If a tenant believes that his or her rental unit needs repairs, and that the landlord is responsible for the repairs under the implied warranty of habitability, the tenant should notify the landlord. Since rental units typically are business investments for landlords, most landlords want to keep them safe, clean, attractive, and in good repair.
It’s best for the tenant to notify the landlord of damage or defects by both a telephone call and a letter. The tenant should specifically describe the damage or defects and the required repairs in both the phone call and the letter. The tenant should date the letter and keep a copy to show that notice was given and what it said.
The tenant should send the notice to the landlord, manager, or agent by certified mail with return receipt requested. Sending the notice by certified mail is not required by law, but is a very good idea. Or, the tenant (or a friend) may personally deliver the notice to the landlord, manager, or agent and ask for a receipt to show that the notice was received. The tenant should keep a copy of the notice and the receipt, or some other evidence that the notice was delivered.
If the landlord doesn’t make the requested repairs, and doesn’t have a good reason for not doing so, the tenant may have one of several remedies, depending on the seriousness of the repairs. These remedies are discussed in the rest of this section. Each of these remedies has its own risks and requirements, so the tenant should use them carefully.
The "repair and deduct" remedy
The "repair and deduct" remedy allows a tenant to deduct money from the rent, up to the amount of one month’s rent, to pay for repair of defects in the rental unit.101 This remedy covers substandard conditions that affect the tenant’s health and safety, and that substantially breach the implied warranty of habitability.102 (See discussion of the implied warranty of habitability.) Examples might include a leak in the roof during the rainy season, no hot running water, or a gas leak.
As a practical matter, the repair and deduct remedy allows a tenant to make needed repairs of serious conditions without filing a lawsuit against the landlord. Because this remedy involves legal technicalities, it’s a good idea for the tenant to talk to a lawyer, legal aid organization, or tenants’ association before proceeding.
The basic requirements and steps for using the repair and deduct remedy are as follows:
1. The defects must be serious and directly related to the tenant’s
health and safety.103
Risks: The defects may not be serious enough to justify using the repair and deduct remedy. In that event, the landlord can sue the tenant to recover the money deducted from the rent, or can file an eviction action based on the nonpayment of rent. If the tenant deducted money for repairs not covered by the remedy, or didn’t give the landlord proper advance notice or a reasonable time to make repairs, the court can order the tenant to pay the full rent even though the tenant paid for the repairs, or can order that the eviction proceed.
The landlord may try to evict the tenant or raise the rent because the tenant used the repair and deduct remedy. This kind of action is known as a "retaliatory eviction" (see Retaliatory actions and evictions). The law prohibits this type of eviction, with some limitations.104
The "abandonment" remedy
Instead of using the repair and deduct remedy, a tenant can abandon (move out of) a defective rental unit. This remedy is called the "abandonment" remedy. A tenant might use the abandonment remedy where the defects would cost more than one month’s rent to repair,105 but this is not a requirement of the remedy. The abandonment remedy has most of the same requirements and basic steps as the repair and deduct remedy.106
In order to use the abandonment remedy, the rental unit must have substandard conditions that affect the tenant’s health and safety, and that substantially breach the implied warranty of habitability.107 (See discussion of the implied warranty of habitability.) If the tenant uses this remedy properly, the tenant is not responsible for paying further rent once he or she has abandoned the rental unit.108
The basic requirements and steps for lawfully abandoning a rental unit are:
1. The defects must be serious and directly related to the tenant’s
health and safety.109
Risks: The defects may not affect the tenant’s health and safety seriously enough to justify using the remedy. The landlord may sue the tenant to collect additional rent or damages.
The "rent withholding" remedy
A tenant may have another option for getting repairs made - the "rent withholding" remedy.
By law, a tenant is allowed to withhold (stop paying) some or all of the rent if the landlord does not fix serious defects that violate the implied warranty of habitability.110 (See discussion of the implied warranty of habitability.) In order for the tenant to withhold rent, the defects or repairs that are needed must be more serious than would justify use of the repair and deduct and abandonment remedies.111 The defects must be serious ones that threaten the tenant’s health or safety.112
The defects that were serious enough to justify withholding rent in Green v. Superior Court113 are listed below as examples:
Collapse and nonrepair of the bathroom ceiling.
In order to prove a violation of the implied warranty of habitability, the tenant will need evidence of the defects that require repair. In the event of a court action, it is helpful to have photographs or videos, witnesses, and copies of letters informing the landlord of the problem.
Before the tenant withholds rent, it is a good idea to check with a legal aid organization, lawyer, housing clinic, or tenant program to help determine if rent withholding is the appropriate remedy.
The basic requirements and steps for using the rent withholding remedy are:
1. The defects or the repairs that are needed must threaten the tenant’s
health or safety.114
Percentage reduction in rent: The percentage of the rental unit that is uninhabitable is determined, and the rent is reduced by that amount. For example, if one of a rental unit’s four rooms is uninhabitable, the tenant could withhold 25 percent of the rent. The tenant would have to pay the remaining 75 percent of the rent. Most courts use this method.
Reasonable value of rental unit: The value of the rental unit in its
defective state is determined, and the tenant withholds that amount. The
tenant would have to pay the difference between the rental unit’s
fair market value (usually the rent stated in the rental agreement or
lease) and the rental unit’s value in its defective state.1
First, as explained under "Risks" below, rent withholding cases often wind up in court. The judge usually will require the tenant to pay the landlord some reduced rent based on the value of the rental unit with all of its defects. Rarely does a judge excuse payment of all rent. Depositing the withheld rent money in an escrow account assures that the tenant will have the money to pay any "reasonable rent" that the court orders.
Second, putting the withheld rent money in an escrow account proves to the court that the tenant didn’t withhold rent just to avoid paying rent. If there is a court hearing, the tenant should bring rental receipts or other evidence to show that he or she has been reliable in paying rent in the past.
Third, most legal aid organizations and lawyers will not represent a tenant who has not deposited the withheld rent money in an escrow account.
Sometimes, the tenant and the landlord will be able to agree on the amount of rent that is reasonable for the time when the rental unit needed repairs. If the tenant and the landlord can’t agree on a reasonable amount, the dispute will have to be decided in court, or resolved in an arbitration or mediation proceeding (see Arbitration and Mediation).
Risks: The defects may not be serious enough to threaten the tenant’s health or safety. If the tenant withholds rent, the landlord may give the tenant an eviction notice (a three-day notice to pay the rent or leave). If the tenant refuses to pay, the landlord will probably go to court to evict the tenant. In the court action, the tenant will have to prove that the landlord violated the implied warranty of habitability.
If the tenant wins the case, the landlord will be ordered to make the repairs, and the tenant will be ordered to pay a reasonable rent. The rent ordinarily must be paid within a few days after the judge makes his or her decision. If the tenant wins, but doesn’t pay the amount of rent ordered when it is due, the judge will enter a judgment for the landlord, and the tenant probably will be evicted. If the tenant loses, he or she will have to pay the rent, probably will be evicted, and may be ordered to pay the landlord’s attorney’s fees.
There is another risk of using rent withholding: if the tenant doesn’t have a lease, the landlord may ignore the tenant’s notice of defective conditions and seek to remove the tenant by giving him or her a 30-day notice to move. This may amount to a "retaliatory eviction" (see Retaliatory actions and evictions).116 The law prohibits retaliatory evictions, with some limitations.117