Uninhabitable Conditions

When the landlord won't fix things, you have powerful rights, but you have to know what to do, when, and how to do it, or you fail.
  
Landlords neglect their buildings because it cuts into profits. He doesn't have to endure these conditions, but you do. He doesn't care, until he wants to justify keeping all of your security deposit, when he's "shocked" at how you've "trashed the place," and wants to blame his deferred maintenance and repairs on you. You are told that you have to put up with it or move, and that your contract says it was in excellent condition (when it wasn't), but there is a lot more to the story. Much more.

What is an "uninhabitable condition?"

    There is no strict legal definition, only guidelines. Civil Code 1941.1, Green v. Superior Court, and some other cases describe around it. It's not an ugly paint color or worn carpet, but it is peeling paint and a torn carpet. It has to affect living there, so that a technical violation like using the wrong type of screw would not be "uninhabitable." It does not have to make the place unlivable, but can be as simple as a missing window screen*, a defective electrical outlet, or low water pressure. It can be something unhealthy, like cockroaches and mold, or dangerous, like criminal activity [particularly gangs, drugs, and burglaries]. It can be outside the unit, like an unlit stairway or stagnant swimming pool. It can be something that doesn't work well enough, like an inefficient heater or air conditioner, low water pressure, or a slow drain. It can be a defective appliance that came with the unit, like a stove or refrigerator. It can be a bad smell, or noise, that is a nuisance, or construction debris in the back yard. It can be insufficient trash bins, or a broken front security gate. It can be things you didn't even realize, like missing locks on ground floor windows and deadbolt locks on exterior doors.

     If you've gone this far, to learn about your rights, you might as well make a complete list of everything defective in your apartment or house. There are things you didn't know about, or forgot about, or didn't think you had any right to complain about. Things your landlord said were your responsibility, or claimed were in good condition as it says in your lease, so you're afraid to say anything from fear of being blamed for the condition. You can't give up your right to a habitable dwelling except by expressly paying less to fix it up, specified in your agreement. These are all tricks to keep you from taking action. Too late, now.  Here's a checklist you can print out.  Chances are, you've overlooked most things. Here's a little interesting information about your favorite pet, cockroaches.

What can I do about these things?

    The Legislature and Courts have come down hard on slumlords, even if they oppose rent control. Slums hurt a community, and you are entitled to a decent place to live. These lawmakers know what the landlords try to do, so they gave you extra powers to handle the situation.  You can do one or all of these, as you wish. Make extra copies of the Checklist for all your neighbors. Best to have everyone do this at once, to overwhelm the landlord and prevent picking on any of you. 

A. Move out right away

    Normally, you have to give 30 days' notice to end a monthly tenancy. Where the place is uninhabitable in any respect, the law allows you to move without any notice, under Civil Code 1942. You don't have to tell the landlord about the conditions, or give him a chance to fix them. The landlord has a sudden vacancy, losing money, and has to fix everything; to the Legislature, it's poetic justice.  The defects don't have to be serious, and you may not even care about them. You can use them as an excuse to legally end your lease if you got a job transfer, can't afford it, are getting a divorce, or other reasons.

     Although you don't have to give notice, since some judges still favor slumlords, you should take these extra steps:
(1) Call the landlord and ask him to fix these things right away [Don't say you're planning to leave if he doesn't]
(2) Write a letter saying you're leaving under Civil Code 1942 due to the listed conditions [worst to least] you include
(3) Include in that letter your request for an immediate final walkthrough, regarding your deposit refund
(4) Take pictures of every defect, the rooms [looking neat] and the building exterior [film is cheap compared to its impact]
(5) Make notes of what was wrong with each item, because you may forget later.
Keep a copy of the letter, which you can send certified, return receipt requested, and the photos, with your rental agreement, in a safe place where you keep important papers. 

     Your picture of the heater that doesn't work can't show it not working, but at least places a picture of that nonworking heater in the judge's mind. Damp areas can be shown using newspaper, which darkens dramatically to show the wet area. Buckets on tables and bed of a roof leak emphasize the disruption of living arrangements. Hands pointing or magazines help show the size of holes or other defects not apparent in a photo. A ruler or other identifiable object slipping through a crack will demonstrate the location and severity of the crack. Cockroach droppings in the silverware drawer, plate cabinet, and food cupboards make the point, but dead cockroaches make a better picture. Wearing winter coats inside while pointing at the broken heater, open window, or drafty door helps to subliminally communicate the real effects of these conditions. Children in the photos near the dangerous or unpleasant conditions also help communicate the severity of the problem in real terms.  A picture says a thousand words, but make them eloquent words.

     Landlords hate this. They refuse to do the walk through, or even "recognize" your termination of tenancy. Your rent obligation ends the day you move out. Turn in at least one set of keys on that day and try to get a receipt for them. Leave them on the kitchen counter, if nothing else.Your letter and their conduct then sets them up for paying you triple the security deposit, later. You might also want to take more pictures of how you left the place: kitchen, bath, carpets, rooms. 

B. Call in the Inspectors

    There are Building Codes and Health Codes to ensure the quality of buildings people will use, and inspectors whose job it is to enforce those laws. Cities generally enforce the Building Code, and counties generally have their Health Department enforce the health codes. The County may do it all, especially for unincorporated areas, or the City may do all or a portion, based upon their agreement with the County. Whoever does it, these laws are enforced, under criminal penalties and more for the landlord who dares to ignore them. Here's the websites for the cities and the counties to give you a head start.

    You begin by calling in your complaint. Give them the worst 2 or 3 items, not the whole thing over the phone. The actual group that does the inspection may have a special name, which you wouldn't guess applies. Glendale calls it "Neighborhood Services."  Los Angeles has "Code Enforcement" of their "Housing Department" handle all but houses, which its "Building and Safety" inspectors handle. Cities may have the "Substandard Housing Division" of their Building Department do the inspections. When in doubt, ask the City Clerk.  The Health Department may also have a special name for the special division that inspects apartments for health risks. Los Angeles County calls one part "Environmental Services," and another part "Vector Management," depending on the type of problem. Your local County Supervisor's office should be able to direct you. With enough calls, they may decide to change the names to something more obvious to you! 

     When they come, you have your list of the habitability defects to hand them, and they can use it as their checklist to write their citation. Some inspectors are lazy or corrupt, and you may need to call their supervisor. You should get their card, and get the name and phone of their supervisor when they first arrive. You also want to arrange to get a "conformed copy" of their report mailed to you, or pick it up, so that you know what the landlord was cited for, and can show that report to a judge without having to subpoena the inspector himself. 

    The citation generally gives 30 days to make the repairs, but more serious situations require completion in as little as 72 hours. You should call the inspector when the time has expired to let him know what is still not done, so he can come back out, see the violation, and turn it over for criminal prosecution.

    The consequences of failing to take action are important:
1. Criminal prosecution puts the landlord on a deadline, and requires legal defense money as well as fines and repair costs. 
2. Los Angeles has a "REAP" program, where the City officially takes over as management company for the slumlord, cutting rents in half, and using the other half to pay expensive contractors to do what the landlord refused. 
3. The landlord can lose his ability to write off any deductions from his State taxes. 
4. As the tenant, you have the right to withhold rent if the landlord has failed to complete repairs within 35 days of being cited, under Civil Code 1942.4(a)(3), and he becomes liable to you for $100 to $1000 just for asking for the rent. 
5. Under Civil Code 1941.3, the whole place is presumed to have been uninhabitable 60 days after the citation is issued.
6. You have the official citation to show the judge in your case, which buttresses your claim that the premises were uninhabitable, and makes the judge wonder why this landlord would disobey even the inspector who cited him; it's a "bad." 
7. If you can get the other tenants to join in and "cooperate" with the building inspector by making their lists and inviting him in, you can have a financial fiasco going for the landlord, from which he may never recover.  
8. If the real reason that the landlord may not have done the repairs is that the unit or parts of the building are entirely, like a converted garage or bootlegged duplex. In that case, the structure has to be returned to whatever it was, nobody in the building owes rent [under Gruzen v. Henry], and the landlord has to pay relocation assistance to any rent controlled tenants to be removed, if that city requires it. 
9. Where the building requires major rehabilitation to satisfy the order, Los Angeles now requires the landlord to pay for lodging, meals, and other temporary expenses while the construction is under way. 
10. Such expenses without income could put a lot of landlords into default on their mortgage, and begin a collapse of their "real estate empire".  It's at least worth looking into.

C. Repair and Deduct

     Civil Code 1942 gives you the option of moving out [discussed above] or fixing the things yourself, and deducting the cost from your next rent.  The Legislature gave you this right to "repair and deduct"  as a plain and simple solution, but that doesn't make it plain and simple. There are some conditions and procedures to follow.

    First, it has to be a habitability item, such as found on the checklist. You can do a number of things at once, totaling up to one month's rent, but you can do it twice in a row. This means you can't tackle something costing 3 months' rent to fix, but you can do 50 things using up two months' rent. They can't be things that YOU caused, of course. It is important to note that the conditions do not have to be so bad as to justify your withholding of rent: "substantial reduction of habitability." 

    Secondly, you have to tell the landlord about these problems, so that he has the chance to fix them. Notice the difference here from just moving, where no advance notice is required. Here, you're about to spend the landlord's money against his will, maybe hiring contractors at much greater expense than with what he could have done the repairs. You probably have mentioned these things to the manager when paying rent, before, or on the phone, intentionally avoiding the formality which may be taken as confrontational.  Although it is not legally required, you are best to write a letter to the landlord listing the defects [worst to least], and identifying when you have previously told him about them. You suggest that he may be too busy, and that you'd be happy to take care of these for him, since they need to be done. You keep a copy of this letter, and you take pictures of each condition.

     Thirdly, you have to wait a "reasonable time" for the landlord to fix the things. Again, the law gives us no clue as to how long that would be, and the tenant seems to be at risk that a judge would conclude that you didn't wait long enough. The statute says 30 days is presumed to be "reasonable," but a shorter time would be warranted if (1) the problem severely affected living there, like no toilet, water, electricity, or gas, and (2) the problem were one which could be quickly fixed by available and qualified workers.  The time seems to depend on these circumstances, where considered by a court, such as in an eviction for nonpayment of rent.

     This is the difficult part of this "right," where you repair and deduct, spending your money, and thinking that you can deduct it from your rent. The landlord hates this, gives you a 3-day notice to pay rent or quit, and then starts an eviction lawsuit against you over that unpaid rent. If he loses, his real loss is the difference between what you spent and what he could have gotten away with, plus his legal fees. If you lose, you get evicted, lose the money you spent fixing the landlord's building, he gets the work done for free, and you still owe him the rent he demanded plus his legal expenses. The risk is plainly on the tenant's side, to show each of the elements.  This is why following these steps is so important, not to have it backfire on you.

     After waiting a reasonable time, you call in the repairmen. You can't charge for your own time, even if you're a contractor qualified to do the work. You have to hire outside people, and they had better be licensed and qualified to do the work. When in doubt, have a contractor, not a handyman, do the work. Get an estimate, pay out of pocket for the work and materials, and get your paid invoice as your receipt. If the work requires more than one month's rent, see if part can be done this mo nth, and the rest next month -it probably can. You get separate estimates and invoices for each part. You can get the most expensive company to do the work, and not be responsible for having spent more than you could have. The landlord takes the risk that you will do so, which is why he has the chance to jump in at first and fix his own building. Sometimes, the item is so old that it can't be repaired and has to be replaced; that's OK, but you should have a repairman write that on their invoice or estimate, to back you up.

    The final step is to make the deductions from your rent check. If you did these repairs in May, 2005, this would be for your June, 2005 rent check [or whatever the next one was]. You total up the receipts for the work and materials, and write down that figure. Then, you subtract that amount from your normal monthly rent, and THAT is the amount you put on your rent check. For example, if the repairs during May totaled $975 and your monthly rent for June would have been $1000, then you write a rent check for $25 for June, and put "Repair and Deduct -June rent" in the Memo portion of the check. It is best to make copies of the receipts, and the calculations, and make a cover letter for your deductions, explaining that you repaired and deducted for these items under Civil Code 1942, attached are the receipts and your reduced check for $25. You make and keep a copy of all of that, just in case. The letter, receipts, and "repair and deduct" memo notation are not legally required, but they present a "paper path" for the judge, should the landlord try to evict you for nonpayment of rent or "no reason" retaliation.  Judges leaning towards the landlord side want to believe that you just didn't have the money and were making this all up, or that you really didn't spend it, or wait the right amount of time. Doing it this way, you minimize your risk and accomplish what you want to do.

    You should monitor each of these items, noting where they are, what they are, how they affect habitability in real terms, when you first told the landlord about them, what if anything was his response, when you repaired the item. how much that cost, and what you have as evidence to show what went on, such as letters asking for repairs, photographs of the conditions, citations by the Inspectors, estimates, invoices, and after-photos of the repaired item.  The Repair List helps you track it. You would fill it out like this:

Item #__1___
Where it is What is it When did it start How does it impact living
 Master Bdrm. Elec. Socket March, 05 Can't use TV or room light
Told landlord Landlord response Repaired Cost Evidence
 3/7/05, 5/10/05 None 6/20/05 $55.25 Pic, receipt, ltr

    This is not only your checklist to be sure you informed him about everything and waited enough time, but you have "Exhibit A" to show the judge, followed by all the pictures, letters, receipts and other evidence to explain that you did it all "by the book."  The landlord is not going to be expecting such organization, and neither will the judge, should it come to court. Your preparation now gives you the peace of mind later, should push come to shove.

D. Withholding Rent

    At some point, conditions are bad enough that the law permits and encourages you to withhold rent. This happens when the place is an illegal structure and when the unit has a "substantial reduction of habitability."

The Illegal Unit

    If the place is illegal, such as a converted garage or bootlegged duplex, then under Gruzen v. Henry, the landlord is not entitled to collect or request ANY rent. It is illegal if the structure that is there does not match the "Certificate of Occupancy" or equivalent issued by the City. Chances are, there are plenty of defects in an illegal unit: no contractor would touch it.

    For example, a prior landlord might have gotten a permit to build a "recreation room" with a bathroom, on the back of his garage, away from his house. After the room was built, however, he had a handyman come in and add a kitchen in the garage area, put wall board and electrical outlets, etc, in the garage, lay down a carpet, and voila! a "back house" is born.  This makes it a two-on-a-lot, where it's supposed to be a single family house, with a detached garage and recreation room.  That landlord sells it as income property to your landlord, who pays a premium to have two units paying rent instead of a house.  Because a handyman mickey-moused everything, cut corners, was unqualified to do the work, and never got permits, you now live in this back house with odd shaped rooms and things that don't work well.  Guess why? Similar things happen with two story houses, split into an upstairs apartment and a downstairs apartment, both of which are illegal. 

     If you check with the City Building Department -Records Section, you can get a copy of the Certificate of Occupancy, certified, for your records. If this is supposed to be a single family dwelling and it's a two on the lot or duplex, nobody owes rent any more.  Why? Because the law is not going to reward a landlord who has an illegal structure, and punishes him by declaring the contract leasing that structure "void."  That's what the Gruzen v. Henry case was all about. Since the Certificate of Occupancy applies to the entire structure, the house and illegal garage are both included, and neither should owe rent. Not all judges may agree, and the law is not clear here; some judges may only find that the illegal unit's rent is not due, if one one is. 

    The same reasoning can also apply where the landlord has added rooms without permits, so that the completed structure does not match the Certificate of Occupancy. The City's citation orders the landlord to restore the building to its original condition, and identifies the structure as illegal. That solves your problem.

    Although you may have uninhabitable conditions that justify your withholding the rent, the illegality of the building and what has to happen lead to no rent at all being due, and no repairs being made.  What happens is that the landlord tries to evict you for nonpayment of rent, knowing that the place is illegal, and hoping to get an order that you simply be removed from the illegal structure, without owing rent. This is what the Gruzen case concluded. However, in rent controlled areas, such as Los Angeles, where the relocation assistance has to be paid, the eviction should not be permitted if the relocation money and proper notices to remove a tenant from a dwelling to be removed from the market have not be satisfied. That money is due even if the unit is illegal, under Salazar v. Maradeaga.  You may be able to sue to recover the back amounts paid, too.

Substantial Reduction in Habitability

     The second legal basis to withhold rent is from what is called the "implied warranty of habitability." Arising from the Green v. Superior Court case, it says that before a landlord may ask for rent, he must first provide a habitable dwelling. This doesn't apply to commercial tenancies, unless they are mixed with residential, like an artist's loft. The landlord "warrants" that the place is habitable. If there are "substantial" defects, you have the right to withhold rent UNTIL the conditions are corrected. This is to force the reluctant landlord to take care of these defects in order to get his rent money. If only it worked as plainly as it seems.  Here is another "right" that is surrounded by pitfalls, any one of which gets you evicted.

     First, the condition or conditions must constitute a "substantial reduction of habitability," which is not defined until a judge determining your eviction makes the decision in hindsight, based upon what the landlord and his agents then claim. How bad is "substantial?" Does it mean not trivial? or "more than a little?" or "quite a bit?" or enough to make the judge scowl?  If you have a borderline case, but withhold your rent in good faith, the judge might conclude that it wasn't as bad as you thought, and therefore, you didn't have the right to withhold rent, and should be evicted for not paying your rent. How dare you not guess what the future judge would conclude.

   This is not to say that everything is such a risk. Lack of heat during winter, nonfunctioning water or electricity, missing windows, and flooding all easily qualify for withholding rent. The Green v. Superior Court case created the right to withhold rent where the apartment in question had a "list of serious defects" including:

 (1) the collapse and nonrepair of the bathroom ceiling, (2) the continued presence of rats, mice, and cockroaches on the premises, (3) the lack of any heat in four of the apartment's rooms, (4) plumbing blockages, (5) exposed and faulty wiring, and (6) an illegally installed and dangerous stove.

You might say that sounds like your place. In any event, it is a safe path to compare your conditions to those in the Green v. Superior Court case. 

     The Legislature later stepped in with Code of Civil Procedure 1174.2, which says that if the judge concludes that there was a "substantial breach" of the items listed in Civil Code 1941.1 [the Habitability Checklist provided in this section], then the tenant wins the nonpayment eviction, the judge determines the fair rent which was due under those conditions, and gives the tenant 5 more days to pay that amount, as well as ordering that the repairs be made and that the rent stay low until they are. That sounds fine and well, but how much is "substantial," is again undefined. If the tenant says that window didn't open, 3 electric sockets didn't work, and the water pressure was very low, is that "substantial" because it is not trivial, or because it is more than a 5% impact on the rental value?  Here still, the risk of withholding rent for uninhabitable conditions is high in borderline cases, where the good faith guess of a tenant gets him evicted and the landlord rewarded for slumlording. 

    The other risks concerning rent withholding are that the landlord always claims he knew nothing about it. That the tenants raved about what a wonderful apartment it was, and that he suspect the tenants just ran out of money and contrived this whole thing.  Judges might believe that, without a lot of proof by the tenant, such as pictures, a letter asking for repairs, an inspector's citation, and so forth. The landlord can't fix what he doesn't know about, and claiming he didn't know is easy without written proof. Judges tend to believe that letters which are written and addressed were actually received and read, but that lack of a letter, even to the landlord who lives next door, shows that there was no communication. Keep that in mind. 

     Another risk of withholding rent is that the landlord claims that you caused the condition. For example, you have cockroaches because you live like pigs [although cockroaches live wherever they want, eat anything, and multiply like crazy]. The landlord claims you broke the door, shorted out the electric socket, tore off the handle, or whatever. No matter that it didn't happen, that the landlord didn't see it, or that it has been that way for the last two tenancies, the judge can still believe the landlord because he wants to.  You can't withhold rent for a condition that you caused. All the landlord has to do at trial is make up a story to support that, like you apologized for breaking the thing last month, and promised you'd get it fixed, but didn't, and now apparently are having trouble paying the rent, and made up this excuse. Blah, blah, blah, but it works.

     Another problem with withholding rent is the timing. You can't withhold rent this month because of what happened last month. You can't withhold half a month's rent because you think that amount is fair. If you just paid this month's rent, and the defect occurs today, and is not corrected until the 30th of this month, you have no right to withhold next month's rent, just because you got ripped off this month. You may have had 29 days without heat in mid winter, but can't withhold the next month's rent to get even. The heater is fixed prior to the next rent date, and that's it. You can't withhold rent for what has already been fixed.  That's not to say you can't be compensated -you just can't withhold rent as a means of doing it.

     Consequently, if you can use another method of getting the items fixed and still pay your rent, do it. If you don't have the money to pay this month's rent, such as because you just got a huge increase, or you were laid off, withholding rent is for you. It is often the case that landlords renting shabby places rent to people who have unstable incomes. One matches the other, and the tenant doesn't complain about the poor conditions because it is hard to find another place they can afford, and the landlord lets them pay in installments or late. Then one day, the new landlord, or manager, or management company, gets tough, raises the rent, says no more late pays, starts bossing everyone around, handing out eviction notices, and starts the war. Tenants who tolerated the poor conditions no longer have an incentive to stay quiet, especially when they're already being evicted. They've always had grounds to withhold rent but didn't want to rock the boat. But now it's already rocking, and it's time to rock. Landlords who own glass houses shouldn't throw rocks, because they come back. 

    Tenants there withhold rent, and win their eviction cases, call in the building inspectors who cite the landlord for hundreds of violations, and the downhill spiral begins. All it takes is one tough guy manager, a little person with power who loves it, to open the floodgates on the landlord, and get himself fired as a scapegoat.  It happens all the time. 

E. Suing the Landlord

    Tenants can sue their landlord, but rarely do, because they don't want to create conflict. However, with a lease, rent control, or eviction protections, tenants can sue the landlord with little risk of retaliation. Where many tenants in the building do it at the same time, the onslaught of cases against the landlord can be quite effective. 20 cases suing for $5,000 each totals $100,000, not quite pocket cash for the landlord. Small claims allows lawsuits up to $5,000 each, twice per year, and more cases at $2500 each after that.  You can move out and still sue the landlord for what you endured while there. 

     The basis of the lawsuit is breach of contract [the implied warranty of habitability] and nuisance, where these defects also create something "offensive to the senses" or blocks your movement.  There may be other reasons to sue. On a written contract, you can sue for the uninhabitable conditions for the past FOUR YEARS, and on an oral agreement, for the past two years. Nuisance can be brought for the past 4 years, as well. If you've paid $1000 a month rent for 4 years, that's $48,000, so if your habitability was only reduced by 10%, that's $4800, within the small claims maximum.  

     Why small claims?  The judgment there is as good as any judgment, and can be enforced in the same ways. It is over in about a month, as opposed to a couple of years in a regular case. If you can present your case well, your landlord is at a disadvantage, because no lawyers are allowed at trial. The orderly presentation of your case can win you the full amount. Since you don't have to spend money on lawyers in small claims, your net collection in a regular lawsuit could have been less. The process is simple, and the filing fees are about $20. You can have the other tenants testify at your trial, and you can testify at theirs.  To collect, you can take the landlord's bank account, levy on rents paid by the other tenants, take his car and sell it, put his apartment building on the auction block, and more. Landlords are easy to collect from.  

Conclusion

    It's time to take action. You have so much to do, and so much to gain. Get out of victim mode and get the other tenants to  join you. It's a lot of fun to finally take a stand and make the landlord pay. The lawmakers want you to do it. If you don't exercise your rights, you don't have any. 

Need more help? Ready to take the next step? Contact Ken Carlson.

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*HSC 17920.3(a)(7) generally requires that "required" ventilation devices be present and working. The local County Health and County or City Building Departments' ordinances and regulations specifically require screens on windows that open.

 

The author is California attorney Kenneth H. Carlson, State Bar #93602, licensed to practice law since 1980, specializing in helping tenants since then.
Contact information:  PO Box 2417, Idyllwild, CA 92549 (951)659-1234  FAX (888)764-1919 

 

 

updated  8/43/14