Habitability - What You Need To Know

When "habitability" is referred to in the rental business, it is dealing with the basic, inalienable services that a Landlord must always supply to the tenant. These items cannot be forfeited by the tenant in the rental agreement or by any other means. Even if the Landlord and the tenant agree in writing that the tenant will be responsible for these items, a judge will hold the Landlord responsible if these are not provided for the tenant. These habitability issues include the following: Lockable doors and secure windows that are not broken Clean dwelling at time of move-in. Working heating system Working electrical system that meets code requirements Working water system, including hot water Secure roof with no leaks Insect and rodent free environment Plumbing system that is functional and not leaking If for any reason these services are not working properly and the owner has been notified either verbally, in writing or should know of any problems by way of personal inspections or reports from others who have been at the unit, the Landlord should restore these services immediately or as soon as is reasonably possible. If an owner elects not to restore any of these services after receiving notice and given a reasonable time, the tenant has the option to do one of several things that include:

To pay someone to restore these services as long as it does not exceed one month's rent and deduct the expenses of the repair from the rent when due. Leave the unit regardless of the time left on the rental lease and not be responsible for the rent or any other contractual responsibilities.

If the tenant withholds rent because of the lack of services, they usually do not pay someone to have the repairs done. They usually argue about the work needed and just don't pay. If a Landlord begins an eviction under these circumstances and the tenant contests the eviction and requests a court hearing before a judge, the tenant will prevail in the eviction as long as they can prove the work is not done and the Landlord was notified about the needed work. Judges, especially in the Hayward courts, are very sympathetic towards tenants who are forced to live in units that do not meet the habitability standards of the law. The best that will happen to a Landlord in this situation is that the judge will decide to reduce the rent that is due, require the Landlord to make the needed repairs and tell the tenant to pay the reduced rent as soon as the work is done. The worst that could happen is that the judge decides that no rent is due (or very little) and then the judge reduces the rent that was due (and paid previously) over the last 2-6 months, (depending on how long the problems have existed) and requires the Landlord to make the repairs and come back to court to prove the repairs were made. You hope this never happens to you because the loss of rents could be very high. Actually, there is something else that could happen that would be worse. If the tenant were to ask for a jury trial and you were to present the case to a jury, this would be worse. This could take up to 5 court days, you may seek the counsel of an attorney at $150/hour or more and then lose back rents, current rents, and still have to make all the repairs. This would definitely be worse. I hope that I have scared you enough to make sure that you provide these basic, inalienable services to your tenant. Additionally, if there are any other services or working appliances that you offer to your tenants by way of a rental contract, (oral or written) or just by supplying them with the appliances, these items fall under a category similar to habitability when it comes to taking legal action. If these services are not provided, similar penalties could be required of the Landlord.