Q: I’m a tenant and a weekly reader of your column. I’ve noticed that you seldom answer questions from tenants but I’m hoping you’ll answer this one. My family and I rent a home in Suisun City. It’s a very old house downtown. Over the past several months a number of problems have cropped up in the house that the landlord won’t fix. Or at least hasn’t fixed despite our numerous requests. As an example, the roof in my daughter’s bedroom leaks. Fortunately it hasn’t rained too much, but still it leaks. The linoleum in the kitchen is in really bad shape and impossible to really get clean. There are several electrical sockets around the house that just don’t work. My son has no electricity in his bedroom. I’ve threatened the landlord that we are going to withhold the rent and he says if we do he’ll evict us. We are in the middle of a three-year lease. What should we do and how do we do it? Thanks.
A: Well, the reason I seldom answer questions from tenants is that I seldom get them. It seems that homeowners are much more likely to write in. So I’m happy to field your question.
Tenants have a number of remedies available to them when dealing with landlords who won’t fix problems in the home or apartment.
All of these remedies presume the tenant has given the landlord ample notice of the problem and a reasonable time to fix it.
The least serious is simply to fix it yourself and bill the landlord for the cost of the repair. In practice, you’d deduct the amount of the repair from your rent and give the landlord an invoice and receipts.
For example, if the bathroom sink were clogged you’d inform the landlord. If he doesn’t get it fixed within, say, five days you could call a plumber, pay the bill, and deduct the amount you paid from the rent.
This works for problems that don’t technically affect the habitability of the property or the safety of the tenants. Deducting the cost from the rent also implies that the cost of repair isn’t much more than a month’s rent or so and that you can afford to pay the bill in the first place.
More serious problems, which translated, means more expensive problems, can also allow the tenant to simply break the lease and move.
Actually withholding rent until a problem is fixed has got to be the most misunderstood remedy in the tenant’s arsenal and frequently gets tenants in trouble with the courts.
Withholding rent is only available when habitability issues are at stake. In this context, the word habitability has a legal meaning. It doesn’t mean that the paint is chipping or the microwave doesn’t work.
A short list of habitability issues include a property with toxics (e.g. lead or chemicals), inadequate sanitation, ineffective waterproofing (e.g. leaking roof), lack of running water, bad electrical system, inadequate natural light and ventilation and any other serious safety issue.
The above list isn’t comprehensive, but you get the idea.
Certainly your leaking roof qualifies as does the lack of electricity in a bedroom.
If you decide to withhold rent the first decision you have to make is how much to withhold. Technically, you should only withhold the amount that would reduce the rent to the actual rental value of the property in its current condition.
If the rent is $1,500 per month and the furnace is broken during the winter, the rental value may be only $500 and you’d be justified in withholding $1,000 per month.
How do you know what the reasonable rental value is? I don’t know. Basically you make a good faith guess.
Once you’ve made your guess you notify the landlord in writing that you will be withholding, in my example, $1,000 per month until the problem is fixed.
Although the law doesn’t require it, it is good practice to then put the $1,000 per month into a special bank account you’ve opened for that purpose.
That’s because the landlord just might file an eviction lawsuit, called an unlawful detainer, to try to get you out for not paying the rent.
During eviction trials, judges hear from tenants all the time that they were just withholding rent, when in fact they just didn’t have the money to pay the rent.
If you can show the judge you weren’t refusing to pay the rent because you couldn’t, as demonstrated by depositing the money into the bank account, it will go a long way towards helping your argument.
Tim Jones is a real estate attorney in Fairfield. If you have a real estate question you would like answered in this column you can contact him at SolanoScene@TJones-Law.com.