Here’s a situation I encounter frequently. Tenants renting a house or apartment say they’ve called the landlord repeatedly to repair something or clean up pests of some kind, and nothing gets done. What can they do?
Under California law, every residential tenancy, whether under a written lease or otherwise, is subject to a landlord’s warranty of habitability. This means that when you rent a house or apartment, the landlord has to maintain his/her guarantee that you can live on the premises free from safety and health concerns.
Subjective vs. Objective
Seems pretty clear-cut, doesn’t it? Not entirely, as what’s deemed a health or safety concern may be left open to interpretation using a subjective perspective.
Say, for example, you’re worried that the roof will cave in because of termites, which you believe are present due to a couple of small piles of wood shavings in the corner of the master bedroom. If you don’t know precisely what the extent of the damage is, your fear is considered a subjective concern. Until an investigation determines termites have attacked a weight-bearing support beam, there’s not much you can do, except report this concern to your landlord.
A burst pipe, on the other hand, is an unquestionable (and objective) safety and health concern. In this situation, you should immediately contact your landlord (in fact, that’s your obligation as tenant). It’s the first necessary step toward giving them adequate notice of the problem.
My advice is not to rely solely upon a telephone call. A text or email is helpful, but with any of these forms of communications, it can be hard to prove you provided adequate notice of a problem. A landlord can claim the phone call never happened or electronic communications failed.
Therefore, in addition to the means listed above, I recommend you send a letter to the landlord by certified mail (with return receipt requested), so there’s legally acceptable proof of notice to the landlord.
What if the landlord ignores your request?
In the event the landlord ignores your request to fix a broken toilet or replace a broken window, here are possible options.
Take matters into your own hands. You can repair the damage yourself and deduct the cost from your rent. This must be a “reasonable” repair, so be sure to use the most reasonable repair option (don’t go for expensive parts or labor without the landlord’s written pre-approval). Remember, it must be a serious defect in order to deduct payment from your rent. A bent screen on your window poses no genuine health concern, so if you hire someone to fix it, this would be an unreasonable deduction from your rent without the landlord’s approval.
In order to fix and deduct, neither you, a family member, friend, nor anyone else who is present with your consent can be the one(s) causing the damage. Also, you have to give the landlord notice and a reasonable amount of time to make the repairs (unless it’s an immediate threat, like a roof collapsing).
If you do pay for repairs, be sure to keep all receipts. That way, if you decide to deduct from your rent, you can provide copies of the receipts to the landlord, along with an explanation about why you’re not paying a full amount of rent for the month.
You can withhold rent. This is an option in cases where you determine that the rent you’re being charged isn’t reasonable for the place you inhabit—that is, conditions have made the house or apartment at least partially uninhabitable.
For example, a cracked window in the dead of winter makes a part of your dwelling unlivable, due to extreme cold. You calculate you can use only 75% of the house, so you’ll pay only 75% of the rent. Reminder: You must first give the landlord an opportunity to fix the damage.
According to the law, you can only withhold rent for one month per job. And you can’t use this remedy more than twice in a 12-month period.
Abandon the premises. If a condition is serious enough that you feel you and your family are at risk, you have the legal right to walk away. (Again, only after giving notice to the landlord of the need for repairs and a reasonable opportunity to fix the problem.) If your requests for repairs have gone unanswered, you are legally entitled to cancel the lease.
With each of the options listed, be sure to document everything! Take photographs. Make copies of notices. Keep receipts of out-of-pocket inspections to support your claim.
There are risks involved in either deducting or withholding rent. If the reason for your actions isn’t considered reasonable in the eyes of a judge, a landlord can evict you and hold you responsible for rents and other damages.
As a tenant, you have specific legal rights concerning the safety of your house or apartment. Before taking any action, you should always consult an attorney with experience and knowledge in this area.
Are you in a situation affecting your rights as a tenant? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.