What landlords need to know about the “implied warranty of habitability”
SOURCE: Marc Hoag via Midjourney
This is educational material and does not constitute legal advice nor is any attorney/client relationship created with this article, hence you should contact and engage an attorney if you have any legal questions.
Implied warranty of habitability overview
The “implied warranty of habitability” is an implied warranty by all landlords that their rental property is suitable for human habitation. It was first established in the landmark case of Green v. Superior Court (10 Cal. 3d 626 (1974)). While the general concept of the implied warranty of habitability is probably familiar to most landlords, it’s essential to understand its multilayered nuances, especially as 2024 gets underway with its even stronger pro-tenant laws.
The implied warranty of habitability doesn’t require that the rental property needs to be in perfect aesthetic condition, or even functionally perfect; but it does impose some basic necessities the absence of which are grounds for a tenant to withhold rent or even break the lease entirely.
Under California law (Cal. Civ. Code §1941.1), a rental property is in breach of the implied warranty of habitability if “substantially lacks” any of the following:
Adequate weather protection for roofs, walls, windows, and doors.
Plumbing and gas facilities compliant and well-maintained.
Approved water supply, capable of hot and cold running water, under tenant or landlord control, and connected to an approved sewage system.
Heating facilities compliant and in working order.
Electrical lighting and equipment compliant and functional.
Clean and sanitary building and surroundings, free from debris and pests.
Provided garbage and rubbish receptacles, kept clean and in good repair by the landlord.
Well-maintained floors, stairways, and railings.
Locking mail receptacle required for residential units in a residential hotel, as of July 1, 2008.
Note the requirement that the rental unit “substantially” lacks any of those items above. Cal. Civ. Code §1174.2(a) also reiterates the need for a “substantial” breach while Cal. Civ. Code §1174.2(c) defines “substantial” to mean anything that “materially affect[s] health and safety.”
Other requirements implied by the implied warranty of habitability
Meanwhile, Cal. Civ. Code §1941.3 additionally requires "an operable dead bolt lock on each main swinging entry door of a dwelling unit” as well as locking mechanisms on windows. So this means front and rear doors that swing open — probably even doors to private backyards which are accessible via side access gates to a public street — and locking latches on windows.
Cal. Civ. Code §1942.3(a) also requires all of the following to be satisfied in order to establish a rebuttable presumption of a breach of the implied warranty of habitability; this means that if all of the following can be established by the tenant, then it is presumed that a breach is indeed present unless the landlord can sufficiently prove otherwise:
any of the items listed above
anything substandard per Health & Safety Code §17920.3 (see below)
official notice to the landlord by a public official
the conditions must have existed for 60+ days unabated, and the delay in repairs is without good cause
the conditions were not caused by the tenant’s acts or omissions (which would violate Cal. Civ. Code §§1929 and 1941.2)
Satisfying Cal. Health & Safety Code §17920.3 contemplates the presence of “any of the following … conditions to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants thereof.” This is quite an exhaustive list and you can read all of it here, but it includes some expected items such as:
inadequate sanitation (sinks, toilets, etc)
natural light
room sizes
dampness
“infestation of insects, vermin, or rodents”
“visible mold growth … excluding the presence of mold that is minor and found on surfaces that can accumulate moisture as part of their properly functioning and intended use”
Note that when taken together with the requirement that there must be a “substantial breach” in order to trigger a habitability claim by a tenant, the language is quite precise with respect to an “infestation” of insects, vermin, or rodents, i.e., a few droppings in the attic or an occasional rat sighting in or around the property probably won’t qualify as an “infestation.”
Also, as a practical matter, in order for mold to truly be an issue, it will typically need to be so pronounced that it is unmistakable when entering a home due to the stench in the air and the burning in the eyes and throat.
Urgent habitability issues should be tended to as quickly as possible. For example, if a toilet starts overflowing and flooding the home, a 24-hour emergency plumbing service needs to be summoned. If your tenants are away on a trip and they return home to find rats running around in all the rooms, an emergency pest control service needs to be contacted. For non-urgent matters, landlords are afforded a “reasonable” time to make repairs presumed to be 30 days from when their tenant first notified them of the issue.
What about a tenant’s right to “repair and reduct?”
Under Cal. Civ. Code §1942, a tenant can “repair and deduct” the cost of those repairs from the next month’s rent if all of the following are satisfied:
The tenant has provided a reasonable notice to the landlord of their intent to make repairs; 30 days is presumed reasonable
The cost of the repairs is less than one month’s rent
The tenant has not done more than two such repairs in the past 12 months
The repair issue is a breach of the implied warranty of habitability
The tenant did not cause the damage (Cal. Civ. Code §§1929 and 1941.2)
What if the tenant simply withholds rent?
Alternatively, a tenant may elect to simply withhold rent unless and until the landlord makes repairs. If this happens, the landlord may choose to serve the tenant with a 3-day notice to pay or quit if the landlord believes the tenant’s complaints to be without merit. This will give the tenant three days to pay the improperly withheld rent. If the tenant does not pay the withheld rent by the end of the third day, then the landlord should file an eviction lawsuit (unlawful detainer) for failure to pay rent.
If you have any questions about the implied warranty of habitability, or you have a tenant withholding rent because they are alleging a breach of the implied warranty of habitability, be sure to contact us now.