Habitability: A Few Key Concepts

Tenants living in rent-stabilized apartments time-and-again have informed city officials that conditions in rental housing need improvement. Sometimes the housing is substandard because it doesn’t meet the state’s ‘tenantable’ requirement which is merely fit for human habitation. More often conditions deteriorated because the landlord failed to maintain the property. Habitability touches on a number of concepts that didn’t get an airing in the Rent Stabilization Commission discussions. Let’s explain!

Landlords have a legal duty to maintain the property. According to the Landlords Rights and Responsibilities handbook, the tenant pays the rent and the landlord must “maintain the property and keep it in good repair.” And many landlords do maintain the property and respond in a timely manner to tenant complaints. They know because when a small problem goes unaddressed it can lead to a larger problem later.

Lower Standards Benefit Less-Responsible Landlords

What constitutes “good repair” is viewed differently by different landlords. Lower standards let less-responsible landlords skate on their obligation. We can group landlords into three broad categories:

Responsible landlords understand the importance of maintenance. Some take pride in ownership and the value they provide to tenants. Some see the business argument for maintenance because a dollar invested will allow the landlord to earn that dollar back many times over in higher rent and asset appreciation. These landlords tend to be professional and need no legal guardrail.

Negligent landlords allow the property to fall into disrepair. We see the signs throughout Beverly Hills: crumbling retaining walls, structural deficiencies, and outright hazardous conditions like fire code violations. These properties are characterized by obvious neglect. And that’s the outside! On the inside the telltale signs of neglect are evident: water damage, gaps in the plaster, and generally unsanitary conditions.

Finally there are landlords that maintain the property to the minimum legal standard but skimp on maintenance. This is ‘managed decline.’ Investment is effectively siphoned out of the property over time by taking as profit some portion of the rent dollar that need be spent on maintenance. This is a business model and it is all too visible in Beverly Hills: the paint begins to peel, the windows and sills deteriorate, and, because the necessary investment is deferred, building systems break down. During winter’s rains we can see which properties need a new roof for example. We call it tarp season!

The proposed local habitability standard is really addressing the latter two groups of landlords. The first group needs no law to prescribe professional operation. For the other groups the state law provides a minimum standard but nothing requires any more of them….so many don’t deliver.

The Low State Standard: Tenantable Premises

State law requires a residential landlord to provide premises fit for human habitation. That is the bare-minimum standard according to the California Civil Code for ‘tenantable’ premises.

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…. — CIV §1940

The ‘tenantable’ standard was enacted in 1872. Back then it might have been incorporated into law to prohibit a landlord from leasing a barnyard for occupancy; in the century and half since the ‘tenantable’ standard was clarified by legislature and courts to mean at a minimum heat, hot water, plumbing, electricity, lighting, weatherproofing and certain other aspects of “clean and sanitary” premises. Those requirements are enumerated in Civil Code §1941.

Code enforcement will swiftly cite a landlord for conditions that render a dwelling not tenantable and a correction will be ordered. In Beverly Hills the city relies on the tenant to report the landlord for the violation. That tends to discourage complaints and may lead to unnecessary friction between tenant and landlord.

Proposed Higher Local Standard: Habitable Premises

The Civil Code’s requirements for a tenantable dwelling won’t help tenants in most cases when the landlord has deferred maintenance. Say a tenant calls the city about worn carpet or old appliances or a tub or sink that is slow to drain; or perhaps the circuit breaker trips under everyday use because the electrical system is outmoded. There is nothing for code enforcement to enforce cite because non of those conditions violate the tenantable standard and Beverly Hills has impose no requirement for a habitable dwelling. The rent stabilization division tells tenants there is nothing they can do.

This argues for a higher standard for habitable premises and that standard can be enacted locally as part of our rent stabilization ordinance. A local habitable standard could identify the specific requirements for habitable premises — over and above the state’s bare-minimum tenantable standard — and could even mandate a replacement schedule for furnishings and fixtures.

The virtues of a local habitable standard is that it would reflect our contemporary expectations for rental housing and provide the city a means to enforce against conditions that fall short. Where housing meets the state’s bare-minimum tenantable standard but fails to meet our local habitable standard a correction can be ordered.

The Difference Between Tenantable and Habitable

The need for a local habitable standard is evidenced by the number of calls and complaints the city receives about habitability. Prior to the pandemic those contacts numbered more than six hundred annually; during the first pandemic year the number dropped to about 300. But only 1-in–10 contacts results in a referral to code enforcement. That suggests that the vast majority are habitability-related but not violations.

Renters Alliance put together data provided by the rent stabilization division to show how small a proportion of all habitability-related contacts to the city actually results in a violation…a tiny proportion!

Habitability calls and complaints comparison tables FY2018-21
Source: Rent stabilization division’s call report. Of the incoming habitability-related calls only 4% resulted in a correctable violation. Just 1-in-10 were referred and a case opened. (Illustration: Renters Alliance.)

Most habitability-related contacts from tenants are not violations at all because they don’t run afoul of the state’s bare-minimum tenantable standard. For more about how interior rental housing conditions essentially go unregulated in Beverly Hills check out our explainer: Interior Habitability: Weak Standard, Few Violations.

A local standard for habitable premises — perhaps a standard crafted to reflect tenants’ concerns about habitability — would improve housing conditions by putting a higher floor under conditions especially where landlords are negligent or simply manage decline while profiting at the expense of tenants.

Exterior Standards Suggest a Local Habitability Standard

Beverly Hills imposes a high standard for the exterior maintenance of rental property. Municipal code section 5–7–4 requires landlords to keep the premises in “sanitary and aesthetic” condition, which means exteriors walls, fences, driveways, or walkways that are not cracked, broken or deteriorated; paint that is not peeling; external elements to be free of rot; and premises that are free of junk, trash, or debris that is visible from the street. Even landscaping must be “properly maintained” (free of dead or drying greenery).

Why does Beverly Hills closely regulate the exterior appearance of rental housing while turning a blind eye toward interior conditions that affect tenants? Appearances! Tenant living conditions are not visible and so are a low priority.

We could take B.H.M.C. 5–7–4 and adapt it to interior conditions. Rented premises should must be in a “safe, clean, orderly, sanitary and aesthetic condition,” for example, which is what is required of exteriors. At a minimum interior paint should be refreshed when it is “deteriorated” or “in disrepair,” which is what is required of exterior paint. Carpets could be replaced when they are worn and “unsightly,” or when they “accumulate dirt or unsanitary material,” which is the language used by the provision that applies to landscaping and grounds. Appliances should be required to be repaired or replaced when they exhibit a “broken, defective or cracked” condition — terms that are also used to prescribe exterior maintenance.

B.H.M.C. 5–7–4 is a good model for an interior maintenance standard because it includes specific and enforceable provisions. A code enforcement officer can reference the municipal code to determine a property is not safe, clean, orderly, sanitary; or in some way is aesthetically deficient. Each is a basis for enforcement and correction.

But local ordinance says nothing about interior maintenance so there is little for code enforcement to enforce. There is no remedy when the landlord fails to maintain until conditions by definition fall below “fit for human habitation.”

The Difference Between Maintenance and Improvement

Landlords conflate these concepts when it suits them but there is a difference. The landlord has a duty to “maintain the property and keep it in good repair,” says the Landlord’s Rights and Responsibilities handbook published by Nolo Press, but as we know state law has established few maintenance requirements. Under the bare-minimum tenantable standard the landlord is not required to repaint, to replace worn carpets, or to replace aging appliances. It is not even clear if they have to repair landlord-provided appliances if they break.

Consequently maintenance as a responsibility is viewed differently by tenants and landlords. From the tenant’s perspective a landlord should not allow conditions in rental housing to decline; that is the purpose of maintenance, all-inclusive. Yet landlords tend to view repainting and the replacement of furnishings and fixtures as unwarranted improvements.

But an improvement is different from maintenance; it is a discretionary investment in the property for which the landlord can rightly expect a higher rent — and over the longer term greater asset appreciation. Often improvements are made after a tenant vacates. For example the landlord may invest in a new bathroom and kitchen and perhaps laminate flooring too. That’s what the market expects and the improvements fetch a higher rent.

What we are talking about is not those improvements but rather maintenance, scheduled and as-needed, that keeps deterioration at bay; maintenance to keep the premises in approximately the same condition as when rented. Absent such maintenance, for example, a twenty year tenancy means a tenant is living with 20-year old paint and carpeting. That is not what the tenant signed-up for at the outset. And most leases prohibit a tenant from undertaking that work because under state law it is considered “laying waste” to private property.

Proper maintenance is all about preserving value for the tenant. If the rent rises but conditions deteriorate, then less housing value is returned to the tenant. However if the landlord refuses to maintain, then the landlord derives a corresponding increase in value because every dollar saved on maintenance can go to the bottom line as profit.

A local habitability standard that establishes a clear maintenance responsibility can effectively preserve the housing value for the rent-paying tenant.

Complaint-Driven Code Enforcement vs. Proactive Inspections

Tenants continue to live with problematic housing conditions in part because our complaint-driven enforcement system makes use the housing inspectors. We report the housing problem. We follow up. And it can generate unnecessary friction with the landlord.

Consequently tenants say they often refrain from filing a complaint and are even reluctant to raise the issue with the landlord. City officials acknowledged this problem at least fifteen years ago:

Our current approach is complaint driven and the mere fact Code Enforcement staff is asked to respond to a complaint often places the tenant in an awkward and sometimes adversarial position with managers and/or property owners. — Systematic Rental Housing Inspection Program proposal (2006)

Our building officials proposed a systematic rental housing inspection program fifteen years ago precisely to shift enforcement responsibility from tenants to city inspectors.

The program being developed is comprehensive, systematic with a proactive approach largely eliminating the need for tenants to approach us in most cases…Once The Program is initiated, the rental housing stock will be routinely inspected and the quality of life for renters in the city will remain constant and in many cases, improve.

The report authors knew what they were talking about: Mahdi Aluzri and George Chavez were building officials charged with policing compliance with building codes and they saw close-up the situation with rental housing — and they proposed a fix. Unfortunately the inspection program proposal went nowhere with City Council in 2007. Both Aluzri and Chavez did go somewhere, though, as both went on to the top executive position, city manager.

When the Rent Stabilization Commission in January briefly discussed an inspection program, landlord commissioners rejected the proposal out-of-hand and the commission majority agreed. They never discussed the deficiency of the complaint-based system and they never saw the Systematic Rental Housing Inspection Program proposal. Why? The rent stabilization division didn’t mention it.

We Need a Local Habitability Standard

Renters Alliance supports a local standard for habitable premises. It is clear from the sustained volume of tenant complaints, over many years, that a very small proportion of Beverly Hills landlords don’t consistently meet even the state’s low tenantable standard. A greater proportion meet the standard but fall short of our collective expectation for rental housing conditions. The examples are many. The city itself put together a bullet list of “common habitability complaints” bullet list 2018 that the commission received but never referenced.

Unfortunately our Rent Stabilization Commission which is charged with discussing the issue did not see those examples. Nor did commissioners undertake a fulsome examination of key concepts related to habitability generally, some of which we touch on here. We hope the commission will expand its discussion beyond what the tenantable standard requires and consider what habitable should mean for residents of rental housing in Beverly Hills.

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