FORCING YOUR LANDLORD TO MAKE REPAIRS

Are California landlords responsible for making repairs to their rental units?

Yes. Landlords are required to make all necessary repairs to ensure a rental unit is habitable and to comply with state and local building and health codes. The Court has held that all residential rental agreements contain an “implied warranty of habitability”, which means regardless of what your lease says, your landlord has a duty to make sure the unit is livable, safe, and not in need of repair. Green v. Superior Court, 10 Cal. 3d 616 (1974).

To be considered habitable, rental units must have effective waterproofing and weather protection; plumbing, gas, electricity, and electrical wiring and equipment in good working order; hot and cold water; adequate heat; all areas maintained free of garbage, rodents, and vermin; floors, stairways, and railings that are in good repair; and adequate garbage receptacles. CAL. CIV. CODE § 1941.1.

The landlord is not responsible for damages caused by the tenant, their guest, family, or pets. CAL. CIV. CODE § 1941.2.

What steps can I take to force my landlord to make repairs to my apartment?

There are several legal options a tenant may chose from to force a landlord to make repairs. Tenants should not be intimidated to enforce their right to reside in a safe and livable unit. Tenants are protected from eviction for 180 days after a repair request is made because an action to evict the tenant after such a request is statutorily presumed to be retaliatory. CAL. CIV. CODE § 1942.5. If a rental unit has habitability issues that directly affect a tenant’s health or safety and the landlord does not make repairs, the tenant can pursue the below steps.

Make a Written Request: The first thing a tenant should do is make a written request to the landlord. The written request may be by email or by regular postal mail. A repair complaint does not need to be sent certified. The request should state what repair is needed, what the impact the defect has on the tenant, and whether the repair needed is urgent. Once the request is made, the landlord is given a reasonable amount of time to make the repairs, usually thirty days unless it is an emergency situation. The tenant should keep a copy of the request and should take photographs of the areas needing repair. If after a reasonable amount of time there is no response from the landlord, and the issue is not an emergency, the tenant should make a second written request.

Call the Appropriate Code Enforcement Agency: If the landlord does not respond to the tenant’s written requests for repairs or it is an urgent issue, the tenant can call the appropriate code enforcement agency to arrange for an inspection of the unit. If the area that needs repair violates any state or local building codes or health codes, the landlord will be issued a Notice of Violation and be compelled to make the repairs or face monetary fines. This option may be a risky one, however, for a tenant that lives in a unit that is unpermitted or illegal. (See below: Can I force my landlord to make repairs even if I live in an illegal unit?)

There are different departments that a tenant can call depending on what type of repair is needed (i.e., building code violations, bug or rodent infestations, extensive mold) and what city the tenant lives in. Some of the most common agencies that a tenant can call to have their unit inspected are the following: Pacific Gas & Electric (PG&E); City of San Francisco Department of Building Inspection; City of San Francisco Department of Public Health; City of Berkeley Housing Code Enforcement; City of Berkley Vector Control Program; City of Oakland Code Enforcement Department; City of Hayward Code Enforcement Division; City of Alameda Code Enforcement Department; Alameda County Vector Control Services and Alameda County Public Health Department; City Richmond Residential Rental Inspection Program; and Contra Costa County Mosquito and Vector Control.

Repair and Deduct: If the tenant has requested repairs and a reasonable amount of time (typically thirty days) has gone by, but the landlord has not repaired the condition, the tenant may make the repairs themselves and deduct the cost of the repairs from their rent. CAL. CIV. CODE § 1942. A deduction of up to one month’s rent to pay for repairs may be taken up to two times in a twelve-month period. Id. A copy of the receipts should be submitted to the landlord along with the reduced rent payment. Id. Tenants should be cautious when using this option as the landlord may use it as an excuse to attempt an eviction for nonpayment of rent. Any tenant considering this option should speak with a tenant rights lawyer.

Withholding Rent: This option is an extreme option, only to be taken in the most serious situations. It is recommended that a tenant speak to an experienced tenant lawyer before withholding rent because a landlord faced with a rent strike may attempt to evict for nonpayment.

A tenant who plans to withhold some or all of their rent should give notice to the landlord of their intent. The law does not state how much or for how long a tenant can withhold rent, but this tool may help the tenant negotiate for repairs.

Vacate or Abandon the Premises: Under certain extreme circumstances, a tenant can move out of an uninhabitable rental unit rather than attempt to have repairs made. CAL. CIV. CODE § 1942. If a tenant abandons a rental unit because of serious health and safety concerns, the landlord is not entitled to collect rent. Id.

In this situation, the tenant likely has an affirmative case against the landlord and can bring a lawsuit for a constructive eviction. When the property is so defective that it is unfit to live in and the tenant is forced to abandon the property, the tenant can file a cause of action for constructive eviction. <em>Stoiber v. Honeychuck</em>, 101 Cal. App. 3d 903, 921 (1980), citing Groh v. Kover’s Bull Pen, Inc., 221 Cal. App. 2d 611 (1963).

If a tenant is considering moving out due to uninhabitable conditions, they should immediately speak to an experienced tenant rights attorney before giving the landlord a notice of an intent to vacate. If the tenant has already abandoned the property, a tenant rights lawyer can advise as to whether the tenant has claims justifying filing a lawsuit against the landlord.

File a Petition With the Local Rent Board: Many cities have local rent-control agencies or rent boards that allow a tenant to file a petition for decreased rent for unaddressed repairs. Examples include the City of San Francisco Rent Board, the City of Oakland Rent Adjustment Program, the City of Berkeley Rent Stabilization Board, the City of Richmond Rent Program, the City of Alameda Rent Stabilization Program, and the City of Hayward Rent Stabilization Program. Before filing a petition, the tenant should have previously made repair requests in writing and have proof that the landlord ignored or did not properly address the repairs. The tenant is required to show that the landlord’s failure to timely repair has led to a substantial decrease in services – that the tenant is suffering a loss of the use of or enjoyment of the rental unit. This could include lack of heat, the presence of mold, rodents, leaks, holes in walls, and electrical or plumbing issues.

It is important to note that rent control agencies only have the power to reduce the rent, not to force the landlord to make repairs. Since the tenant must remain living in a unit that lacks certain livable standards, this is not always the ideal route to take if the issues are severe. But, if the tenant is unable to repair and deduct themselves and cannot vacate, the tenant may want to consider this option. Tenants should consult with a tenant lawyer with experience in San Francisco, Berkeley, Richmond, Hayward or Alameda to determine if filing a petition is an option worth pursuing.

Can I force my landlord to make repairs even if I live in an illegal unit?

A tenant living in unsafe conditions in an unpermitted or illegal unit (a unit without a certificate of occupancy) should contact a tenant rights attorney before calling the city out to inspect. While illegal units are subject to rent control, code enforcement agencies have been known to red tag illegal units, which may lead to tenants being forced to vacate. Some cities are more protective of tenants than others. If you live in an illegal unit in San Francisco, you will want to contact one of our San Francisco tenant lawyers. If you live in an illegal unit in Oakland, you will want to contact one of our Oakland tenant lawyers.

Can I file a lawsuit against my landlord for failure to make repairs?

Depending on the severity of the repair issues, a tenant can file a lawsuit against a landlord who fails to repair. Under California law, tenants may have one or more of the following causes of action against a landlord:

  • Breach of Warranty of Habitability
  • Breach of Quiet Enjoyment
  • Negligent Infliction of Emotional Distress
  • Intentional Infliction of Emotional Distress
  • Wrongful Eviction
  • Constructive Eviction
  • Negligence and Negligence Per Se
  • Violation of Local Rent Ordinance
  • Unfair Business Practices
  • Elder Abuse
  • Harassment
  • Uncured Building Inspection Violation

Some of the damages a tenant may seek to recover in a lawsuit against their landlord are rent that was previously paid to the landlord, out-of-pocket expenses, property damage, payment for emotional suffering, damages for physical harm, treble damages, punitive damages, and future damages. Also, the prevailing party to such a lawsuit may be entitled to attorney fees. CAL. CIV. CODE § 1942.4.

Because each cause of action requires the tenant to prove specific elements to recover damages, and each cause of action has a specific statute of limitations (i.e., a time limit for which a lawsuit must be filed or preserved), a tenant should call Tobener Ravenscroft LLC to speak with an experienced tenant rights attorney about their potential claims.