Any landlord who has done an eviction knows that tenants always claim the landlord breached the “warranty of habitability” as a defense to an eviction. In order to be successful, a tenant must prove four elements; 1) A substantial defect existed in the rental unit; 2) the landlord had either actual or constructive knowledge of the condition; 3) the landlord failed to remedy the condition; and, 4) the tenant neither substantially contributed to, nor substantially prevented the landlord from fixing, the condition. Sounds fairly simple, right? So why do so many judges and juries find that landlords have violated the warranty of habitability, even where the landlord had no knowledge about a condition requiring attention or repairs? It leaves many landlords asking, “How can the judge/jury say I breached the warranty of habitability by failing to fix something that I knew nothing about?” 

That question arises usually from a misunderstanding about the level of knowledge required by a landlord before the landlord has a duty to fix a problem. Many landlords reasonably, but mistakenly, misunderstand the meaning of “actual or constructive knowledge”. While actual knowledge is fairly simple to figure out, what constitutes “constructive” knowledge may surprise you. Judges are trained, and juries are instructed that “constructive knowledge” of a problem exists where a reasonable inspection would have revealed the problem.

So how does a landlord deal with this situation properly and proactively? Asked another way; how does a landlord ascertain the condition of the unit in order to make the repairs he or she will be deemed to know about? By using the right forms, policies, and procedures that enable landlords to get into their rental units for regular inspections. But there is one small problem; the law does not recognize a “right” of the landlord to enter a tenant’s rental unit simply to conduct a general inspection. So what do you do?  

Understanding Your Obligations and Rights

to Access the Unit for an Inspection

The first step is to understand your obligations and rights in connection with the inspection of your rental units, and the next step is to implement a plan that allows you access to the unit on a regular basis without violating the law or the tenants’ rights to privacy. 

Landlord’s “Obligation” to Inspect

A landlord’s duty to provide tenants with a “habitable” rental unit begins before the inception of the tenancy. Specifically, the landlord is obligated to inspect the unit and put it in a condition “fit for residential occupancy” prior to delivering it to the tenant, as well as at the time of renewal. For example, a one year fixed term lease requires the landlord to inspect the property both at the inception of the tenancy as well as a year later when renewing the lease. Additionally, landlords have a duty to inspect the unit for dangerous conditions at the renewal of the lease term, in order to “repair all subsequent dilapidations thereof which render it un-tenantable”. However, the law recognizes that these duties must be balanced with a tenant’s right to privacy and quiet enjoyment. In other words, the landlord has a duty to inspect the unit at various intervals, but the tenant’s right to live in peace and quiet cannot be infringed upon or abused by excessive inspections. 

Landlord’s Right to Inspect vs. Right to Enter

What about a landlord’s “right” to inspect? It seems reasonable that if a landlord will be held to “know” about a condition that a reasonable inspection would have revealed, they should have a corresponding right to go in and conduct an inspection, right? No. Wrong. Simply stated, while there is a right to enter under specified circumstances, there is no “right” of a landlord to enter a unit merely to inspect it.  In fact, there are only four basic circumstances in which a landlord is permitted to enter a tenant’s residence, including: 1) emergencies; 2) with the tenant’s permission; 3) to provide services and/or make agreed or necessary repairs; and, 4) to show the property to prospective purchasers, lenders, or tenants. Those rights cannot be expanded or waived.

Now that you understand the duty to inspect and your right to enter, let’s address “how to” get in the unit for an inspection. 

Documentation

Let’s start with documentation. Review your lease to make sure it contains provisions that: 1) require the tenant to provide access to the landlord or its agents; and, 2) prohibit the tenant from changing the locks without the landlord’s prior written consent, (which should be conditioned upon the tenant providing a set of working keys). Both provisions should include language making the tenant’s violation of either provision a material breach of the agreement. (Believe it or not, there are judges who refuse to evict tenants for a failure to allow access or provide keys to the landlord unless it is clearly stated in the lease that they are required to do so.) If your lease does not already contain one or both provisions, simply draft and serve a 30 day notice of change in terms of tenancy adding those provisions (provided a month to month tenancy exists. If not, simply add them at renewal time).

Now that the documentation allows you to evict a tenant for refusing to allow you access and/or changing the locks without giving you a key, let’s address policies and procedures for getting into the unit. 

Policies & Procedures

The next step in gaining access to the unit is to establish a policy of accessing the unit on regular intervals for legitimate purposes, (e.g., testing and maintaining the smoke and/or carbon monoxide detectors). This can be done on a non-intrusive schedule, such as quarterly, or every six months. By staggering the inspections (e.g., a yearly safety inspection in January, then one for testing and maintenance of the smoke and carbon monoxide detectors four to six months later) landlords should be able to reasonably inspect the unit three to four times a year. As part of your policies, it should be required that where tenants are present for the inspection, landlords will have the tenant sign a pre-printed inspection form in which the tenant acknowledges that there either are, or are not, conditions requiring attention. Those signed forms should be placed in the tenants permanent files as evidence of the habitable condition of their unit in the event of a trial.

But what about the period of time in between the inspections, during which the tenant will claim that a condition constituting a breach of warranty of habitability arose? How does a landlord insulate themselves from that? As the saying goes, there are a million ways to skin a cat. For example, I saw a client’s custom printed receipts on which he had two boxes at the bottom. Next to one box was printed “my residence requires maintenance or service” with a couple of lines next to it for a description. The second box simply stated “my residence does not require maintenance or service at this time”. His thought process goes like this: by having the tenant sign the receipt each month when they pay their rent, they are affirmatively indicating the unit is in good repair. Coupled with a solid preventive maintenance schedule and several redundant means in which the tenant can notify the landlord of problems, the tenant will be hard pressed to convince someone, whether judge or jury, that in the small period of time between the inspections every three to four months, a habitability problem popped up warranting withholding or reduced rent.

In conclusion, most tenants raise the landlord’s “breach of warranty of habitability” as a defense to an eviction action. It can provide them with an edge over landlords when negotiating settlements. The landlord’s knowledge of the problem, (whether actual or constructive) is an essential element of the defense, and the court routinely finds that landlords have the necessary knowledge where a reasonable inspection would have revealed the condition. To protect themselves from this situation, landlords have to get into their units for inspections on a regular basis, notwithstanding the fact that the law limits their ability to do so. In order to inspect their units on a regular basis, while respecting the tenants’ right to quiet enjoyment and privacy, landlords need to adopt proactive systems which include proper documentation, policies, and procedures that: 1) allow a landlord to legally enter the unit for regular inspections, and 2) allow the landlord to terminate the agreement for a tenant’s failure to grant access.

By combining the landlord’s legally required inspections (at inception or renewal) with the legally recognized situations in which a landlord may enter the unit (e.g., testing and maintaining the smoke detectors), landlords should be able to access the unit on a regular basis to inspect it for conditions requiring attention. In conjunction with creative approaches like having tenants sign off on the habitable condition of the unit each time the landlord inspects, and signing their rent receipts indicating no problems exist in the unit, landlords can effectively diminish the possibility of a judge or jury deeming them to have the knowledge necessary to support the tenant’s claim of habitability.  

The foregoing information is presented and intended to address the topic(s) covered above in a general nature, and not as specific legal advice.  Specific situations and their facts should be presented to your attorney for review.  The Brennan Law Firm is one of the premier landlord-tenant law firms in Southern California, representing landlords exclusively in evictions, judgment enforcement, and other landlord-tenant matters. Mr. Brennan is a frequent speaker and contributing author for AOA, and may be reached at (626)294-0500, or toll free at (855)285-2230. Please visit our website at www.MBrennanLaw.com for more information.