Tenant's Rights in California to Withhold Rent or Repair and Deduct

by Beverly Bird

    Some California municipalities are known for their spiffy, luxurious rental properties, but this doesn't necessarily mean that the landlords are all top-notch and that you'll never have a problem with one. Fortunately, California is one of the stricter states when it comes to landlord responsibilities. Landlords have an obligation by statute to maintain an implied warrant of habitability – the premises must meet certain standards for health and safety. When landlords fail to do so, tenants have certain legal options, and landlords are prohibited by law from retaliating, such as by filing for eviction.

    No option is available to you unless you give your landlord an opportunity to make repairs. You must give him notice that you will take certain actions if he does not. For your own protection, send him written warning and call him as well. If you reach out by email, back it up by sending notice by regular mail, return receipt requested, so he can’t claim that he didn't receive your notice. You – or a friend or colleague – can hand-deliver the notice, but have your landlord sign an acknowledgment of receipt. You must then wait to allow him to act and fix whatever is wrong with your dwelling. Unfortunately, California law is less than clear on how much time you must give. The statutes say you must wait a "reasonable" time, but they don't state exactly what this is. It's generally accepted to mean 30 days unless you have an outright emergency, such as a burst pipe that's flooding your residence.

    You have the right under California law to withhold rent if your landlord doesn't respond to your notice, but this option is reserved for the most serious situations – there must exist an outright risk to your health or safety. Your burst pipe might qualify if you can't step into your bathroom without slipping and falling on the wet floor, but if it's simply affecting your water pressure, you can't withhold rent. You usually can't withhold your entire rent payment. You can hold back a percentage equal to whatever room you can't use versus the entire square footage, or you can withhold what the property might rent for if the damage was not repaired. For example, if your bathroom with its broken pipe represents 15 percent of your living space, you can withhold 15 percent of your rent payment. If a comparable rental with the same problem would only lease for $500 a month, you can withhold the amount in excess of $500. An exception exists if the problem is so severe that you must move out – in this case, you can usually withhold the entire rent.

    You can repair the problem yourself – or pay to have it done – then deduct the cost if the situation isn't hazardous enough to justify withholding rent. Unfortunately, you can only withhold up to the amount of your rent payment. For example, if your rent is $2,000 a month and repairing the pipe and associated damage costs $6,000, your only recourse to collect the $4,000 balance is to file a lawsuit against your landlord if you have the work done yourself. You're also limited to using this option no more than twice a year, but if your rental violates the implied warrant of habitability more often than this, you'd probably want to relocate anyway – California law also gives you the option of vacating the premises. You might have to justify what you spend on repairs, so get a few estimates before you pay for the work, You're usually justified in accepting the lowest or median price. If your rent is $2,000 and repairs cost $1,000, you can give your landlord a check for $1,000. When you do, make sure you also provide a copy of the receipt for the work.

    If you're thinking about exercising either of these options, speak with a local attorney to make sure your problem justifies the recourse. Otherwise, your landlord may be able to sue you and collect the rent anyway. If you paid for repairs, you could end up out that money and your full rental payment as well, so make sure you're within your rights. If you're withholding rent, put the money in escrow and notify your landlord that you've done so – don't just write off the money as yours to keep. You can't use either of these remedies if you, your family or a guest caused the problem.

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    About the Author

    Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

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