash, rodents, or other animals or pests.
There must be enough cans or bins with covers for trash.

Also, it is the landlord’s responsibility to install and maintain the inside wiring for one telephone jack. If, for example, the roof leaks, it is the landlord's responsibility to fix it, because the implied warranty of habitability requires that the roof not leak. But the implied warranty does not require the landlord to repair damages that you or your guest have caused, or to clean up trash that you or your guest have left around.

As for less serious repairs, the rental agreement may state that the landlord, or the tenant, is responsible for maintaining a particular item. If so, the agreement will usually be enforceable. For example, if the agreement states that the landlord must repair an item not covered by the implied warranty of habitability ( for example, the refrigerator), he or she must do so. On the other hand, if the agreement states that you must repair the refrigerator, you'll probably have to, because you've agreed to and because refrigerators are not covered by the implied warranty of habitability.

In certain situations, the landlord and tenant may agree in the rental agreement that the tenant is responsible for all repairs and maintenance, in exchange for a lower rent fee. Such an agreement must be made in good faith, and you should agree to it only if you are able to make all the necessary repairs. Ultimately, the landlord is responsible to the city, county, or state for maintaining the property as required by state or local law.

Having Repairs Made

If you believe that your rental unit needs repairs, and that the repairs are the landlord’s responsibility, you should notify your landlord. Most landlords want to help you keep the rental unit safe, clean, and attractive, since it is a business investment. It's best to notify the landlord of any damage or defects by both a telephone call and a letter. Date the letter and keep a copy for your records after delivering the original to the landlord, or the manager or agent. If the landlord doesn't make your requested repairs, and doesn't have reasonable justification for not doing so, you may have several remedies , depending on the seriousness of the repairs.

The Repair and Deduct Remedy

The repair and deduct remedy allows you to deduct money from your rent to pay for repairs of conditions that are covered by the implied warranty of habitability. These include serious habitability defects that are related to health and safety, such as a leak in the roof during the rainy season, no hot water, a gas leak, or a defective sewer system.

As a practical matter, the repair and deduct method allows you to make needed repairs of serious conditions without filing a lawsuit against the landlord. But because this remedy involves some legal technicalities, you may want to talk with an attorney or legal aid society before using it. Here's how the repair and deduct remedy works.

You must inform your landlord either orally or in writing of the needed repairs. It's best that this notice be in writing. It should describe the problem and the required repairs in sufficient detail. Your written notice should be dated and you should keep a copy.
You must give the landlord a reasonable amount of time to make the needed repairs. What is reasonable depends on the situation and the type of repair. The law usually considers 30 days to be reasonable, but if the problem makes the rental unfit for living, a shorter period may be considered reasonable. For example, if the heater is broken and it's very cold outside; two days may be considered reasonable.
If the landlord doesn't make the needed repairs within a reasonable amount of time, you may either make the required repairs, or hire someone to do them and deduct the cost from your rent.
The amount of rent withheld for the repairs can't be more than the amount of one month's rent.
You can't use this method more than twice in one year (any twelve month period).
You can't use this remedy if you, your guest, or your children caused the damages that need repairs.

Please note: the landlord can sue you to recover the money you deducted from your rent, or attempt to evict you for nonpayment of rent. If you deducted money for repairs not covered by the remedy, or didn't give the landlord reasonable time to make repairs, a court may order you to pay the full rent even though you paid for the repairs.

Your landlord may try to evict you or raise your rent to punish you for using the repair and deduct remedy. This is known as retaliatory eviction. The law prohibits this type of eviction, with some limitations. See below for a discussion of retaliatory evictions.

Rent Withholding

You have another option for getting repairs made-the rent withholding remedy. California law allows you to withhold ("stop paying") your rent if your landlord does not fix serious conditions that are covered by the implied warranty of habitability. You must first give the landlord notice of the conditions and a reasonable amount of time to repair them. You can use this remedy under the following conditions:

The needed repairs or defects must seriously affect your health and safety. The conditions must be serious enough to make the rental uninhabitable (has such serious problems that it will affect your health and safety).
You did not cause the needed repairs or defects.
You gave the landlord reasonable notice of the problems.
The landlord has not made the needed repairs. In order for you to withhold rent, the needed repairs or defects must be more serious than when you use the repair and deduct method. The conditions serious enough to justify rent withholding in the Green v. Superior Court case are listed below as examples.
The collapse and nonrepair of the bathroom ceiling.
The continued presence of rats, mice and cockroaches.
The lack of any heat in four of the apartment's rooms.
Plumbing blockages.
Exposed and faulty wiring.
An illegally installed and dangerous stove.

In the Green Case, all of these conditions were present, and there were also many violations of the local housing and building codes. In order to prove a violation of the implied warranty of habitability, you will need evidence of the needed repairs. For example, photographs, witnesses, and copies of letters informing the landlord of the problem would be valuable if you go to court.

Before you stop paying rent, check with a legal aid society, an attorney, or a tenant organization to help determine if this is the appropriate remedy for you to use. The notice to the landlord should be in writing and you should keep a copy for yourself. As with the repair and deduct remedy, the amount of time the landlord has to make the repair depends on the situation and the type of repair. If the landlord does not make the needed repair, you can stop paying your rent until he or she does.

Although not required by law, if you withhold rent, you should put your rent money in a special bank account (escrow account) and notify your landlord in writing of what you are doing and why. Putting the money in an escrow account proves to the court that you didn't withhold the rent just because you didn't have the money. If the repairs are made, you will owe your landlord a "reasonable rent" for the rental unit as it was when the repairs weren't made (for example, reasonable rent for an apartment without heat in the winter). Hopefully you and your landlord will be able to agree on the amount of withheld rent. If you can't agree on a reasonable amount, you may need to go to court or use an arbitration or mediation service.

Be warned that when you withhold rent, your landlord may give you an eviction notice ( a three- day notice to pay or leave). If you refuse to pay, your landlord will probably sue to evict you. Then you will have to prove to the court that your landlord has violated the implied warranty of habitability. If you win your case, the landlord will be ordered to make the repairs, and you will be ordered to pay a reasonable rent, which you must pay in a few days. If you lose you will have to pay the rent and probably be evicted.

Another risk with using this method is that if you do not have a lease, your landlord may try to ignore your request for repairs and remove or punish you by giving you s 30 day notice to move. This type of eviction is illegal and is known as a retaliatory eviction.

Retaliatory Evictions

Sometimes a landlord may try to evict a tenant because he or she exercised a right (for example, using the repair and deduct method) or complained of a problem with the rental unit. This is called a retaliatory eviction. The law protects you from this action.

In general the law will protect you from eviction, increases in rent, or other actions to punish you if you can prove that your landlord is retaliating against (punishing) you for lawfully exercising any tenant right, such as the following:

Using, or telling the landlord you will use, the repair and deduct method.
Complaining about the condition of the unit to the appropriate public agency (after giving the landlord notice), or to the landlord.
Filing a lawsuit or beginning arbitration about the condition of the unit.
Causing an appropriate public agency to inspect the unit or to issue a citation to the landlord.

If you have exercised any of the rights listed above, the protection from retaliatory eviction lasts for a period of six months. In addition, you can use the defense of retaliatory eviction in an eviction lawsuit only if you have paid all rent at the time you use the defense, and only if you have not used the defense within the last twelve months against the same landlord.

Important Disclaimer: Please Read

This summary of tenant rights is excerpted from the California Department of Consumer Affairs pamphlet entitled, "California Tenants: Your Rights and Responsibilities." These options are based on the California Civil Code. The Merced County Division of Environmental Health (DEH), merely provides this information to interested parties and does not provide legal advice. Tenants and landlords are advised to seek legal assistance. The DEH assumes no responsibility for the contents of either the Department of Consumer Affairs pamphlet nor the California Civil Code. Furthermore, no responsibility is assumed for actions of either the landlord or tenant as a result of this information. For additional information, please call your local legal services agency.