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100% Habitable, 100% Of The Time

Written by Gary Link, Attorney at Law

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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