Repair-and-Deduct at Your Peril!

Tenants are allowed to deduct from the rent the cost of a repair when the landlord won’t make it. Colloquially it’s known as ‘repair-and-deduct’ and the logic is straightforward: the rental agreement says you pay your rent and the landlord maintains the premises. But like so many tenant protections, this one too comes with practical limits. Understand that failing to follow the law carefully may put a tenant in court fighting an unlawful detainer. That’s why I advise tenants against withholding any part of the rent. If you feel that you must deduct, then at least read more before you do.

The city’s Rights and Responsibilities Handbook (provided to every tenant upon signing a lease) includes useful information about deducting for repairs.

Once during each twelve (12) month period, a Tenant may deduct an amount up to the total monthly rent for repairs of defects in the unit (California Civil Code Section 1942). To qualify for this remedy, the defects must be substandard conditions affecting the Tenant’s health and safety and substantially breach the implied warranty of habitability. Additionally, the Tenant must not have caused the defects requiring the repairs, must have informed the Landlord of the need for repairs, and must have already given the Landlord a reasonable period of time to make the repairs. Because this remedy can lead to an eviction for failure to pay rent, tenants are advised to consult with an attorney prior to deducting any amount from the required rent. – Rights and Responsibilities Handbook p.5 (emphasis added)

Note those conditions. First there is the health and safety standard. The repair has to relate to basic standards of a ‘tenantable’ dwelling: heat, water, electrical and plumbing service, and/or insect or vermin infestation. Clear dangers like loose stairs, ripped carpets, etc. would qualify too. But beyond that a repair is not considered a health and safety issue. Next there is a condition for required ‘reasonable’ notice to the landlord. Then the bit about the attorney.

In sum, a tenant who does not make a timely payment of rent invites a landlord’s challenge where she’s on defense concerning perhaps the most clear area of the law: non-payment. So it is best to get good legal advice before deducting for a repair. The tenant who is still contemplating repair-and-deduct approach then please read on!

The Legal Requirements for ‘Tenantable’ Premises

The state statutes are clear about requiring a landlord to maintain his premises. Civil Code § 1941 reads:

The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine.[1]

Civil Code §1941.1 goes on to enumerate what the law calls “affirmative standard characteristics” of a ‘tenantable’ dwelling:

  • Watertight windows and walls;
  • Premises free of debris, filth, rubbish, garbage, rodents, and vermin;
  • ‘Good repair’ of floors, stairways, and railings;
  • ‘Good working order’ of plumbing, gas, electrical fixtures, and wiring (it need meet only codes “applicable law at the time of installation”);
  • Hot and cold running water “furnished to appropriate fixtures”; and,
  • A locking mailbox.

Note that these affirmative standards mostly relate to health and safety and not what we might consider ‘habitable’ (as in comfort). The Unabomber’s cabin might meet the law’s tenantable standards! However worn is the paint, carpets, or appliances, none will meet the threshold.

Repair-and-Deduct: Legal Basis and Caveats

When a landlord is not willing to maintain a dwelling to even the law’s low standards, then there is remedy: repair-and-deduct.

If within a reasonable time after written or oral notice to the landlord or his agent…of dilapidations rendering the premises untenantable which the landlord ought to repair [and] the landlord neglects to do so, the tenant may repair the same himself where the cost of such repairs does not require an expenditure more than one month’s rent of the premises and deduct the expenses of such repairs from the rent when due…. – Civil Code § 1942(a)

Thus the perception that a tenant can deduct from the rent the cost of a repair. “If the landlord won’t do it, I’ll do it myself!” That’s understandable. But the law enumerates conditions that the tenant must meet to prevail. For example the ‘reasonable notice’ to the landlord requirement. Civil Code secton 1942(b) identifies it as 30 days. (However circumstances such as a deficiency with an in-unit gas heater or stove may demand immediate action. In such situations ‘reasonable’ may be less than 30 days. (Would a lack of hot water suggest a shorter ‘reasonable’ period? I don’t know.)

Section 1942 goes on to include an important provision: “The tenant’s remedy [under § 1942] shall not be available if the condition was caused by the violation of Section 1929 or 1941.2.” The mysteries of the Civil Code! Doing my due diligence, I see that § 1929 obligates the tenant to take due care to keep her premises in order. To wit, “The hirer of a thing must repair all deteriorations or injuries thereto occasioned by his want of ordinary care.” That language dates to 1905!

In 1979 the provision was elaborated to include keeping a clean house and taking reasonable precautions with the premises:

No duty on the part of the landlord to repair a dilapidation shall arise under Section 1941 or 1942 if the tenant is in substantial violation of any of the following affirmative obligations, provided the tenant’s violation contributes substantially to the existence of the dilapidation or interferes substantially with the landlord’s obligation under Section 1941 to effect the necessary repairs: (1) To keep that part of the premises which he occupies and uses clean and sanitary as the condition of the premises permits. (2) To dispose from his dwelling unit of all rubbish, garbage and other waste, in a clean and sanitary manner. (3) To properly use and operate all electrical, gas and plumbing fixtures and keep them as clean and sanitary as their condition permits. (4) Not to permit any person on the premises, with his permission, to willfully or wantonly destroy, deface, damage, impair or remove any part of the structure or dwelling unit or the facilities, equipment, or appurtenances thereto, nor himself do any such thing. (5) To occupy the premises as his abode, utilizing portions thereof for living, sleeping, cooking or dining purposes only which were respectively designed or intended to be used for such occupancies. – Civil Code § 1941.2 (emphasis added)

Note the provision at the top: “No duty on the part of the landlord to repair a dilapidation shall arise if the tenant is in substantial violation….” That would be a barrier to cost recovery if the tenant had created or contributed to the problem (so far as the landlord can convince a judge).

Moreover it pays to read the lease. Lease clauses or ‘house rules’ may be explicit about indemnifying the landlord for a tenant-caused problem. For example, an agreement’s terms could prohibit a tenant from flushing a sanitary napkin or other debris. In that case the tenant can be on the hook for the cost of the repair. Now, I’m not sure if such a clause would preempt the deduct-and-repair remedy entirely, but it allows the landlord to argue that the tenant was informed and is in violation.

Be Careful with Tenant-Maintenance Agreements

There is a provision in the Civil Code that would allow an agreement where the tenant assumes the obligation for repairs. The tenant and landlord may mutually agree to assign upkeep to the tenant in exchange for a reduced rent, say. This is the section that essentially offloads the landlord’s maintenance responsibility onto the tenant:

Any agreement by a lessee of a dwelling waiving or modifying his rights under Section 1941 or 1942 shall be void as contrary to public policy with respect to any condition which renders the premises untenantable, except that the lessor and the lessee may agree that the lessee shall undertake to improve, repair or maintain all or stipulated portions of the dwelling as part of the consideration for rental. – Civil Code § 1942.1

My advice to the tenant: don’t agree to it. Landlord associations recommend against it for good reason: a clause that waves the landlord’s responsibility for repairs would ultimately be adjudicated by a judge with no certain outcome for either party. Besides, landlords should know that the law requires that every unit meet the tenantable standards. What if the tenant shirks her obligation? The landlord is ultimately responsible.

Tenants and landlords will do better if each understands his respective obligations. If a tenant needs the reduced rent, then get that reduced-rent agreement in writing. Alternately make reduced rent part of an employment side-agreement; the tenant would then be protected by fair employment laws too. In my view the tenant and landlord are better served if the tenant simply collects a wage for work done and then pays the full rent.

One more thought on rent-for-upkeep agreements. From time to time tenants will allude to a tacit agreement wherein the landlord keeps the rent low and the tenant doesn’t complain about deferred maintenance. But there is a reason that section 1942.1 (referenced above) bars any tenant from consenting to substandard conditions: it is in her interest not to bargain away tenantable conditions in exchange for rent. Should maintenance be deferred, the conditions will continue to deteriorate and at some point the tenant could find herself in a substandard (or uninhabitable) dwelling. Then both the landlord and tenant have a problem.

OK. What if the tenant has fulfilled her obligations under the law? Should she then repair-and-deduct? Read on!

Unlawful Detainer Looms

Let’s say the tenant has duly reported the problem to the landlord and to code enforcement. The landlord was not responsive and the tenant is ready to deduct the cost of the repair from the rent. What happens next? Can she be evicted? The law would seem to have her covered (excerpted for brevity):

A landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit…if all of the following conditions exist prior to the landlord’s demand or notice: (1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard; (2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions; (3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice; (4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929. — Civil Code § 1942.4 (emphasis added)

The practical challenge is that the landlord faces no real penalty for moving to evict based on partial non-payment. And time is on his side. He issues a 3-day notice to pay or quit (even though it may be unlawful) and that pressures the tenant to pay up. The tenant’s only remedy is to meet the landlord in court.

(By the way, an attorney or industry association would advise the landlord not to take it to court. Better to work out small disputes in lieu of an unlawful detainer. It’s better business. And for the tenant, it’s always better to avoid court because some screening services will ID a tenant as a litigant should the court record not be sealed.)

Should the landlord insist on moving to evict, the law again provides the tenant some cover. Here’s the relevant code (excerpted for brevity):

In any unlawful detainer action by the landlord to recover possession from a tenant, a rebuttable presumption affecting the burden of producing evidence that the landlord has breached the habitability requirements in Section 1941 is created if all of the following conditions exist: (1) The dwelling substantially lacks any of the affirmative standard characteristics [or] is deemed and declared substandard or contains lead hazards; (2) A public officer or employee who is responsible for the enforcement of any housing law has notified the landlord, or an agent of the landlord, in a written notice…to abate the nuisance or repair the substandard or unsafe conditions; (3) The conditions have existed and have not been abated 60 days beyond the date of issuance of the notice specified in paragraph (2) and the delay is without good cause; (4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2. – Civil Code § 1942.3 (emphasis added)

Note the period for landlord response has extended from 35 days in section 1942.4 to 60 days (definitely longer than ‘reasonable’ notice). Moreover the tenant must meet meet all of those conditions to enjoy the presumption that the landlord has breached the agreement. But she also has to prove them (a subsection cautions, “The presumption…does not arise unless all of the conditions set forth therein are proven…”).

The upshot is that the rent dispute that moves first to a 3-day notice and then ultimately to court puts the tenant most at risk. Why? Because courts prioritize unlawful detainers and the landlord is the plaintiff; the tenant is on her back foot going into the courtroom. (Read more about that process.) Here the odds of prevailing are longer for the tenant. And all over a plumbing bill?

Alternatively, the law offers a more practical option: the tenant may break the rental agreement (even a lease) if the landlord does not address the problem:

The hirer of a thing may terminate the hiring before the end of the term agreed upon: 1. When the letter does not, within a reasonable time after request, fulfill his obligations, if any, as to placing and securing the hirer in the quiet possession of the thing hired, or putting it into good condition, or repairing; or, 2. When the greater part of the thing hired, or that part which was and which the letter had at the time of the hiring reason to believe was the material inducement to the hirer to enter into the contract, perishes from any other cause than the want of ordinary care of the hirer. – Civil Code § 1932

The provision that the tenant can abrogate the agreement was adopted in 1905. Later the Civil Code clarified it further:

… the tenant may vacate the premises, in which case the tenant shall be discharged from further payment of rent, or performance of other conditions as of the date of vacating the premises. – Civil Code § 1942(a)

Clearly that’s the easier path to a tenantable dwelling (not to mention a better landlord). Should the tenant still want to press on…

Fighting Unlawful Detainer

When a tenant fights an unlawful detainer, she has the burden on showing she should be allowed to stay in the unit. She’s already on the defensive and her affirmative defense is that the landlord failed to maintain the premises to tenantable standards. She must convince the judge. If she is successful, the Code of Civil Procedure section 1174.2 describes some possible remedies:

In an unlawful detainer proceeding involving residential premises after default in payment of rent and in which the tenant has raised as an affirmative defense a breach of the landlord’s obligations under Section 1941 of the Civil Code or of any warranty of habitability, the court shall determine whether a substantial breach of these obligations has occurred. If the court finds that a substantial breach has occurred, the court (1) shall determine the reasonable rental value of the premises in its untenantable state to the date of trial, (2) shall deny possession to the landlord and adjudge the tenant to be the prevailing party, conditioned upon the payment by the tenant of the rent that has accrued…, (3) may order the landlord to make repairs…, (4) shall order that the monthly rent be limited to the reasonable rental value of the premises…until repairs are completed, and (5) … shall award the tenant costs and attorneys’ fees if provided by, and pursuant to, any statute or the contract of the parties…. – Code of Civil Procedure 1174.2

Note the ‘substantial’ qualifier. If the breach is not determined to be substantial, or if the tenant has not waited the requisite period for a fix, the judge can find for the landlord. At that point there is substantial downside for the tenant: loss of the apartment and attorney’s fees. The relevant code section:

(b) If the court determines that there has been no substantial breach of Section 1941 of the Civil Code or of any warranty of habitability by the landlord…then judgment shall be entered in favor of the landlord, and the landlord shall be the prevailing party for the purposes of awarding costs or attorneys’ fees pursuant to any statute or the contract of the parties. – Civil Code §1174.2(b) (emphasis added)

Nolo’s helpful Landlord’s Law Book: Rights and Responsibilities explains that in addition to the above-mentioned adverse judgment there are other possible outcomes. The judge may rule that the tenant was right to deduct and deducted the proper amount. The tenant may remain in the property and collect attorney fees and court costs. Or the judge may rule that the tenant was right to deduct but deducted too much. Here the tenant can stay and recover her attorney’s fees and some portion of the repair cost, but pay back the landlord for the unwarranted portion of the deduction.

Again, when a judge is ruling there is uncertainty for both parties. The tenant may prevail on the seriousness of her complaint, while the landlord’s attorney will search for any excuse to undercut the tenant. Perhaps there is the time the tenant could not accommodate his handyman; to the judge the landlord will say, “The tenant denied me entry.” Or he could argue that the repair could have been done more inexpensively (or more broadly that the rent withheld was disproportionate relative to the problem.

The bottom line: a tenant defending her repair-and-deduct claim in an unlawful detainer is at risk of losing her apartment. She should also be mindful that the court sees many egregious situations foisted onto profoundly disadvantaged tenants. How seriously will the judge take her claim?

What About Retaliation for Making a Complaint?

Let’s say the tenant is successful in her repair-and-deduct claim. Or she’s withheld some part of the rent because of the problem. She’s told she can stay in her apartment but now worries that the landlord has other plans for her. What about retaliation? Again the law would seem to be on the tenant’s side:

Retaliation: Landlord must not terminate a lease, increase rent, decrease services, cause a lessee to quit involuntarily, or bring an action to recover possession to a tenant who has filed an official complaint to a Government Authority, been involved in a tenant’s organization, or exercised a legal right. Courts will assume “retaliation” by landlord if negative action is taken on the tenant within 180 days (six months) after any of the prior tenant actions. (Civ. Code §§ 1942.5) It will also be considered retaliation if the landlord acts negatively within six months after …. Using the repair and deduct remedy, or telling the landlord that the tenant will use the repair and deduct remedy. – Civil Code § 1942.5

By the way, that 180-day clock starts ticking at the last of any of the steps from complaint up to and including the final court judgment. Each step in the process resets the clock to put a brake on the landlord’s attempt to recover possession of the apartment.

However it’s on the tenant to prove the fact of retaliation whether as an affirmative defense against the unlawful detainer or as a separate civil action.

What Are the Alternatives to Deduct-and-Withhold?

When it comes to recovering the cost of a repair that the law says the landlord should have made, Small Claims Court is an option. The limit is $10,000 which should be sufficient to cover any repair, of course, and even the maximum of one month’s rent if it is withheld by the tenant. Small claims offers two advantages: the process as a plaintiff and not a defendant; and she need not face a lawyered-up landlord. Professional representation is now allowed.

Second, is to lean on the city’s process when the landlord’s breach is a serious threat to health and welfare. Take rodent infestation for example. My experience is that Beverly Hills code enforcement is quite responsive on such complaints. No serious health complaint should not drag on to the point of repair-and-deduct or withholding any rent. (Read more about filing a complaint.)

A problem that implicates the tenantable standards (like a water leak) will not garner the same response from the city, however. Likewise a clogged toilet, non-lockable mailbox, or a leaky window; these are trivial defects. In such cases a tenant is better off paying for a handyman out-of-pocket.

One exception does come to mind: changing the door locks in the event of a domestic complaint. Here a tenant is generally precluded from changing the locks and must rely on the landlord to act in her safety interests. The law is specific about the landlord’s obligation. I will be interested to hear from any tenant who filed a domestic violence complaint but did not get service from the landlord. Please contact me.

Third, be aware that some repair issues may be addressed by the city’s ‘home handyworker’ service. Read the city’s flyer to learn about income qualification. Then contact program representative Angelica Generoso at 310–755–8838 ( She told me that the service requires the landlord’s permission. If you qualify but your landlord does object, then ask James Latta in Community Services to pick up the phone and call the landlord. Reach Jim at 310–285–2535 ( Have you used the city’s home handyworker service? Let me know what it did for you!

Fourth, the city’s new rent stabilization program offers free mediation services. Maybe with the city looking over your shoulder the landlord may be more amenable to compromise. Contact the office at (310)285-1031 to learn more.

Finally, a tenant can always bring a civil action to recover from the landlord the cost of the repair, or a financial remedy for premises that have not been habitable for some time. In such cases the judge will likely approach it rationally by rebating to the tenant a portion of the rent that reflects the extent of the premises that was affected (plus attorney’s fees and additional monetary damages).

Arguably any of these alternatives are better than getting embroiled over a rent dispute for a relatively small repair. In my limited experience I have found that tenants are unaware of the low standard for tenantability and consequently may have unrealistic expectations about the landlord’s obligations – and the law’s remedy for a poorly-maintained dwelling. (That’s why tenants are asking for local habitability standards!)

In conclusion, the tenant who would repair-and-deduct or withhold the rent entirely should recognize the distinction between principle, objectives, and remedy under the law. The principle is clear: the landlord is obligated to maintain his premises to the minimum standards of the law. The tenant’s objective is getting the problem fixed by whatever means and being made whole. And the remedy is the recovery of some or all of the cost of a repair or compensation for the landlord’s breach. I caution any tenant, Don’t press the first to the exclusion of the second and third.

  1. The fit-for-habitation provision was added to state law in 1873! Hence the spelling out of ‘nineteen hundred and twenty-nine.’ ↩

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