TENANT RIGHTS

631 O'Farrell Street, No. 615, San Francisco CA / 870 Market Street, No. 445, San Francisco CA

415.615.2600

Welcome to the Law Office of Shaye Larkin

Tenant Rights To Habitable Premises

In California, residential tenants have the right to safe and habitable housing. California Civil Code Section 1941.1 sets forth the basic standards landlords must meet in order for the rental unit to be considered “tenantable” (able to be rented out):

1. Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.

2. Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order.

3. A water supply approved under applicable law that is under the control of the tenant, capable of producing hot and cold running water, or a system that is under the control of the landlord, that produces hot and cold running water, furnished to appropriate fixtures, and connected to a sewage disposal system approved under applicable law.

4. Heating facilities that conformed with applicable law at the time of installation, maintained in good working order.

5. Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order.

6. Building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin.

7. An adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the time of the commencement of the lease or rental agreement, with the landlord providing appropriate serviceable receptacles thereafter and being responsible for the clean condition and good repair of the receptacles under his or her control.

8. Floors, stairways, and railings maintained in good repair.

9. A locking mail receptacle for each residential unit in a residential hotel, as required by Section 17958.3 of the Health and Safety Code.

If the landlord fails to provide these basic minimum standards of habitability, this decreases the rental value of the property and the tenant may be entitled to either a reduction in rent (including a refund of rents already paid), a withholding of future rent until repairs are made, and/or sue for damages. This assumes the tenant themselves did not cause the damage.

Specifically, California Civil Code Section 1941.3(c) states: “the rights and remedies of tenant for a violation of this section by the landlord shall include those available pursuant to Sections 1942, 1942.4, and 1942.5, an action for breach of contract, and an action for injunctive relief pursuant to Section 526 of the Code of Civil Procedure. Additionally, in an unlawful detainer action, after a default in the payment of rent, a tenant may raise the violation of this section as an affirmative defense and shall have a right to the remedies provided by Section 1174.2 of the Code of Civil Procedure.”

Civil Code Section 1942 provides for a “repair and deduct remedy” in situations where the repair issue pertains to a condition affecting habitability and the tenant has given the landlord notice at least 30 days in advance of the issue, but the landlord has failed to act. Section 1942 sets forth very clear rules for when a tenant can “repair and deduct”, and how:

Civil Code Section 1942

(a) If within a reasonable time after written or oral notice to the landlord or his agent, as defined in subdivision (a) of Section 1962, of dilapidations rendering the premises untenantable which the landlord ought to repair, the landlord neglects to do so, the tenant may repair the same himself where the cost of such repairs does not require an expenditure more than one month’s rent of the premises and deduct the expenses of such repairs from the rent when due, or the tenant may vacate the premises, in which case the tenant shall be discharged from further payment of rent, or performance of other conditions as of the date of vacating the premises. This remedy shall not be available to the tenant more than twice in any 12-month period.

(b) For the purposes of this section, if a tenant acts to repair and deduct after the 30th day following notice, he is presumed to have acted after a reasonable time. The presumption established by this subdivision is a rebuttable presumption affecting the burden of producing evidence and shall not be construed to prevent a tenant from repairing and deducting after a shorter notice if all the circumstances require shorter notice.

(c) The tenant’s remedy under subdivision (a) shall not be available if the condition was caused by the violation of Section 1929 or 1941.2. (The condition must not have been caused by the fault of the tenant to use the premises properly for their appropriate use and with ordinary care)

(d) The remedy provided by this section is in addition to any other remedy provided by this chapter, the rental agreement, or other applicable statutory or common law.

Civil Code Section 1942.5 prohibits the landlord from retaliating against the tenant for complaining about habitability issues. Examples of retaliation may include and but are not limited to raising the rent, serving the tenant with an eviction notice, or decreasing services.

California Health and Safety Code Section 17920.3 has some additional requirements: Any building or portion thereof including any dwelling unit, guestroom or suite of rooms, or the premises on which the same is located, in which there exists any of the following listed conditions to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants thereof shall be deemed and hereby is declared to be a substandard building:

  (a) Inadequate sanitation shall include, but not be limited to, the following:
   (1) Lack of, or improper water closet, lavatory, or bathtub or shower in a dwelling unit.
   (2) Lack of, or improper water closets, lavatories, and bathtubs or showers per number of guests in a hotel.
   (3) Lack of, or improper kitchen sink.
   (4) Lack of hot and cold running water to plumbing fixtures in a hotel.
   (5) Lack of hot and cold running water to plumbing fixtures in a dwelling unit.
   (6) Lack of adequate heating.
   (7) Lack of, or improper operation of required ventilating equipment.
   (8) Lack of minimum amounts of natural light and ventilation required by this code.
   (9) Room and space dimensions less than required by this code.
   (10) Lack of required electrical lighting.
   (11) Dampness of habitable rooms.
   (12) Infestation of insects, vermin, or rodents as determined by a health officer or, if an agreement does not exist with an agency that has a health officer, the infestation can be determined by a code enforcement officer, as defined in Section 829.5 of the Penal Code, upon successful completion of a course of study in the appropriate subject matter as determined by the local jurisdiction.
   (13) Visible mold growth, as determined by a health officer or a code enforcement officer, as defined in Section 829.5 of the Penal Code, excluding the presence of mold that is minor and found on surfaces that can accumulate moisture as part of their properly functioning and intended use.
   (14) General dilapidation or improper maintenance.
   (15) Lack of connection to required sewage disposal system.
   (16) Lack of adequate garbage and rubbish storage and removal facilities, as determined by a health officer or, if an agreement does not exist with an agency that has a health officer, the lack of adequate garbage and rubbish removal facilities can be determined by a code enforcement officer as defined in Section 829.5 of the Penal Code.

(b) Structural hazards shall include, but not be limited to, the following:
   (1) Deteriorated or inadequate foundations.
   (2) Defective or deteriorated flooring or floor supports.
   (3) Flooring or floor supports of insufficient size to carry imposed loads with safety.
   (4) Members of walls, partitions, or other vertical supports that split, lean, list, or buckle due to defective material or deterioration.
   (5) Members of walls, partitions, or other vertical supports that are of insufficient size to carry imposed loads with safety.
   (6) Members of ceilings, roofs, ceiling and roof supports, or other horizontal members which sag, split, or buckle due to defective material or deterioration.
   (7) Members of ceilings, roofs, ceiling and roof supports, or other horizontal members that are of insufficient size to carry imposed loads with safety.
   (8) Fireplaces or chimneys which list, bulge, or settle due to defective material or deterioration.
   (9) Fireplaces or chimneys which are of insufficient size or strength to carry imposed loads with safety.

Best Procedure to Follow When Addressing Repair Issues

1) Put the repair request in writing, even if you have already told your landlord about it verbally. Here is the suggested language to use, and you can put it in an email or a written letter that you mail to them (make a copy and send by certified mail):

Date: ___________
Dear ___________________________,
I am writing to notify you of a repair issue in my apartment that requires your attention. This notice shall serve as my 30 day written notice prior to withholding my rent / repairing the item myself and deducting the cost from my rent (select one).
The issue requiring repair is: _________________________________________________________________

This issue affects me by _________________________________________________________________



This issue relates to my safety and the habitability of the premises because:   _________________________________________________________________

Thank you for your anticipated follow through,

____________________________________ (Signature)

____________________________________ (Print Name)

____________________________________ (Address of Premises)

Remember that before you can use this remedy, you must follow these rules:

1. You must not spend more than one month's rent

2. The issue cannot be your fault! (caused by your own negligence, failure to use the premises for their appropriate use, and want of ordinary care)

3. You cannot use the repair and deduct remedy more than twice in a 12 month period.

4. Once you have given your landlord notice in writing, allow them a reasonable amount of time to fix the problem (30 days is usually enough, but some repairs are not easily fixed and may take more time. So long as your landlord has shown you they are taking steps toward fixing the problem, you should be somewhat flexible. Of course, if the issue is affecting your immediate health and safety, your landlord should agree for you to temporarily stay in a hotel and deduct that cost from your rent).

5. Be sure to collect evidence, such as photos and videos of the condition. Gather bids and pricing information but be sure to only go with licensed professionals for work that requires a license. Attach bills and receipts for the work completed to your next rent payment, along with a letter explaining the reason for the work. Also attach the letter you previously wrote to the landlord, giving them the opportunity to repair the issue themselves and which they failed to do.

6. Note that you should NOT reduce the rent until you have already done the work and paid for it.

7. Note that the “repair and deduct” remedy is only for issues that affect habitability. If there is an issue in your apartment that does not affect habitability safety but nonetheless requires repair, such as a broken dishwasher (unless it's leaking water, in which case, it IS a safety issue), you should still send your landlord a letter requesting repair, but you may have to file a complaint with your jurisdiction's “Rent Board” to report a “reduction in services” if your landlord does not respond. If your apartment does not fall under a Rent Board's jurisdiction, small claims court is another option, but I'm always in favor of trying to work it out with your landlord first, before filing any complaints, especially when it is not an issue affecting habitability.

Welcome to the Law Office of Shaye Larkin

Tenant Rights To Habitable Premises

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