100% Habitable, 100% Of
The Time
Written by Gary
Link, Attorney at Law
http://www.teamlink.com/article3.html
Landlords
in California have the responsibility to maintain their
tenancy properties in a "habitable", "liveable", and
"tenantable" condition from the very first day of the
tenancy to very last day that the tenant vacates the
property. It makes absolutely no difference that the tenant
has not paid the rent or is even in violation of one or more
of the promises of the rental agreement; nor does it make
any difference whether the tenant is in the process of being
evicted or even if a judgment has been entered against the
tenant for the landlord to be restored to possession of the
premises. The duty of the landlord is absolute, and it runs
from the very beginning to the very end of the tenancy.
The terms
"habitability", "liveability", and "tenantability" all mean
the same thing, and are often used synonymously.
Essentially, the terms characterize how the landlord must
provide and maintain the tenancy property.
The
minimum "habitability" requirements are set forth in a
variety of California codes and regulations such as the
Civil Code, the Uniform Building Code, the Health and Safety
Code, the Fire Code, and various local ordinances. Further
guidance is offered by the judicial branch of government in
appellate decisions that have dealt with specific factual
situations. Generally, the applicable appellate decisions
operate to clarify, interpret and expand upon the
legislative requirements of the codes. Landlords should also
consult with an attorney experienced in this field of law as
to their particular knowledge of the various viewpoints and
interpretations of the local judges on "habitability"
issues.
The most
important Civil Code on "habitability" is section 1941.1. It
provides that a dwelling shall be deemed untenantable if it
substantially lacks any of the following standard
characteristics [I recommend that all property managers and
landlords at a minimum commit these items to memory]:
California Civil Code Section 1941.1: A dwelling
shall be deemed untenantable for purposes of Section 1941 if
it substantially lacks any of the following affirmative
standard characteristics or is a residential unit described
in Section 17920.3 or 17920.10 of the Health and Safety
Code: (a) Effective waterproofing and weather protection of
roof and exterior walls, including unbroken windows and
doors. (b) Plumbing or gas facilities that conformed to
applicable law in effect at the time of installation,
maintained in good working order. (c) 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. (d) Heating facilities
that conformed with applicable law at the time of
installation, maintained in good working order. (e)
Electrical lighting, with wiring and electrical equipment
that conformed with applicable law at the time of
installation, maintained in good working order. (f)
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. (g) 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. (h)
Floors, stairways, and railings maintained in good repair.
The Uniform Building Codes as well as the Health and Safety
Codes further specify with much greater detail what
additional building and "habitability" requirements exist.
These codes are too lengthy to provide more detail in this
article; however, you can obtain the Uniform Building Code
from local bookstores. If you wish to obtain a copy of the
applicable portions of the Health and Safety Code, you are
invited to contact me at my office at (916)447-8101; I will
be happy to provide you with one.
The
typical consequences of the landlord's failure to provide
and maintain the "habitability" requirements of tenancy are
that the tenant may choose to exercise the remedy of "repair
and deduct" pursuant to Civil Code Section 1942; or, the
tenant may simply refuse to pay rent which then may cause
the landlord to file a lawsuit for Unlawful Detainer with
the court. If the tenant is able to prove lack of
"habitability" the landlord will be forced to accept a
lesser amount of rent as determined by the court, have a
money judgment against the landlord for costs of suit and
when applicable, attorneys fees. The landlord may also be
ordered by the court to immediately correct the defect.
Further,
the tenant may even choose to file affirmative legal
proceedings against the landlord, the property management
company, and the individual property managers and their
staff for breach of the statutory codes, breach of contract,
breach of the express and implied warranties of
habitability, and infliction of emotional distress.
Additionally, local city or county building and health
departments could mandate that the landlord immediately
comply with the "habitability" requirements. The landlord's
or property manager's failure to act could also prevent the
landlord from being able to take tax deductions on the
investment property; and, in extreme cases may allow local
government officials to mandate that the landlord pay for
the costs of relocation of the tenant and pay for other
miscellaneous damages suffered by the tenants.
Thus, the
landlord's "rule of thumb" should always be "100% habitable,
100% of the time".
Copyright © 1996 by
GaryLink. All
Rights Reserved.
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