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Q.Does a tenant have any other options other than repair and deduct, abandonment, and rent withholding?
A.Yes. Civil Code Section 1942.4 provides that a tenant can file a lawsuit against the landlord to recover money damages if the landlord does not repair serious defects in the rental unit in a timely manner. This kind of lawsuit can be filed in civil court or if the damages are less than $7,.500 in Small Claims Court. If the tenant wins the lawsuit, the Court may award the tenant his or her actual damages, costs, attorneys fees, and "special damages" in an amount ranging from $100 to $5,000. See, California Civil Code Section 1942.4(b).
Pursuant to California Civil Code Section 1942(a) and (c), in addition to damages the Court may also order the landlord to abate (stop or eliminate) a nuisance and to repair any substandard condition that significantly affects the health and safety of the tenant. For example, the Court could order the landlord to immediately repair broken windows and a cracked toilet, and could retain jurisdiction over the case until the windows and toilet are fixed.
To win a lawsuit against the landlord the tenant must prove:
- The rental unit has one or more serious habitability defects. (see Conditions that make a rental unit legally uninhabitable); or has been declared substandard due to a structural hazard, inadequate sanitation, or a nuisance that endangers the health, life, safety, property, or welfare of the occupants or the public; and
- A housing inspector has inspected the premises and has given the landlord or the landlord's agent written notice of the landlord's obligation to repair the substandard conditions or abate the nuisance; and
- The nuisance or substandard conditions continued to exist 35 days after the housing inspector mailed the notice to the landlord or agent, and the landlord does not have good cause for failing to make the repairs; and
- The nuisance or substandard conditions were not caused by the tenant or the tenant's family, guests or pets; and
- The landlord collects or demands rent, issues a notice of rent increase, or issues a 3-Day Notice To Pay Rent Or Quit after all of the above conditions have been met.
To prepare for filing this kind of lawsuit, the tenant should take all of these basic steps:
- The tenant should notify the landlord in writing via certified mail about the serious defects that require repair. The notice should specifically describe the defects and the repairs that are required and should give the landlord a reasonable period of time to make the repairs.
- If the landlord doesn't make the repairs within a reasonable time, the tenant should contact the local city or county building department, health department, or housing authority and request an inspection.
- The housing inspector must inspect the rental unit and must give the landlord written notice of the required repairs. The tenant should request a copy of this notice.
- The tenant should wait 35 days as the substandard conditions must continue to exist 35 days after the housing inspector mailed the notice to the landlord or landlord's agent. The landlord then must collect or demand rent, raise the rent, or serve a three-day notice to pay rent or quit.
- The tenant should gather evidence of the substandard conditions (for example, photographs or videos, statements of witnesses, inspection reports) so that the tenant can prove his or her case in court.
- The tenant should discuss the case with a lawyer, legal aid organization, tenant program, or housing clinic in order to understand what the lawsuit is likely to accomplish, and also the risks involved.
Portions of the above were taken from the State of California, Department of Consumer Affiars, "California Tenants, A Guide to Residential Tenants' and Landlords' Rights and Responsibilities."
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