Repair-and-Deduct: Proceed With Caution!

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. Beware!

We know the frustration when a landlord won’t attend to a repair in a timely fashion. Days can stretch to weeks. Sometimes we’re tempted to take matters into our own hands by doing it ourselves or hiring a handyman or plumber to fix it. Believe it or not, there are landlords that delay simply to encourage the tenant to repair it.

The tenant’s justice is to make the repair and then deduct the costs of parts and labor. After all the law says so, right? We advise caution. Failure to carefully follow the law may put the tenant in jeopardy of nonpayment. That can lead to a 3-day notice and, shortly afterward, an unlawful detainer. Generally we advise tenants against withholding any part of the rent.

The landlord’s obligation to the tenant is in part laid out clearly in the legal requirements for ‘tenantable’ premises. That is, fit for human occupancy. 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.

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;
  • Floors, stairways, and railings in good repair;
  • Plumbing, gas, electrical fixtures, and wiring in good working order;
  • Hot and cold running water “furnished to appropriate fixtures”; and,
  • A locking mailbox.

Note that these affirmative standards relate to health and safety; not what we might consider comfortable. The Unabomber’s cabin might meet these tenantable requirements! It is important to recognize how low a bar that is before we would expect the landlord to go above and beyond in making a repair.

When a landlord is not willing to maintain a dwelling to even the state’s low standard, then the law offers a remedy: it’s called repair-and-deduct.

Legal Basis of Repair-and-Deduct

Civil Code § 1942(a) provides a basis for the tenant to act when the landlord won’t. However there are conditions, starting with the low bar for a tenantable dwelling as described above.

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….

Another condition is the ‘reasonable notice’ requirement. Civil Code (section 1942.b) identifies “reasonable” as 30 days for a non-emergency repair. In urgent situations (safety concerns related to electricity, lighting, gas and plumbing) ‘reasonable’ is fewer than 30 days.

Section 1942 goes on to cite yet another condition:

The tenant’s remedy [under § 1942] shall not be available if the condition was caused by the violation of Section 1929 or 1941.2.

That sends a tenant in search of clarification. Civil Code section 1929 obligates a tenant to keep her premises in order in language that dates to 1905:

The hirer of a thing must repair all deteriorations or injuries thereto occasioned by his want of ordinary care.

Forty years ago that obligation was further elaborated in Civil Code § 1941.2 to include keeping a clean house and taking reasonable precautions. Note the emphasized passage:

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.

The tenant looking for cost recovery on a repair from a court would be out of luck if the landlord can show that the tenant created or contributed to the problem.

What Does All That Mean?

In short, think carefully before deducting from the rent! The Beverly Hills Rights and Responsibilities Handbook includes some 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. (p.5, emphasis added)

Again note the conditions: 1) health and safety as it relates to the requirements of ‘tenantable,’ incluing heat, water, electrical and plumbing service, and/or insect or vermin infestation. Also hazards like loose stairs and ripped carpets constitute a necessary repair. 2) ‘reasonable’ notice to the landlord. Then 3) the suggestion to get legal advice before proceeding. Failing to make a timely rent payment invites a 3-day notice.

Other Consideration

The tenant’s duty to take care suggests that she should read the lease that created the tenancy. Certain clauses are intended to indemnify the landlord against liability for a problem to which the tenant may have contributed. For a clause could prohibit a tenant from flushing in the toilet a sanitary napkin or other debris. That may put the tenant on the hook for the cost of the repair.

The standard Apartment Association of Greater Los Angeles lease template is often used by landlords. Leases are sometimes not read thoroughly by the prospective tenant, who would then not catch this clause that defines the landlord’s responsibility to the tenant quite narrowly:

Except as provided by law, Owner shall not be required to make any improvements, replacements or repairs to the Premises and, if allowed by law, any such work shall be at Renter’s expense.

We know of landlords who have cited that very clause to decline to repair even the appliances the landlord himself provided. That expense falls to the tenant. Expecting to repair-and-deduct an appliance repair in such a case invites a run-in with the landlord. (Until we can incorporate into our rent stabilization ordinance a provision that invalidates such a clause, it will continue hamstring some tenants.)

I Want to Deduct My Repair Expense: What Happens Next?

The tenant who has duly reported the problem to the landlord (and to code enforcement) but found the landlord not responsive may be ready to deduct the cost of the repair from the rent. Can she be evicted?

On first glance Civil Code § 1942.4 would seem to have her covered if she has satisfied the conditions enumerated herein (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.

The practical challenge to the tenant is that the landlord can move to evict based on the partial rent payment and faces no penalty. His 3-day pay or quit notice will pressure the tenant to pay up. Moreover, time is on his side.

Should the tenant choose to face the landlord in court, Civil Code § 1942.3 would provide some cover (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....

The “rebuttable presumption” would tilt the table to favor the tenant in the unlawful detainer proceeding. But the relevant section of the Civil Code extends the time period for landlord action on the repair from 35 days (in § 1942.4) to 60 days in § 1942.3. That is almost twice as long as was reasonable for notice for the landlord to make the repair.

This is why it is recommended to have an attorney’s advice before proceeding with repair-and-deduct!

The Escape Hatch

There are not many reasons available to the tenant to lawfully break a lease, but the landlord’s failure to maintain a tenantable dwelling is one of them. The relevant passage from Civil Code § 1932:

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.

This provision was added to the Civil Code in 1905 too! Subsequently the Civil Code § 1942(a) does clarify 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.

What About Retaliation for Making a Complaint?

Can the landlord retaliate for a successful repair-and-deduct claim? Again Civil Code § 1942.5 would seem to be on the tenant’s side:

If the lessor retaliates against the lessee because of the exercise by the lessee of his or her rights under this chapter or because of his complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of his or her rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following: [...] has made an oral complaint to the lessor regarding tenantability.... [or] after the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability.

However the tenant’s incomplete rent payment would seem to obviate this tack. The presumption of retaliation created by § 1942.5 goes out the window if the landlord has the tenant in court for nonpayment.

Are There Alternatives to Deduct-and-Withhold?

Small claims court is an option. The limit is $10,000 which is sufficient to cover the cost of most any repair. Small Claims Court offers two advantages: the tenant enters the process as a plaintiff (not a defendant); and she will not face a lawyered-up landlord. Attorneys are not allowed. Again there is a ‘however:’ the tenant needs to be able to satisfy the conditions in state law and any lease clauses that may invalidate her claim. Plus, the landlord can file a counterclaim, which would also put the tenant on the defensive in small claims court.

Turn to the city if the repair involves health or welfare. Beverly Hills code enforcement is responsive to complaints about infestation or water damage that compromises the integrity of the premises. At that point the complaint should not drag on to the point of repair-and-deduct or rent withholding. (Read more about filing a complaint.)

Pay out of pocket and swallow the loss. A simple water leak, clogged toilet, non-lockable mailbox or leaky window will not garner that attention from the city as they are relatively trivial defects. In such cases a tenant is better off working the landlord. If necessary, pay the handyman out-of-pocket and decide later whether it is worth recovering.

Try the city’s Home Handyworker service. Home handyworker provides federally-funded apartment repairs if the tenant income-qualifies. And it does require the landlord’s permission. But at least it relieves the landlord of the cost of the repair.

Take advantage of the rent stabilization program’s free mediation. 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. At the very least the RSO office can clarify if the problem needs faster action through the office.

Almost any alternative is better than getting embroiled in a rent dispute over a relatively minor repair. Tenants have been advocating for a higher local habitability standard in Beverly Hills to ensure that landlords understand their obligation to maintain their own investment.