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Rent Withholding Remedy
A tenant may have another option for getting repairs made—the “rent withholding” remedy.
By law, a tenant is allowed to withhold (stop paying) some or all of the rent if the landlord does not fix serious defects that violate the implied warranty of habitability.165 (see discussion of the implied warranty of habitability.) In order for the tenant to withhold rent, the defects or repairs that are needed must be more serious than would justify use of the repair and deduct and abandonment remedies. The defects must be substantial—they must be serious ones that threaten the tenant’s health or safety.166
The defects that were serious enough to justify withholding rent in Green v. Superior Court167 are listed below as examples:
• Collapse and nonrepair of the bathroom ceiling.
• Continued presence of rats, mice, and cockroaches.
• Lack of any heat in four of the apartment’s rooms.
• Plumbing blockages.
• Exposed and faulty wiring.
• An illegally installed and dangerous stove.
In the Green case, all of these defects were present, and there also were many violations of the local housing and building codes. In other situations, the defects that would justify rent withholding may be different, but the defects would still have to be serious ones that threaten the tenant’s health or safety.
In order to prove a violation of the implied warranty of habitability, the tenant will need evidence of the defects that require repair. In the event of a court action, it is helpful to have photographs or videos, witnesses, and copies of letters informing the landlord of the problem.
Before the tenant withholds rent, it is a good idea to check with a legal aid organization, lawyer, housing clinic, or tenant program to help determine if rent withholding is the appropriate remedy.
Risks: The defects may not be serious enough to threaten the tenant’s health or safety. If the tenant withholds rent, the landlord may give the tenant an eviction notice (a three-day notice
to pay the rent or leave). if the tenant refuses to pay, the landlord will probably go to court to evict the tenant. In the court action, the tenant will have to prove that the landlord violated the implied warranty of habitability.170
If the tenant wins the case, the landlord will be ordered to make the repairs, and the tenant will be ordered to pay a reasonable rent. The rent ordinarily must be paid five days or less from the date of the court’s judgment. If the tenant wins, but doesn’t pay the amount of rent ordered when it is due, the judge will enter a judgment for the landlord, and the tenant probably will be evicted. If the tenant loses, he or she will have to pay the rent, probably will be evicted, and may be ordered to pay the landlord’s attorney’s fees.
There is another risk of using rent withholding: if the tenant doesn’t have a lease, the landlord may ignore the tenant’s notice of defective conditions and seek to remove the tenant by giving him or her a 30-day or 60-day notice to move. this may amount to a “retaliatory eviction”.171 The law prohibits retaliatory evictions, with some limitations.172
165 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704].
166 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, pages 190-191 (NOLO Press 2009).
167 Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704]. See Hyatt v. Tedesco (2002) 96 Cal.App.4th Supp. 62
170 Depending on the facts, the tenant may be entitled to a rebuttable presumption that the landlord has breached the implied warranty of habitability. (Civil Code Section 1942.3.) This presumption affects the burden of producing evidence.
171 Moskovitz, California Eviction Defense Manual, Section 16.19 (Cal. Cont. Ed. Bar 2008).
172 Civil Code Section 1942.5(a).
You might also want to read:
- Tenants Guide to the Abandonment Remedy in Repairs Instead of using the repair and deduct remedy, a tenant can abandon (move out of) a defective rental unit. This remedy is called the “abandonment” remedy. A tenant might use......
- Tenants Guide to basic requirements in Rent Withholding Remedy The basic requirements and steps for using the rent withholding remedy are: 1. The defects or the repairs that are needed must threaten the tenant’s health or safety.168 • The......
- Tenants Guide to Repair And Deduct Remedy in Repairs The “repair and deduct” remedy allows a tenant to deduct money from the rent, up to the amount of one month’s rent, to pay for repair of defects in the......
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This article is really useful and provides great information about repairs and rent witholding laws. I bought a 2 unit rental property in Oregon and I live in California. I was thinking of purchasing a home warranty because my property is in Oregon. Does anyone have any experience with purchasing a home warranty like those provided by 24-7 Home Warranty ? I’d really appreciate any recommendations or personal experiences with home warranties. Thanks.