This article was posted on Saturday, Feb 02, 2013

Question 1:  My tenant is complaining that his unit has habitability issues.  What are habitability issues and what are my responsibilities when my tenant makes such a complaint?
Answer 1: Your rental unit must be “habitable” for the tenant to live in.  Habitable means that the unit is fit for occupation by human beings and that the unit complies with all local and state building and health codes so that the tenant has a safe and healthy place to live.  UnderCalifornia law, you as a landlord are required to make the unit habitable or fit to live in.  If the tenant complains to you about substantial defects in the unit or violations of any health or safety code that make his unit uninhabitable, you have a responsibility to address the issue and make any necessary repairs as soon as is reasonably possible.  However, if your tenant or his family members, guests, or pets cause the habitability issues, you are not legally responsible to rectify these issues. 

Question 2:  The wall heater in one of my older rental units went out a few years ago.  Rather than spend the money to replace the heater, I bought portable space heaters for each room in the unit.  My new tenant is claiming this is a breach of the implied warranty of habitability, is he right? 
Answer 2:Your unit must have a permanent heating facility in good working order.  If your unit’s wall heater goes out it is acceptable for you to purchase space heaters for the tenant to use while you repair or replace the unit.  However, if your permanent heating facility went out a few years ago and you have not fixed it you should definitely do so.  Space heaters are not considered a permanent heating facility and thus are not a long term solution to your problem.  If you do not provide your tenant with a permanent heating facility in good working order you may be in violation of the implied warranty of habitability. 

Question 3:  My tenant complained that there are cockroaches in his unit.  I sent a fumigation company to the unit immediately.  A few months have gone by and now the tenant is complaining again.  The tenant is very messy and has two big dogs so it’s possible he could be causing the cockroach issue, do I still have to fumigate the unit again?
Answer 3: You should.  It is always a good idea to get a unit fumigated when a tenant complains of cockroaches in his unit.  Cockroaches are a habitability issue.  However, in this situation it does sound like the tenant may be causing the issue.  Just as you have responsibilities to the tenant, he has responsibilities to you as well underCalifornia law.  These responsibilities include maintaining the premises in a clean and sanitary condition, operating all gas, electrical and plumbing fixtures properly, and disposing of trash and garbage in a clean and sanitary manner.  Since cockroaches are a habitability issue you need to do your best to keep the unit free of them.  However, if the tenant fails to perform his responsibilities and that is a substantial cause of the condition or the tenant has interfered with your ability to rectify the issue, you will not be held responsible for the habitability issue.  Thus, if the cockroaches returned to the unit solely because the tenant leaves dog food and feces on the floor and leaves trash all over a dirty unit, he would not be justified in withholding rent.

Question 4: My new tenant is a handyman and he has offered to perform all maintenance and repairs to the unit in exchange for a lower rent, can he do that?
Answer 4: Yes.  You and the tenant can agree in the written rental agreement or lease that the tenant will perform all maintenance and repairs in exchange for lower rent.  This might be ideal in a situation where the rental unit is far from where you live and it would be difficult for you to go to the unit to do minimal repairs and maintenance.  When you negotiate the agreement you must do it in good faith, the rent reduction for the tenant must be fair for the work he performs.  You and the tenant can agree to put a cap on the amount of work he performs and the amount of money he spends to necessitate the repairs for things such as supplies.  It would be wise to indicate in your agreement that all repairs and maintenance will be approved by you before they are done.  Whatever you do, be sure to get any such agreement in writing and remember that you are still ultimately responsible for maintaining the property as required by state and local housing codes.

Question 5: One of my tenants called to complain that a curtain rod in his bedroom fell off the wall when he was not home.  The tenant said he did not cause the problem, and that it is a habitability issue.  Is that true?
Answer 5: No.  A broken curtain rod is not a habitability issue.  In order for a condition to be a habitability issue it must be substantial issue affecting the tenant’s ability to occupy the residence.  A broken curtain rod is not a substantial habitability issue, but rather more of a minor cosmetic issue, if anything.  You can repair the curtain rod or replace it for the tenant, but your tenant cannot complain that this is a habitability issue since a missing curtain rod would not affect his health and safety within the unit. 

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Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 18 years.  He is also an adjunct law professor at the University of San Diego.  Mr. Simone’s office is open Monday- Friday from 8:00 AM to 4:00 PM.  Walk-in’s welcome -no appointment necessary.  Tel: 619-235-6180, website: or email [email protected].  





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