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The Warranty of Habitability


In response to an eviction action, many tenants raise a defense claiming that the landlord has breached the warranty to provide a habitable premises. ​

Most of the time, there has been no breach of the warranty of habitability that would entitle the tenant to a rent reduction or a defense to the eviction action. Still, it can be a powerful defense.

Every residential rental agreement in California contains an implied warranty of habitability. In other words, the landlord warrants that the premises is in fact habitable. In the landmark case of Green v. Superior Court, it was held that a tenant defending an unlawful detainer for nonpayment of rent may raise the landlord's breach of the warranty as a defense. The conditions covered by the warranty of habitability are enumerated in either Civil Code Section 1941.1 or applicable local housing and building codes. Contrary to what tenants and their advocates would have us believe, the existence of a prohibited (uninhabitable) condition or other noncompliance with applicable code standards does not necessarily constitute a breach of the warranty. Substantial Breach In order for there to be a breach of the warranty, the tenant must show that there is a substantial defect at the premises. This is true because a landlord is only required to maintain "bare living requirements”. The California Supreme Court gave an indication of the scope of the warranty: “In a modern society one cannot be expected to live in a multi-storied apartment building without heat, hot water, garbage disposal or elevator service. Failure to supply such things is a breach of the implied covenant of habitability. Malfunction of venetian blinds, water leaks, wall cracks, lack of painting, at least of the magnitude presented here, go to what may be called “amenities.” Living with lack of painting, water leaks and defective venetian blinds may be unpleasant, aesthetically unsatisfying, but does not come within the category of uninhabitability. Such things will not be considered in diminution of the rent.” Insubstantial defects and noncompliance with codes are tolerated by the law because the warranty of habitability does not require that a landlord make the premises in a perfect, aesthetically pleasing condition. Whether there has been a breach of the warranty of habitability is a factual determination to be made on case-by-case basis. It is not always easy to know if a condition rises to the level of a breach of the warranty. Proper Notice To establish a breach of the warranty, the tenant must also give notice of alleged defects to the landlord. A landlord has no right or duty to do regular inspections of the premises. If the tenant never tells the landlord of the problem, the landlord knows of nothing to repair. The tenant must allow a reasonable amount of time to make repairs to be made after giving notice to the landlord of the alleged defects. Tenant Obligations The tenant must not be the cause of the defect or noncompliance. It is the tenant's obligation to repair deteriorations and injuries to the premises caused by his or her own "want of ordinary care". The concept that one cannot benefit from one's own wrong comes from contract law and is applicable to the habitability defense. A landlord has not breached the warranty where the tenant has:

  • failed to keep the premises clean and sanitary;

  • failed to dispose of all rubbish, garbage, and other waste in a clean and sanitary manner;

  • failed to operate all electrical, gas, and plumbing fixtures and keep them clean and sanitary, or,

  • willfully and wantonly destroyed, defaced, damaged, impaired or removed parts of the rental unit or where the tenant has caused defects and damage due to own acts or neglect.

Unique San Francisco Issues The San Francisco Rent Ordinance includes a cause of action for tenants when a landlord, in bad faith, fails to exercise due diligence in completing repairs and maintenance once undertaken or fails to follow appropriate industry repair, containment or remediation protocols designed to minimize exposure to noise, dust, lead, paint, mold, asbestos, or other building materials with potentially harmful health impacts. Violating this Provision of the San Francisco Rent Ordinance requirement may expose a landlord to additional damages.

Unique Berkeley Issues The Berkeley eviction laws contain some unique provisions that could be a trap for the unwary. First, when landlords are evicting for nonpayment of rent, they must be in compliance with the laws of habitability. A landlord must allege in the eviction lawsuit, as to each rental unit on the property, substantial compliance with the warranty of habitability. The failure to allege substantial compliance with the warranty of habitability is a defense to an unlawful detainer complaint in Berkeley. Omitting the necessary allegation in the complaint is fatal unless the court permits an amendment of the complaint after it is filed.​ Affirmative Tenant Lawsuits Tenants may also bring their own lawsuits if the landlord has breached the warranty. In these lawsuits, the tenant will typically seek damages for loss of use of the rented property, emotional distress and statutory penalties. A prevailing tenant would be entitled to damages and attorney’s fees. A landlord’s property insurance might afford coverage for these claims. Conclusion

In most cases where the tenant has raised the defense of habitability, the defense fails. Since it is an affirmative defense, the tenant bears the burden of producing evidence of a breach of the warranty, and, ultimately the burden of proving the existence of the breach by a preponderance of the evidence. Most tenants cannot meet their burden of proof and the landlord prevails in the eviction lawsuit.

So why does the tenant bother to raise the defense in their answer to the complaint? First, they might have a slim chance of meeting their burden of proof. Second, it is something to argue about and hopefully prompt a settlement.

​​Copyright © 2017 by Fried & Williams LLP. All Rights Reserved. The information in this article is general in nature and should not be considered legal advice. For any specific matter, please consult with an attorney.

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