Borna Houman Law represents landlords and property owners, not tenants, when a habitability claim is raised against them. If a tenant has stopped paying rent and points to repairs, or has answered your unlawful detainer with a habitability defense, this page explains what the law requires of you and how the claim is defeated or limited.
Key Takeaway: A habitability defense in a California eviction succeeds only if the tenant proves a substantial breach affecting health and safety. Under Code of Civil Procedure section 1174.2, the court then sets a reduced rent, and the tenant must pay it within five days or the landlord receives judgment for possession.
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A California landlord must put a residential unit in a condition fit for occupation and repair later defects that make it untenantable, under Civil Code section 1941. Civil Code section 1941.1 lists the standards: effective waterproofing, working plumbing and gas, hot and cold running water, heating, safe electrical lighting and wiring, grounds free of garbage, rodents and vermin, adequate trash receptacles, and floors, stairways and railings in good repair. The duty was recognized in Green v. Superior Court (1974) 10 Cal.3d 616, and it cannot be waived in the lease.
A landlord has no duty to repair a condition the tenant caused. Civil Code section 1941.2 relieves the owner where the tenant’s own failure to keep the unit clean, dispose of garbage, use fixtures properly, or avoid damaging the premises contributed substantially to the defect or interfered substantially with the repair.
Proof decides this issue. Move-in inspection reports, dated photographs, pest control and maintenance logs, and the written repair requests showing when you were first told are the owner’s evidence.
A tenant may repair and deduct only within the limits of Civil Code section 1942. The tenant must first give notice and allow a reasonable time to repair, which the statute presumes is 30 days. The deduction cannot exceed one month’s rent, the remedy is available no more than twice in any 12-month period, and it is unavailable if the tenant caused the condition.
A tenant who simply stops paying takes on the burden of proving a substantial breach at trial. Most withheld-rent cases are decided on the repair record, which is why the owner’s file matters more than the tenant’s complaint.
Under Code of Civil Procedure section 1174.2, the tenant must prove a substantial breach, meaning a failure to meet building and housing code standards that materially affects health and safety. If the court finds one, it determines the reasonable rental value of the unit in its condition, and the tenant keeps possession only by paying that reduced rent within the time the court sets, which cannot exceed five days.
If the tenant does not pay, the landlord receives judgment for possession. If the court finds no substantial breach, judgment goes to the landlord. The court may also order repairs and keep jurisdiction until they are made. Our guide to the habitability defense in a California unlawful detainer walks through the hearing, and our unlawful detainer attorney Los Angeles page covers the case from notice to lockout.
An unabated government citation is the most dangerous fact in a habitability case. Under Civil Code section 1942.4, a landlord may not demand or collect rent, raise rent, or serve a three-day notice to pay rent or quit when a housing inspector has given written notice of a violation, the condition has gone unrepaired for 35 days without good cause, and the tenant did not cause it.
A landlord who violates section 1942.4 is liable for the tenant’s actual damages, special damages of $100 to $5,000, and attorney fees. Calendar every inspection notice the day it arrives.
Civil Code section 1942.5 bars a landlord from evicting, raising rent, or reducing services in retaliation within 180 days after a tenant who is current on rent makes a habitability complaint to the landlord or a public agency. The statute does not stop an owner from recovering possession for a lawful reason stated in good faith in the notice, but the owner must be able to prove that reason at trial.
Serve notices for documented grounds, and keep the repair record separate from the eviction decision.
In our experience representing Los Angeles County owners, the cases that go wrong are the ones where the notice was served before anyone checked for an open citation.
Borna Houman, California State Bar No. 352339, represents landlords and property owners throughout Los Angeles County from 2530 Wilshire Blvd in Santa Monica. See our Los Angeles landlord attorney page for the full scope of owner-side work.
Call (888) 42-BORNA to schedule a confidential consultation.
This page is general information about California law for landlords and property owners. It is not legal advice, and no outcome is guaranteed.
Own or manage property and need counsel on a real estate matter? Contact Borna Houman Law today. Reach out by phone, by email, or at our Santa Monica office.
2530 Wilshire Boulevard,
3rd Floor, Santa Monica, CA 90403
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