This article was posted on Thursday, May 01, 2014

Q:  I own an old house that is in need of many repairs.  I don’t have the money to fix up the house so I rent it out “as is.”  Now my tenants are claiming that the house has habitability issues.  What are habitability issues?  What are my responsibilities when the tenants sign an agreement to rent the house “as-is”?
Every agreement to rent a residential unit contains what is called the “implied warranty of habitability.”  This means that your rental unit must be “habitable,” or fit for human beings to live in, and that the unit complies with all state and local building and health codes.  Under California law, you as a landlord are required to make the unit habitable so that the tenant has a safe and healthy place to live. 

The implied warranty of habitability cannot be waived by the tenant or contracted around.  Thus, any term of an agreement attempting to rent a residential unit “as-is” is invalid to the extent it limits the landlord’s responsibility to make the unit habitable.

If your tenants complain to you about substantial defects in the unit or violations of any health and safety code that make the  unit uninhabitable, you have a responsibility to address the issue and make any necessary repairs as soon as is reasonably possible.  This is true even if you rent the property “as-is.”  However, you are not legally responsible to fix any habitability issues caused by your tenants, their family members, guests, or pets.

Q:  The central heater in one of my older rental units recently went out.  It is very expensive to fix and the parts are on back order.  Can I buy space heaters for each room in the unit until I am able to save some cash and all of the parts are ready?  My new tenant is claiming this is a breach of the implied warranty of habitability, is he right?  He is also claiming that he can withhold part of the rent if I do not fix the central heating facility, is that true?
Yes, you can buy space heaters to solve the heating problem temporarily.  However, your unit must have a permanent heating facility in good working order.  Lack of a permanent heating facility is a violation of the implied warranty of habitability.  If your central heating goes out it is acceptable for you to purchase space heaters for the tenant to use while you repair or replace the unit, but space heaters are not a permanent heating facility so they are not a long term solution to your problem.  You must repair or replace the central heater within a reasonable time after you receive notice of the problem.  What is considered a reasonable amount of time depends on the situation.  Thirty days is usually considered reasonable in most situations.  However, if it is the middle of winter thirty days might not be reasonable in this situation.   

If you do not provide your tenant with a permanent heating facility in good working order within a reasonable time, then you are violating the implied warranty of habitability.  Your tenant has a few options in this situation. For example, he can repair the central heater himself and deduct the cost from his monthly rent payment.  However, if the cost of repairing or replacing the unit costs more than a month of rent the tenant has the option to just withhold the rent rather than attempt to make the repairs.  Thus, your tenant might be justified in withholding his rent payment and you should fix or replace the permanent heating unit.

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Q:  My tenants complained that there are rats in their unit.  I sent out pest control immediately and provided rat traps.  A few months have gone by and now the tenants are complaining again.  The tenants are very messy and leave dog food out that attracts the rats.  Do I need to send out pest control again?
You should.  It is always a good idea to send out pest control when tenants complain of rats in the unit.  Rats are a habitability issue.  However, in this situation it does sound like the tenant is causing the issue.  Just as you have responsibilities to the tenant, he has responsibilities as well under California 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 rats 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 are not responsible for the habitability issue.  Thus, if the rats 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.

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 8:00 AM to 4:00 PM.  Walk-in’s welcome from 1:00 to 4:00 PM only – no appointment necessary.  Tel: 619-235-6180, website: or email [email protected].

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