Being a tenant in California comes with its fair share of challenges, especially when the rental property falls into disrepair. Under the implied warranty of habitability, the landlord is legally responsible for maintaining a habitable rental unit – including making repairs to the property. Sometimes, it is difficult to contact or compel the landlord to have the property repaired in a timely manner. In this circumstance, the tenant has some options to mediate the situation, including the “repair and deduct” remedy (Cal. Civ. Code § 1942).
The “repair and deduct” remedy allows the tenant to use up to one month’s rent to make repairs to the rental property. The remedy extends to conditions that make the property uninhabitable for the tenant. Habitability is defined by both statute and state law, focusing primarily on the tenant’s health and safety, including conditions such as a leak in the roof or a broken water heater*. For example, the cable going out in the rental property would not be considered an uninhabitable condition, and would not be covered by the remedy.
Steps Required to Repair & Deduct
In order for a tenant to be able to withhold rent for the purposes of making a repair, the following steps must be followed:
- The tenant must inform the landlord of the specific repairs required. This notice can be provided either orally or in writing.
- The landlord must be given a reasonable period of time to make the requested repairs. “Reasonable” depends on the defect and type of repair, but 30 days is usually considered reasonable, however a shorter period may also be considered reasonable.
- After a reasonable amount of time has passed, if the landlord has not completed the repairs, the tenant may make the repairs his or herself, or hire a professional.
- The cost of the repairs may then be deducted from the month’s rent in which the repairs took place.
- The tenant should keep all receipts related to the repairs.
It is a good idea for the tenant to give a written notice to the landlord stating why the full rent amount was not paid, but it is not a legal requirement.
Limitations on Repair & Deduct
This legal solution does come with a few limitations:
- The tenant cannot use the remedy more than twice in any 12-month period.
- The tenant must give the landlord a reasonable period of time to make the needed repairs after notifying the landlord. The time allowed to make the repairs depends on the defect at issue. California statute defaults to 30 days being a reasonable amount of time for most repairs, however there are other situations in which 30 days is far too long**. For example, when a water heater breaks, the reasonable time a landlord has to repair the water heater is more along the lines of 3-4 days.
- The damage must not have been cause by the tenant themselves.
To get a better understanding of how the remedy works, we will apply it to a real life scenario. Tom (the “tenant”) is leasing a one-story house in Redwood City and pays $3,500 per month in rent to Larry (the “landlord”). During the winter months, the tenant discovers a leak in the roof in the living room, and notifies the landlord the next day. After five weeks, the tenant has not heard from the landlord and decides to take matters into his own hands. The tenant is allotted $3,500 to find a contractor and make the repairs to the roof. The tenant then will not owe any rent for the month in which the repairs are made, with that money being spent on making the property habitable.
Like most legal remedies, this method does have some risks involved. In the event that the defects are not serious enough to justify use of the remedy, the landlord can either sue to recover the rent owed, or file an eviction action. Due to the complexity and variability of the law concerning this remedy, it would be wise to seek out legal counsel prior to engaging in this activity.
* Cal. Civ. Code § 1941.1 and Green v. Superior Court, 10 Cal.3d 616 (1974)
** Cal. Civ. Code § 1942(b))