Implied Warranty of Habitability

nancy-l-print-image-choice-1If you are either a landlord providing rental space or a tenant renting space from another person or company, you need to know your rights if the property is not habitable, or needs serious work to make it habitable.  Here are some common issues that come up in the landlord/tenant areas of my practice.

I. What Is It?

In every dwelling that is rented out by an owner (“Landlord”) to a non-owner (“Tenant”), the law requires that the living space be habitable by people. That means the Landlord must provide services such as heat, electricity, running hot and cold water, and other items in good repair (e.g. no broken windows, torn carpet that could cause tripping, etc.).

II. Landlord’s Duty To Repair

If the dwelling or premises is not fit for human living, the Landlord has a legal duty to repair or replace the unfit item within a reasonable time of being made aware of the uninhabitable condition that is making the premises unsafe or uninhabitable (e.g. repair/replace worn carpeting, a defective heater etc.).

III. Failure Of Landlord To Repair

If Landlord fails to repair an item, the Tenant may request a repair, or repair him/herself, or may pay a third party to repair and pay for it.

  1. Tenant Remedies
  2. Fix & Deduct from the rent the cost of repairs permitted (based on “reduced services”). A tenant may fix a repair himself, or pay for a third party to repair and then deduct the cost of repairs from his rent (up to 1 months’ rent, and tenant can do this up to 2 times in a 12-month period).
  3. Report The Landlord to the public health department if the item is a health or safety issue, such as sewage backing up, no heat or electricity, bed bugs, mold or rodents, or to the building permit department (illegal units, other unsafe building issues).  They will cite owner, make him/her pay for repairs, etc. In extreme cases where Landlord refuses to fix items, they may even be jailed.  Think Leona Helmsley.
  4. Take Landlord To Court.  If services are reduced so much such that 2 months’ rent is inadequate to compensate the tenant in a 12-month period, the tenant can take the Landlord to small claims court. Small claims courts can award up to $10,000 to the Plaintiff.
  5. Go To Rent Control Board. In rent-controlled areas, where other remedies do not work, the rent control board is a good option for tenants.

Client Stories

  1. Client’s apartment carpet was 4-5 years old when he moved in.  Tenant has been there for 10 years. Landlord & his attorney refused to replace carpet, and refused to let Tenant replace it (cost splitting or not). Tenant took to rent control board, as he had expenses every few months to clean it. (I represented the Tenant at the hearing under a “reduced services” cause of action).
  2. Tenant’s carpet was to be replaced prior to his moving in, which wasn’t done. As the lease stipulated that Tenant could break the lease if the warranty of habitability was breached, with my counsel, Tenant broke the lease, moved out, and sued Landlord.  Tenant prevailed in small claims in court and won a $3,700+ judgment toward reduced rent, based on damaged carpeting causing lack of habitability.
  3. A Landlord can be forced to give back rent for an illegal unit, or to not be allowed to collect it. Here, Landlord promised Tenant he would carve out a 3rd bedroom from a large room, which wasn’t done.  Illegal immigrants were living in the apartment’s garage with hot plates (no stove or heat), and building was illegally converted to 7 units from 3. A leaking toilet in the unit above was dripping excrement into my Client’s bedroom, and mold was coming through the paint in the bathroom. Based on pictures and Tenant’s testimony, the Judge allowed my client to not pay rent for the 6 months they were there, as they were living in such deplorable conditions.

Need help with a landlord or tenant legal matter?  Nancy Lewellen can help with contracts, commercial and residential leases, and much more.  Contact her today at or 415-399-0993 for a free 15-minute consultation.