Having trouble getting you landlord to fix your leaky roof or faulty plumbing? You can assert your rights under the rules established by the California Supreme Court in the 1974 Green v. Superior Court (10 Cal 3d 616) decision. According to this decision every tenancy in California includes an Implied Warranty of Habitability which requires a landlord to provide housing that is in safe and sanitary condition. If your landlord fails to fulfill this responsibility you have certain rights you may exercise.

Unsafe and Unsanitary conditions:

The following is a list if housing code violations. If your home is plagued by any of the following problems, the unit is considered to be in violation of the housing code and you, as a tenant, have the right to expect that your landlord remedy the situation. A dwelling is considered untenantable if it substantially lacks any of the following affirmative standard characteristics:

1. Effective waterproofing and weather protection of roof and exterior wall, including unbroken windows and doors
   
2. Plumbing or gas facilities maintained in good working order
   
3. A water supply capable of producing hot and cold running water and connected to sewage disposal system
   
4. Heating facilities maintained in good working order
   
5. Electrical lighting with wiring and electrical equipment maintained in good working order
   
6. Building, grounds, and appurtenances 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 such receptacles under his/her control
   
8. Floors, stairways, and railings maintained in good repair

The law protects tenants from being subjected to living in unsanitary and unsafe rental units. However, the tenant is responsible for keeping his or her place and its fixtures clean, to properly dispose of garbage and not damage the structures. If a tenant fails to fulfill this responsibility s/he may have difficulty exercising his or her rights.

How to assert your rights:

There is a general procedure to follow in order to persuade your landlord to rectify an unsafe or unsanitary condition.

1. The first step to take when asserting your rights is to make a written request to your landlord that the damage be repaired within a reasonable time period. Thirty days is generally considered reasonable, although in an emergency such as a broken window in January or a nonfunctioning toilet, less time may be considered reasonable. As with all written correspondence with your landlord, keep a copy for your own records.
   
2. You could now call the Housing Inspection Department in your city and request an inspection of your unit. Be persistent! Make a follow-up call to insure that they will make the visit. The Housing Inspector can be a valuable tool since s/he must file a report and send a copy to your landlord. Under Berkeley's rent control law, if a landlord does not comply with the order s/he is not entitled to any rent increases.
   
3. If, after a reasonable amount of time, the repairs have not been made, send your landlord another letter notifying him/her that you will be withholding rent until the repairs are made. Although the law does not require it, we suggest that tenants place any withheld rent in a separate bank account. This action is to illustrate your good faith and to guarantee that you will have the money if you are required to pay it back in the future.
   
4. You may also have the repairs done yourself & deduct the cost from the rent (only if the cost is less than one months rent).
   
5. After the repairs are made, you must resume paying rent. However, you may not have to repay the full amount of rent you withheld. You may only owe your landlord a portion of the rent you withheld. This amount is what the rental unit was considered to be worth during the period of disrepair. Note: There is no law which stipulates the percentage of rent a tenant is obligated to pay back after a repair has been made. The value of the apartment during the period of disrepair could be evaluated through a process of negotiation between you and your landlord. For example, you and your landlord may agree that the apartment was only worth 75% of its usual value during the period of disrepair. Keep in mind that there is no formal schedule for evaluating the worth of the rental unit during a period of disrepair- that amount will be the result or your negotiation with your landlord.

Caution: Retaliation:

Although it is illegal, your landlord may try to evict you in retaliation for withholding rent. Your defense to such an action would be that you were not obligated to pay rent because your landlord materially violated the Warranty of Habitability. If you can prove in court that your landlord is trying to evict you in retaliation for you legally withholding rent, a court should not order an eviction. Keep in mind, however, that litigation can be costly in both time and money.

If you have any more questions, call...

• Renters’ Legal Assistance (510) 642-1755
• Attorney for Students (510) 642-5171 (Appointments)
• Berkeley Housing Inspector (510) 644-6445
• Fire Inspection Office (510) 644-6264
• Berkeley Rodent & Insect Control (510) 644-6510
• Public Health Administration (510) 644-6459

Additional Documents:

• Actual Text of Civil Code 1942
• Actual Text of Civil Code 1941.2
• Actual Text of Civil Code 1941.4
• Landlord's Rights and Responsibilities in Berkeley
• List of Complaint Departments and Phone Numbers
• Berkeley Request for Inspection
• Sample Letter of Notice to Repair

 

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