DEALING WITH PROBLEMS

Most landlord-tenant relationships go smoothly. However, problems sometimes arise. For example, what if the rental unit's furnace goes out in the middle of the winter? What happens if the landlord sells the building or decides to convert it into condominiums? This section discusses these and other possible issues and problems in the landlord-tenant relationship.

REPAIRS AND HABITABILITY

A rental unit must be fit to live in; that is, it must be habitable. In legal terms, "habitable" means that the rental unit is fit for occupation by human beings and that it substantially complies with state and local building and health codes that materially affect tenants' health and safety.¹¹⁶

California law makes landlords and tenants each responsible for certain kinds of repairs, although landlords ultimately are legally responsible for assuring that their rental units are habitable.

Landlord's responsibility for repairs

Before renting a rental unit to a tenant, a landlord must make the unit fit to live in, or habitable. Additionally, while the unit is being rented, the landlord must repair problems which make the rental unit unfit to live in, or uninhabitable.

The landlord has this duty to repair because of a California Supreme Court case, called Green v. Superior Court,¹¹⁷ which held that all residential leases and rental agreements contain an implied warranty of habitability. Under the "implied warranty of habitability," the landlord is legally responsible for repairing conditions that seriously affect the rental unit's habitability.¹¹⁸ That is, the landlord must repair substantial defects in the rental unit and substantial failures to comply with state and local building and health codes.¹¹⁹ However, the landlord is not responsible under the implied warranty of habitability for repairing damages which were caused by the tenant or the tenant's family, guests, or pets.¹²⁰

Generally, the landlord also must do maintenance work which is necessary to keep the rental unit liveable.¹²¹ Whether the landlord or the tenant is responsible for making less serious repairs is usually determined by the rental agreement.

The law is very specific as to what kinds of conditions make a rental uninhabitable. These are discussed below.

Tenant's responsibility for repairs

Tenants are required by law to take reasonable care of their rental units, as well as common areas such as hallways and outside areas. Tenants must act to keep those areas clean and undamaged. Tenants also are responsible for repair of all damage that results from their neglect or abuse, and for repair of damage caused by anyone for whom they are responsible, such as family, guests, or pets.¹²² Tenants' responsibilities for care and repair of the rental unit are discussed in detail below.

Conditions that make a rental unit legally uninhabitable

There are many kinds of defects that could make a rental unit unlivable. The implied warranty of habitability requires landlords to maintain their rental units in a condition fit for the "occupation of human beings "¹²³ In addition, the rental unit must "substantially comply" with building and housing code standards that materially affect tenants' health and safety.¹²⁴

A rental unit may be considered uninhabitable (unlivable) if it contains a lead hazard that endangers the occupants or the public, or is a substandard building because, for example, a structural hazard, inadequate sanitation, or a nuisance endangers the health, life, safety, property, or welfare of the occupants or the public.¹²⁵

A dwelling also may be considered uninhabitable (unlivable) if it substantially lacks any of the following:¹²⁶

• Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
• Plumbing facilities in good working order, including hot and cold running water, connected to a sewage disposal system
• Gas facilities in good working order.
• Heating facilities in good working order.
• An electric system, including lighting, wiring, and equipment, in good working order.
• Clean and sanitary buildings, grounds, and appurtenances (for example, a garden or a detached garage), free from debris, filth, rubbish, garbage, rodents, and vermin.
• Adequate trash receptacles in good repair.
• Floors, stairways, and railings in good repair.

In addition to these requirements, each rental unit must have all of the following:

• A working toilet, wash basin, and bathtub or shower. The toilet and bathtub or shower must be in a room which is ventilated and allows privacy.
• A kitchen with a sink that cannot be made of an absorbent material such as wood.
• Natural lighting in every room through windows or skylights. Windows in each room must be able to open at least halfway for ventilation, unless a fan provides mechanical ventilation.
• Safe fire or emergency exits leading to a street or hallway. Stairs, hallways, and exits must be kept litter-free. Storage areas, garages, and basements must be kept free of combustible materials.¹²⁷
• Operable deadbolt locks on the main entry doors of rental units, and operable locking or security devices on windows.¹²⁸
• Working smoke detectors in all units of multi-unit buildings, such as duplexes and apartment complexes. Apartment complexes also must have smoke detectors in common stairwells.¹²⁹
• Ground fault circuit interrupters for swimming pools and antisuction protections for wading pools in apartment complexes and other residential settings (but not single family residences).¹³⁰

The implied warranty of habitability is not violated merely because the rental unit is not in perfect, aesthetically pleasing condition. Nor is the implied warranty of habitability violated if there are minor housing code violations, which, standing alone, do not affect habitability.¹³¹

While it is the landlord's responsibility to install and maintain the inside wiring for one telephone jack, the landlord's failure to do so probably does not violate the implied warranty of habitability.¹³²

An authoritative reference book suggests two additional ways in which the implied warranty of habitability may be violated. The first is the presence of mold conditions in the rental unit that affect the livability of the unit or the health and safety of tenants. The second follows from a new law that imposes obligations on a property owner who is notified by a local health officer that the property is contaminated by methamphetamine. (See When You Have Decided to Rent, Methamphetamine Contamination.) This reference book suggests that a tenant who is damaged by this kind of documented contamination may be able to claim a breach of the implied warranty of habitability.¹³³

Limitations on landlord's duty to keep the rental unit habitable

Even if a rental unit is unlivable because of one of the conditions listed above, a landlord may not be legally required to repair the condition if the tenant has not fulfilled the tenant's own responsibilities.

In addition to generally requiring a tenant to take reasonable care of the rental unit and common areas (see above), the law lists specific things that a tenant must do to keep the rental unit liveable.

Tenants must do all of the following

• Keep the premises "as clean and sanitary as the condition of the premises permits."
• Use and operate gas, electrical, and plumbing fixtures properly. (Examples of improper use include overloading electrical outlets; flushing large, foreign objects down the toilet; and allowing any gas, electrical, or plumbing fixture to become filthy.)
• Dispose of trash and garbage in a clean and sanitary manner.
• Not destroy, damage, or deface the premises, or allow anyone else to do so
• Not remove any part of the structure, dwelling unit, facilities, equipment, or appurtenances, or allow anyone else to do so.
• Use the premises as a place to live, and use the rooms for their intended purposes. For example, the bedroom must be used as a bedroom, and not as a kitchen.¹³⁴
• Notify the landlord when dead bolt locks and window locks or security devices don't operate properly.¹³⁵

However, a landlord may agree in writing to clean the rental unit and dispose of the trash.¹³⁶

If a tenant violates these requirements in some minor way, the landlord is still responsible for providing a habitable dwelling, and may be prosecuted for violating housing code standards. If the tenant fails to do one of these required things, and the tenant's failure has either substantially caused an unlivable condition to occur or has substantially interfered with the landlord's ability to repair the condition, the landlord does not have to repair the condition.¹³⁷ However, a tenant cannot withhold rent or sue the landlord for violating the implied warranty of habitability if the tenant has failed to meet these requirements.¹³⁸

Responsibility for other kinds of repairs

As for less serious repairs, the rental agreement or lease may require either the tenant or the landlord to fix a particular item. Items covered by such an agreement might include refrigerators, washing machines, parking places, or swimming pools. These items are usually considered "amenities," and their absence does not make a dwelling unit unfit for living.

These agreements to repair are usually enforceable in accordance with the intent of the parties to the rental agreement or lease.¹³⁹

Tenant's agreement to make repairs

The landlord and the tenant may agree in the rental agreement or lease that the tenant will perform all repairs and maintenance in exchange for lower rent.¹⁴⁰ Such an agreement must be made in good faith: there must be a real reduction in the rent, and the tenant must intend and be able to make all the necessary repairs. When negotiating the agreement, the tenant should consider whether he or she wants to try to negotiate a cap on the amount that he or she can be required to spend making repairs. Regardless of any such agreement, the landlord is responsible for maintaining the property as required by state and local housing codes.¹⁴¹

¹¹⁶ Green v. Superior Court (1974) 10 Cal.3d 616, 637-638 [111 Cal.Rptr. 704, 719]; Civil Code Sections 1941, 1941.1.
¹¹⁷ Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704].
¹¹⁸ Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704]; Hinson v. Delis (1972) 26 Cal.App.3d 62 [102 Cal.Rptr. 661].
¹¹⁹ Green v. Superior Court (1974) 10 Cal.3d 616, 637-638 [111 Cal.Rptr. 704, 718-719].
¹²⁰ Civil Code Sections 1929, 1941.2.
¹²¹ Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704].
¹²² Civil Code Sections 1929, 1941.2.
¹²³ Civil Code Section 1941.
¹²⁴ Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704].
¹²⁵ Civil Code Section 1941.1 paragraph 1, Health and Safety Code Sections 17920.3, 17920.10.
¹²⁶ Civil Code Section 1941.1.
¹²⁷ Health and Safety Code Sections 17900-17995.
¹²⁸ Civil Code Section 1941.3. See this section for additional details and exemptions. Remedies for violation of these requirements are listed at Civil Code Section 1941.3(c). See California Practice Guide, Landlord-Tenant, Paragraphs 3:21.5-3:21.10 (Rutter Group 2004).
¹²⁹ Health and Safety Code Section 13113.7.
¹³⁰ Health and Safety Code Sections 116049.1, 116064.
¹³¹ Green v. Superior Court (1974) 10 Cal.3d 616, 637-638 [111 Cal.Rptr. 704, 718-719]; Hinson v. Delis (1972) 26 Cal.App.3d 62, 70 [102 Cal.Rptr. 661, 666].
¹³² Civil Code Section 1941.4; Public Utilities Code Section 788. See California Practice Guide, Landlord-Tenant, Paragraph 3:21.10 (Rutter Group, 2004).
¹³³ Moskovitz et al., California Landlord-Tenant Practice, Section 3.11B (Cal. Cont. Ed. Bar, 2006); see Health and Safety Code Sections 25400.10-25400.46, effective January 1, 2006.
¹³⁴ Civil Code Section 1941.2(a).
¹³⁵ Civil Code Section 1941.3(b)(5).
¹³⁶ Civil Code Section 1941.2(b).
¹³⁷ Civil Code Section 1941.2(a).
¹³⁸Civil Code Sections 1929, 1942(c); see Brown, Warner and Portman, The California Landlord's Law Book, Vol. I: Rights & Responsibilities, pages 11/8-11/9(NOLO Press 2005).
¹³⁹ Portman and Brown, California Tenants' Rights, pages 11/6-11/7 (NOLO Press 2005).
¹⁴⁰ Civil Code Section 1942.1.
¹⁴¹ Portman and Brown, California Tenants' Rights, page 2/5 (NOLO Press, 2005).

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Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, Orange County, California.  He can be reached at (714) 954-0700, or by email.  The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.