This article was posted on Friday, Aug 01, 2014

Q: My tenant called me when I was on vacation and complained that a screen was broken and in need of repair.  I told the tenant I would address the issue when I returned from my vacation.  My tenant decided not to wait and repaired the screen without my permission and then asked to be reimbursed.  Do I have to reimburse him? 

A broken screen can become a habitability issue (bugs can get into the unit through the broken screen), so the landlord should promptly address that issue.  If a landlord doesn’t make the requested repairs, and doesn’t have a good reason for not doing so, the tenant may have one of several remedies, depending on the seriousness of the repairs.  However, here your tenant should have waited for you to make the repairs, and given you a reasonable time to do so.  This is not a serious habitability issue if it is taken care of promptly, and you stated you would make the repair when you returned.

Further, the tenant should at least have notified you that he would not wait, and ask your permission to repair the screen himself.   To avoid conflict with the tenant, it might be a good idea to just reimburse him the cost of the screen repair, especially if it was done properly and the cost was reasonable.  You may want to establish a system with the tenant in the future to deal with these types of situations and let him know that you would like to authorize all repairs in the future before they occur.  If your tenant is on a month to month agreement, you can also add a clause to the agreement which states this as well (just be sure you follow the appropriate notice of change of terms of tenancy procedures).  

Q: 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?

Yes, but I do not recommend it because it may cause future issues for you if you have to terminate the tenancy because the tenant stops making the repairs or performs a substandard job in completing the repairs.  That being said, 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.

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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.

Q:  My tenant did not pay his rent this month and told me he is exercising his right to use the repair and deduct remedy because he fixed several things in his rental unit.  What is the repair and deduct remedy?  I had no idea anything needed repair, can he do this? 

A tenant may use the “repair and deduct” remedy to deduct money from the rent, up to the amount of one month’s rent, to pay for repair of defects in the rental unit. The remedy may be used to correct issues that constitute a substantial breach of the implied warranty of habitability (such as a broken heater or leaking faucet under the sink).

There are seven factors that must be present for the tenant to use this remedy:

  1. The defects must be serious and relate to the tenant’s health and safety.
  2. The  epairs cannot cost more than one month’s rent.
  3. The tenant cannot use this remedy if he has already done so more than twice in any 12-month period.
  4. The tenant or his family, guests, or pets must not have caused the defects that require repair.
  5. The tenant must give the landlord notice orally or in writing that the repairs are needed,
  6. The tenant must give the landlord a reasonable period of time to make the needed repairs, and
  7. If the landlord does not complete the repairs within a reasonable period of time, then the tenant may either make the repairs himself or hire someone to make the repairs.

If the tenant follows the above procedures, then he is allowed to deduct the cost of the repairs from the rent when it is due. Here, your tenant did not notify you of the repairs or give you a reasonable time to make the repairs, so he is not justified to use the repair and deduct remedy and he is still on the hook for the rent.  At this point, you can serve your tenant with a three day notice to pay rent or quit and file an eviction based off that notice if he refuses to pay the full amount of rent due within the three day period or vacate the premises within the three day period.

Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 20 years.  He is also an adjunct law professor at the University of San Diego.  Mr. Simone’s office is open Monday- Friday from 9:00 AM to 5:00 PM. –  Tel: 619-235-6180, website: or email [email protected].





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