Power to the renter when it comes to habitability laws

By From page C2 | December 29, 2012

Q: My family and I became tenants last year after losing our home to a foreclosure. It had been many years since my wife and I rented. However, we found a guy who rents out a house he used to live in. Everything was fine for the first six or seven months, but then the rains came and the roof has been leaking. It leaked first in a spare bedroom, so we just put a bucket under it. Then it started leaking in my daughter’s bedroom next to it. The sheet rock on the ceiling is slowly coming down and mold is starting to grow. So of course we contacted the landlord. He came out and looked. He then had his son go on top of the roof and use some black mastic here and there. He said that would fix it. Then it rained again last week and the water came right down in the same places. I got on the phone with the landlord and told him we were not going to pay anymore rent until he fixed the problem. His whole attitude changed and he said if we didn’t pay on time he’d throw us out on the street. He said as long as he was trying to fix it I couldn’t withhold rent. Mr. Jones, we aren’t complainers, but we can’t have our daughter staying in a room with falling sheet rock and mold. My brother owns a number of rental properties in Texas and he’s warning me that if we don’t pay the rent the landlord can evict us. What are our rights?
A: The landlord/tenant legal relationship in California is complicated at best.
As we go through this, remember that all landlord/tenant laws are state laws. That is, each state decides how they will regulate their rental market.
And, not surprisingly, California has a rather unique set of laws, almost all of which are designed to protect the consumer. In this case, you’re the consumer. So I’m afraid your brother may be very knowledgeable about Texas landlord/tenant law but that’s not a lot of help for you.
The issue you’re talking about is that big, scary and confusing area of the law collectively known as “habitability.” Habitability is the subject of great confusion, particularly for tenants. Over the years I’ve seen more tenants than I count who would argue that habitability is the same thing you might get from a new home builder in the form of a warranty.
For example; if you buy a new home and the following month a crack appears in the wall near the entryway you’d just call the builder and he’d fix it. That’s because it’s under warranty.
Habitability is completely different.
If a tenant has moved into that same home, and the same crack appears, it’s not a habitability issue, as I’ll explain.
California Civil Code section 1941 requires landlords to maintain the home in a habitable condition. That code section, and subsequent court decisions, have narrowed the scope of what’s considered a habitability issue.
On the short list are such things as:  Effective water and weather protection, adequate plumbing and sewage system, heating, a safe electrical system with at least one outlet in each room, and an adequate trash disposal system or procedure.
In your case it’s an easy call to determine that your landlord is violating the habitability laws by refusing to maintain a waterproof environment. Even though your landlord is aware of the problem, you should give him a written notice that there is a dangerous condition that needs to be repaired immediately.
His failure to make the repairs in a reasonable time, perhaps a week or two depending upon the weather, triggers your right to withhold rent. But you will want to do more than just withhold the rent. You’ll want to use it to hire a roofer to make the repair.
When a habitability issue is serious, as here, and the landlord fails to act, the tenant has a right to use his rent money to have the repair made. The landlord is still entitled to any amount of rent that was due above and beyond the amount you spend making the repair.
Make sure you hang onto any receipts from the repairs you’ve paid for. You must deliver copies of the receipts to the landlord with the remainder of your rent.
Also, if the repairs that are needed will cost more than one month’s rent, you can, at your option, abandon the rental property.
In other words, you can move and demand the return of your entire deposit, regardless of the time remaining on your lease.

Tim Jones


Discussion | 1 comment

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  • Lillian MillerDecember 29, 2012 - 10:59 am

    What you need to do is get out of the house as soon as legally/financially possible. If the landlord is this bad at fixing something that is pretty major and is actually damaging his house, what is he going to be like if the furnace stopped working, plumbing problems started, etc? He's not a good landlord and you will have problems the entire time you rent from him. I'm not a real estate expert like Mr. Jones but I've rented enough to recognize bad landlords. Mr Jones' advice is definitely spot on for this issue but you're just going to keep having trouble with any problems that come up. Definitely do as Mr Jones' suggests but if you are on a lease, as soon as it is done, you should move.

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