When can a tenant repair and deduct?
Under California law, a tenant is allowed to repair and deduct. Civil Code § 1942 [1]. However, this remedy should only be used where the tenant meets all the requirements of the repair and deduct statute. If a tenant repairs and deducts without following the strict guidelines of California’s repair and deduct statute, the tenant will likely receive a three-day notice to pay rent or quit followed by an eviction lawsuit. A tenant who withholds rent without meeting the requirements of Civil Code section 1942 is in violation of California law and may face an eviction lawsuit.
Under Civil Code section 1942, a tenant may only repair and deduct where the tenant meets all the following requirements:
- The tenant has provided reasonable notice to the landlord or landlord’s agent of an intent to repair and deduct – a thirty-day notice is presumed to be reasonable;
- The amount of the repair is less than one month’s rent;
- The tenant has not done more than two deductions in twelve months;
- The repair issue renders the premises untenantable; and
- The tenant was not responsible for the condition. Civil Code §§ 1929 & 1941.2 [2]
A unit is statutorily defined as untenantable if it lacks any of the following: heat, electricity, hot and cold running water, effective weatherproofing, unbroken windows and doors, properly functioning sewer system and bathroom facilities, free from rats, mice, cockroaches, and debris, safe floors, stairways and railings, and an adequate number of garbage cans. Civil Code § 1941.1 [3]
What are the risks of repairing and deducting or withholding rent?
If a tenant withholds rent without following all the requirements of the repair and deduct statute, the tenant will receive a three-day notice to cure or quit. If the tenant does not pay the rent within the three days, the tenant will receive an eviction lawsuit. Even if the tenant meets all the requirements of the repair and deduct statute, a landlord can still serve a three-day notice and file an eviction lawsuit. The landlord will argue in the eviction proceedings that the tenant caused the repair issue or that the landlord was responding promptly. After having litigated more than a 1000 tenant cases, our firm almost never recommends that a tenant withhold rent.
What are the alternatives to a repair and deduct?
Given the risks of the repair and deduct remedy and withholding rent, tenants should consider the following alternatives. For a more in-depth discussion of these remedies, see our article entitled Forcing Your Landlord to Repair.
- Have the landlord cited by the local building inspector.
- Move out and file a lawsuit for failure to repair and constructive and wrongful eviction.
- Remain in the unit and file a lawsuit for failure to repair.
Our firm has recovered more than $50 million against landlords who fail to maintain their units and otherwise mistreat tenants. If you believe you have a case against your landlord for failing to repair, please contact our tenant lawyers today at 415-504-2165.
References
Frequently Asked Questions
What is “repair and deduct”?
“Repair and deduct” is a legal remedy available to tenants in California under Cal. Civ. Code § 1942 that allows a tenant to make necessary repairs themselves and deduct the cost from future rent when the landlord fails to repair conditions that materially affect health and safety after reasonable notice.
When can a tenant use the repair and deduct remedy?
A tenant may use the repair and deduct remedy when the landlord has failed to repair conditions that materially affect the health and safety of the tenant after the tenant has given the landlord reasonable written notice of the needed repair and a reasonable opportunity to make the repair.
What qualifies as a condition that materially affects health and safety?
Conditions that materially affect health and safety include, but are not limited to, lack of heat, lack of hot water, broken locks, gas leaks, sewage backups, severe roof leaks, exposed wiring, infestations, and other conditions that make the unit unsafe or uninhabitable.
How much can a tenant spend on repair and deduct?
Under Cal. Civ. Code § 1942, the total amount a tenant can deduct in any 12‑month period is limited to one month’s rent.
How many times can repair and deduct be used?
A tenant may use the repair and deduct remedy no more than twice in any 12‑month period.
Do tenants need to provide written notice to the landlord?
Yes. A tenant must provide the landlord with written notice identifying the problem and allow a reasonable time for the landlord to make the repair before using the repair and deduct remedy.
What constitutes a reasonable time for the landlord to make repairs?
What is “reasonable” depends on the nature and severity of the problem, but landlords must be given a fair opportunity to address conditions that materially affect health and safety after written notice.
Can a tenant deduct the full cost of the repair?
A tenant may deduct the cost of the repair from future rent so long as the amount does not exceed the statutory limit under Cal. Civ. Code § 1942 and the repair was necessary to address a condition materially affecting health and safety.
Should tenants keep records of repair and deduct work?
Yes. Tenants should keep detailed records of repair costs, receipts, photos of the condition, copies of written notice to the landlord, and any other documentation that supports the use of the repair and deduct remedy.
Can tenants face retaliation for using repair and deduct?
No. Landlords are prohibited from retaliating against tenants for exercising their legal rights, including the right to use the repair and deduct remedy under Cal. Civ. Code § 1942.
