Rent Deductions, Disagreements, A Leak

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Q: It’s always something with one particular tenant of mine. When he first moved in three months ago, he deducted about $100 from the rent because he said he had to fix a few things in the unit. I didn’t say anything at the time, I needed the unit rented, and I didn’t want to upset my new tenant. Since then, he has been able to find something wrong each and every month, deducting a little bit each month. I told him I didn’t think that was right, but he did it again this month. He says he is entitled to it, that California law says he can “repair and deduct” for anything wrong in his apartment. Is this true?

A:
No. California law, specifically California Civil Code Section 1941.2, provides that a residential tenant may make repairs and deduct the cost from the rent only under certain circumstances. These certain circumstances require the tenant to give the landlord notice of the dilapidation before using the repair and deduct remedy. After giving notice, the landlord has a “reasonable time” to make the repairs, before the resident can unilaterally “repair and deduct.” Only defects that render the premises uninhabitable will qualify for this remedy. Tenants may only invoke this remedy twice in any 12-month period, and each time the remedy is utilized, the tenant cannot exceed one month’s rent. In your situation, it appears that the tenant is abusing a privilege only available to tenants with serious dilapidations in their apartments. Without providing notice to you of the defect, and an opportunity for you to correct any serious defect, the tenant is not entitled to deduct anything from his rent. Provided you haven’t condoned his conduct or waived your rights to accept the full amount of rent, you may demand that the tenant pay all amounts previously deducted and become current.

Q: My tenants and I seem to be able to work out our differences quite easily, but there are times when we disagree as to just who is responsible for making certain repairs to the apartment. Can you give me some guidelines that will help me decide if the repairs are my responsibility or the responsibility of the tenant?

A:
Residential rental units must be “habitable.” In legal terms, “habitable” means the rental unit is fit for persons to live in and that it substantially complies with state and local building and health codes that materially affect a tenant’s health and safety. The law makes both landlords and tenants responsible for certain repairs, but you are ultimately responsible to ensure the unit is habitable. You are not responsible under the “implied warranty of habitability” for repairing damage caused by the tenant, his guests or his pets. You are responsible to take care of the habitability items, but your rental agreement can determine who takes care of the minor repairs. California law lists several items that are required to maintain a habitable unit. These are: effective water proofing and weather protection, including unbroken windows and doors; plumbing in good working order, including hot and cold running water connected to a sewage disposal system; gas facilities, heating, and electrical in good working order; clean and sanitary buildings and grounds; adequate trash receptacles; and floors, stairways and railings in good repair.

Additionally, each rental unit must have a working toilet, washbasin and a bathtub or shower; operable dead bolts on the main entry doors, window locks and smoke detectors. A landlord is also responsible for the installation and maintenance of the inside wiring for one telephone jack.

Tenants must take reasonable care of the rental unit and the common areas. Tenants are responsible for repair of all damage resulting from their neglect, abuse or acts by their family, guests or pets. Tenants must do all of the following: keep the premises “clean and sanitary;” use and operate gas, electrical and plumbing fixtures properly; dispose of trash and garbage properly; not destroy, damage or deface the property; not remove any part of the structure, dwelling, facilities or equipment; use the premises as a place to live and use the rooms for their intended purpose; and notify the landlord when dead bolts and window locks don’t operate properly.

Q: I have a problem in one of my rental properties. The property has parking below the complex for the residents. Apparently, due to the rains, a leak occurred in the ceiling of the garage. The water collected in one of the ducts, becoming quite dirty and rusty. This water then leaked down onto a resident’s car. As it turns out, the car’s rear passenger window was cracked open and the water leaked onto several of the tenant’s personal belongings. Needless to say, the tenant threw a tantrum in the management office the next day. I apologized profusely and offered to have her car washed and detailed. She accepted. However, the next month, this tenant’s rent was $175 short. Along with the rent, the tenant included a letter stating that she had deducted the cost of the damage to her personal belongings. Can the tenant do this?

A:
No. A leak onto the automobile of a tenant has nothing to do with the tenant’s obligation to pay rent. As such, the tenant may not deduct these items from her rent. You would be within your rights to serve the tenant with a 3-Day Notice to Pay Rent or Quit for the $175 difference. As far as the damage to her personal property, the landlord is generally not liable for the tenant’s personal property unless the landlord was somehow negligent.

Q: I am an owner of several complexes. All of the on-site managers have different “theories” on what to do with a tenant’s personal property when the tenant vacates. I know that there is a duty to safeguard the personal property, but could you please tell me the procedure and duration of my duty to store a former tenant’s personal property?

A:
Well, the answer depends on under what circumstances the tenant vacated. If the tenant vacated voluntarily, you must mail a Notice of Abandonment of Personal Property to the tenant’s last known address and allow the tenant eighteen (18) days to claim the property. If, however, the tenant vacated following the enforcement of a writ of possession, you must allow your tenant fifteen (15) days to claim the property. The property must be kept in a reasonably safe place but does not have to be stored in the leased premises. If the property left behind is less than $700 you may dispose of it after the above required time periods.

However, if the abandoned property is worth more than $700 in fair market value, you must sell the property through a public sale. This requires you to publish the date and time of the sale in a newspaper of general circulation once a week for two consec utive weeks, with the sale the following week. If the tenant returns to claim the property, you must return it, but you can charge reasonable storage fees. Be aware that you may not hold the property as ransom for the rent owed, even if you have a judgment.


This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular situation should be addressed to your attorney. Stephen C. Duringer is the founder of The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms in the country. The firm has successfully handled over 255,000 landlord tenant matters throughout California, and has collected over $155,000,000.00 in debt since 1988. The firm may be reached at 714-279-1100 or 800-829-6994. Please visit www.DuringerLaw.com for more information.

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