In California, the “implied warranty of habitability” provides one of the most critical arrows in the tenant’s quiver, and it requires every Landlord in the State to meet certain minimum requirements with regard to maintenance and upkeep of the apartment. A tenant deprived of timely and reasonable repairs has several options at their disposal to remedy the situation, including terminating the lease without penalty and moving elsewhere, withholding a portion of their rent, and repairing the problem themselves by hiring their own contractors and deducting the cost from their next rent payment.
Each of these options, along with their specific procedures and requirements, will be discussed more fully below, but as a California tenant you should simply understand that your Landlord has an obligation to keep your rental unit in decent shape with standard amenities like warm running water, adequate heat, sufficient security, and the like. If your Landlord has become derelict with his/her/its maintenance duties, this article will help you understand your rights. You may also contact the Law Offices of Dustin Collier for a free consultation by clicking here.
PROPERTY LAW AND THE RESIDENTIAL TENANCY
Before we get to the nuts and bolts of the implied warranty, let’s backup a bit and talk about property law more generally, which is helpful is understanding exactly what the implied warranty of habitability is and how it operates:
First of all, property law presupposes that any object, or “res” (which is latin for “thing”), comes with a bundle of attached rights which are referred to as “property rights” and which typically can be enforced in a court of law. Most of us, in everyday language, speak of property ownership in on/off, black-and-white, categorical terms. You either own something or you do not. This is not so under the law, however, as there are many rights that are automatically tethered to any piece of property, there are rights supplied by statute, and there are rights created by contracts between private entities and individuals. Many law professors analogize the property rights to a “bundle of sticks” because the law generally requires us, as lawyers, to pull out and analyze each right in the bundle individually.
Thus, what we traditionally think of as “property ownership” comprises just a single right in this bundle – the right to hold title to the property. There are numerous other rights though, such as the right to possession, the right to assign, and the right to modify. To make matters even more complicated, these rights typically vary amongst categories of property (e.g., real property rights are very different from personal property rights) and even from object to object. Thinking of property rights in this fashion is unnatural at first, but becomes second nature after a couple clear examples.
Example 1 – Easements
Suppose, for example, that I own a farm next to a factory that has no road access of any kind. One day, my neighbor approaches me and offers me $10,000 to allow him to build a private driveway running through the property so he can ship his goods from the factory to neighboring towns. I want to accept the offer, but I also want to ensure that I maintain title to the entire real property (complete with the driveway) in case I ever want to sell my farm to someone else. We will enter into contract that provides him with an “easement” across the property, which essentially means a limited right to trespass on the property. He will be allowed to trespass on my real property to construct a driveway and he will be allowed to drive trucks over it, but I maintain title to it and can sell the property to someone else.
However, if I sell the property to someone else, I am required to disclose the existence of the easement to the buyer and the buyer must continue to honor the easement by allowing the neighbor to drive across the property. In other words, once I gave my neighbor the easement (think of it as a stick), it was removed from the remaining property rights in the bundle and given to the neighbor until he chooses to do something else with it. I only own the remaining sticks in the bundle, and that’s all I can sell to any prospective buyer. The more rights I negotiate away out of my bundle, the fewer I have remaining to sell.
Example 2 – Condominiums Versus Apartments
A residential tenancy (also sometimes referred to by attorneys as a “leasehold”) is one of the most common forms of property ownership. That’s right, I said property ownership, because technically a tenant in a long-term lease, a vacation rental, or even staying in a hotel for the night owns certain property rights which the Landlord and the rest of the world is legally required to respect. When those rights are interfered with, the tenant usually has a variety of legal claims (lawyers call them “causes of action”) at their disposal to enforce those rights and seek compensation for their violation.
A condominium, by contrast, is owned by its resident. Apartment renters and condominium owners have some things in common, such as the right to possession of the property and right to exclude others (i.e., enforcement of trespass claims). Condominium owners, however, have purchased title to the property as well (which, keep in mind, is just one additional stick in the bundle). They can sell, transfer, divest, gift, or otherwise dispose of the property, while the renter has much more limited rights in that regard. On the other hand, the law provides the tenant with many rights that condominium owners don’t have, including the right to quiet use and enjoyment and the right to habitable premises.
This, of course, brings us full circle. One of the legal rights that every residential tenant in California has is the right to live in a habitable rental unit. If you rent instead of own your home, you are guaranteed to have this stick in your bundle.
Now, let’s carve that stick into the mighty arrow you will launch at your recalcitrant landlord…
IMPLIED WARRANTY OF HABITABILITY / TENANTABILITY
Around the world, there are two primary ways laws are created: (1) Through “common law,” which means that decisions in past cases (called “precedents”) are supposed to guide Judges in deciding new cases; and (2) through “codification” (creating “code law”) which essentially means the passage of laws in advance of any case being brought, such as by adopting Constitutions, passing statutes, and promulgating regulations. Some legal systems emphasize one category of law over the other (see, e.g., the British system based on common law versus the French system based on the Napoleonic Code). In the United States, we have a long tradition of relying heavily on both and they are generally entitled to equal weight within our courts.
Our Nation, in its infancy, had only a Constitution and a small smathering of statutes on which to rely for its court system to function. To ease the burden, our Courts quickly began to apply long-standing rules from British common law. Over time, we began to tweak their common law rules to suit our changing civilization. We also began to adopt more and more codes to supplement, modify, or guide the common law. Over time, our system became vastly different from that seen in Britain and today the two have some dramatic differences. We have, in many ways, adopted the best practices from common law and code systems alike.
The “implied warranty of habitability” is a perfect example of this fusion in progress, as California law provides both common law and statutory remedies for a landlord’s failure to maintain the premises. Even before the United States existed, British courts held that every tenant had the right to habitable rental premises. If a landlord failed to maintain the premises in a habitable condition, such as by allowing rats to run rampant during the plague, the tenant had three common law remedies:
- Termination: They could terminate the lease and vacate the premises without having to pay damages to the landlord for breaching the lease agreement by vacating early.
- Rent Withholding: They could withhold a portion of their rent. This was (and still is) a disfavored remedy because the tenant is only legally allowed to withhold the difference between the value of the property without the defect versus its “reasonable market value” with the defect and that is often very difficult to calculate with accuracy.
- Repair-and-Deduct: The tenant could pay to have the defect repaired and deduct the amount from future rent payments without giving the landlord lawful grounds to evict.
In California, the “implied warranty of habitability” was first adopted by the Court of Appeal in Hinson v. Delis (1972) 26 Cal.App.3d 62. The California Supreme Court then followed suit in Green v. Superior Court (1974) 10 Cal.3d 616. Since that time, California law has required every landlord to meet certain minimum habitability standards to avoid the common law remedies described above.
The warranty of habitability has also been codified at California Code of Civil Procedure section 1174.2 and Civil Code sections 1941-1942. These statutes reiterate and seek to further define the warranty. Civil Code section 1941 sets forth the basic definition, providing as follows:
“The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine.”
What constitutes a breach of the warranty?
How do you know when your Landlord has breached the warranty of habitability? Pursuant to California Civil Code section 1941.1, all of the following are automatically violations of the warranty of habitability:
- Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
- Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order.
- 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.
- Heating facilities that conformed with applicable law at the time of installation, maintained in good working order.
- Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order.
- 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.
- 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.
- Floors, stairways, and railings maintained in good repair.
- A locking mail receptacle for each residential unit in a residential hotel, as required by Section 17958.3 of the Health and Safety Code. This subdivision shall become operative on July 1, 2008.
California Civil Code sections 1941.3-1941.6 set further regulations on the warranty, such as requiring a deadbolt on the front door and installation of telephone jacks. More broadly, California Code of Civil Procedure section 1174.2(c) provides that any violation of a building or housing code which “materially affects health and safety” also constitutes a “substantial” breach of the warranty. California courts have yet to definitively decide comprehensively which building or housing codes fall into this definition, nor have they resolved whether building or housing code violations that do not materially affect health and safety can also constitute a breach of the warranty.
Finally, it is unclear whether the common law warranty established in Hinson and Green can apply to situations which do not technically violate any particular statute, building or housing code. Many other states have held that it can, making it likely that California will eventually follow suit.
What is completely clear is that the warranty is an evolving standard that adapts to our standard of living and civilization over time. Electrical lighting did not exist when the warranty was first established, but not it is fundamental requirement of every landlord. New standards will develop as technology adapts and we come to expect, as a society, a higher standard of living in our rental dwellings.
Thus, if your landlord has failed to keep the building in good repair, has failed to clear out vermin or pests, or has otherwise violated the standards described above, you may have a claim for breach of the warranty of habitability.
How do I enforce the warranty and implement my remedies?
If you believe the Landlord needs to make certain repairs to comply with the warranty, the first step is to notify your landlord in writing (and dated) of the precise issues causing your concern and expressing your expectation of a prompt repair. If your Landlord fails to address the matter within a “reasonable time,” the warranty has been violated. Under California Civil Code section 1942, thirty days is presumptively a “reasonable time” and, after thirty days has passed, you are permitted to implement the “repair-and-deduct” remedy described above. Under the authority of Green and Code of Civil Procedure section 1174.2, you can also withhold rent or terminate the lease, thereby completing the gamut of common law remedies established by the Brits so long ago.
Finally, if your Landlord attempts to evict you while in breach of the warranty, you can defend the eviction action on the basis of that breach under Code of Civil Procedure section 1174.2
What if I haven’t been a perfect tenant?
The foregoing should be taken in with caution. There are certain actions by the tenant which can nullify the warranty and relieve the Landlord of the duty to repair. In particular, California Civil Code section 1941.2 provides as follows:
“(a) No duty on the part of the landlord to repair a dilapidation shall arise under Section 1941 or 1942 if the tenant is in substantial violation of any of the following affirmative obligations, provided the tenant’s violation contributes substantially to the existence of the dilapidation or interferes substantially with the landlord’s obligation under Section 1941 to effect the necessary repairs:
(1) To keep that part of the premises which he occupies and uses clean and sanitary as the condition of the premises permits.
(2) To dispose from his dwelling unit of all rubbish, garbage and other waste, in a clean and sanitary manner.
(3) To properly use and operate all electrical, gas and plumbing fixtures and keep them as clean and sanitary as their condition permits.
(4) Not to permit any person on the premises, with his permission, to willfully or wantonly destroy, deface, damage, impair or remove any part of the structure or dwelling unit or the facilities, equipment, or appurtenances thereto, nor himself do any such thing.
(5) To occupy the premises as his abode, utilizing portions thereof for living, sleeping, cooking or dining purposes only which were respectively designed or intended to be used for such occupancies.
(b) Paragraphs (1) and (2) of subdivision (a) shall not apply if the landlord has expressly agreed in writing to perform the act or acts mentioned therein.”
The essence of section 1941.2 is that the tenant cannot cry foul at the Landlord’s failure to repair if the tenant himself/herself has created violations of the warranty or otherwise hindered the Landlord’s good faith efforts to repair. If you have contributed to the problems about which you complain, your Landlord may be free of liability for the breach (at least until you cure your own contribution).
If you believe your Landlord has violated your rights under the warranty of habitability or you are facing an eviction, please feel free to contact us to arrange for a free consultation.