When can a tenant repair and deduct?
Under California law, a tenant is allowed to repair and deduct. Civil Code § 1942. 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
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
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.