Repair-and-Deduct: The Law Allows it But 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.

Failing to carefully follow the law may put the tenant in jeopardy because nonpayment can lead to a 3-day notice and shortly afterward 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.

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 for enabling a deduction unless it is a safety issue and the landlord is not responsive.

Repair-and-Deduct: Legal Basis and Caveats

When a landlord is not willing to maintain a dwelling to even the state’s low standards then the law offers a 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 at tenant’s notion: If the landlord won’t do it, I’ll do it myself. That’s understandable but the law also enumerates conditions. One example is the ‘reasonable notice’ requirement which Civil Code (section 1942.b) identifies as 30 days. Now some circumstances like a deficiency with a gas heater or stove demands immediate action; in such situations ‘reasonable’ may be less than 30 days.

Section 1942 goes on to include a  provision that will send a tenant elsewhere in search of clarification. “The tenant’s remedy [under § 1942] shall not be available if the condition was caused by the violation of Section 1929 or 1941.2.”  Section 1929 obligates the tenant to keep her premises in order: “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 that section 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 the tenant’s cost recovery if the tenant had created or contributed to the problem.

Moreover every tenant should read her lease. Certain clauses or ‘house rules’ may be explicit about indemnifying the landlord for a tenant-caused problem too. 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.

Tenant-Maintenance Agreements: Be Careful!

There is a provision in the Civil Code that allows an agreement wherein the tenant can assume the obligation for repairs in exchange, say, for a reduced rent. This is the relevant section:

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

Don’t agree to that. Landlord associations too recommend against it for good reason: any clause that waves the landlord’s responsibility for repairs could put a dispute before a judge with no certain outcome for either party. Besides, what if the tenant shirks her obligation? The landlord is ultimately responsible anyway, and why should the tenant complicate the tenancy?

Tenants and landlords will do better if each understands their respective obligations. If a tenant needs the reduced rent then get that commitment as part of an employment side-agreement. That way the tenant is protected by fair employment law too. This way 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 there is some tacit agreement that the landlord keeps the rent low if 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! So it is best not to bargain away that minimum protection for what may be a lower rent. Deferred maintenance means deterioriating conditions and eventually substandard or uninhabitable dwellings. Then both the landlord and tenant have a problem.

OK. Let’s say the tenant has fulfilled her obligations under the law. Should she then repair-and-deduct?

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 here 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)

However the practical challenge is that the landlord faces no real penalty for moving to evict based on the partial non-payment. Time is on his side: he will issue a 3-day notice to pay or quit in order to pressure the tenant to pay up. At the same time, the stress is on the tenant’s side: she has to prepare to meet the landlord in court with no guaranteed favorable judgment.

Should the tenant face the landlord in court the law again provides 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: (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 been extended in this section from 35 days (section 1942.4) to 60 days, which is almost twice as long as the ‘reasonable’ notice period. Moreover the tenant must meet meet all of those conditions to enjoy the protection of the section.

A second alternative is that the law offers the tenant a more practical option: escaping a bad landlord. The tenant may break the rental agreement and even a lease if the landlord does not address the problem. The relevant section:

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 too! 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)

Should the tenant still want to press on she can fight.

The 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. And if she is successful the Code of Civil Procedure (section 1174.2) describes 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: iff the breach is not determined to be substantial, or if the tenant has not waited the requisite period for the landlord’s fix, then the judge can find for the landlord and there is substantial downside for the tenant: the loss of the apartment and payment of attorney’s fees. Here is 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 ruling could find for the tenant and award the cost of the job and attorney’s fees plus allow here to stay in the apartment; or,
  • The ruling may find that the tenant was right to deduct but had deducted too much (especially if the landlord argues she contributed to the problem).

The main point is that when a judge rules there is some uncertainty for each party.  The landlord’s attorney will search for any excuse to undercut the tenant: she did not accommodate his handyman’s schedule; she undertook a repair without pricing it responsibly; and so on. For the tenant the risk is that she can lose her apartment.

What About Retaliation for Making a Complaint?

Can the landlord retaliate for a successful repair-and-deduct claim? 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

However it’s on the tenant to prove the fact of retaliation. She can use that argument as an affirmative defense against eviction or bring it as a separate civil action.

Are There Alternatives to Deduct-and-Withhold?

Small claims court is an option for recovering the cost of a repair. The limit is $10,000 which is sufficient to cover the repair or a month’s rent if the tenant wants to recover damages for non-tenantable premises. And Small Claims Court offers two more advantages: the tenant enters the process as a plaintiff (not a defendant) and she will not face a lawyered-up landlord because attorneys are not allowed.

Or turn to the city when the landlord’s breach is a threat to 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. 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.

(One exception does come to mind: changing the door locks. A tenant is generally bared from changing door locks and must rely on the landlord. But in cases of domestic violence, for example, the law is specific about the landlord’s obligation and he will act.)

Check out the city’s Home Handyworker service. (Read our page about it.) Now, the service does require the landlord’s permission, and a tenant must qualify on income, but at least cost should not be the problem for the landlord. Reach James Latta in Community Services at 310–285–2535 or by email: if the landlord is not amenable. (Have you used the city’s home handyworker service? Let me know what it did for you!)

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.