Landlords in California face their fair share of challenges, including those arising from a rental property that falls into a state of disrepair. Under the implied warranty of habitability, the landlord is legally responsible for maintaining a habitable rental unit – including making repairs to the property.  What happens when the landlord fails to satisfy this obligation?

One remedy available to a tenant is the so-called “repair and deduct” remedy authorized by Civil Code section 1942.  This section allows the tenant to make the repairs under certain circumstances, and deduct the amount of the repairs from the rent.   Here is an overview of the issues implicated by Civil Code section 1942. 

The “Repair and Deduct” Statute

Civil Code section 1942 provides in relevant part:

“If within a reasonable time after written or oral notice to the landlord … of dilapidations rendering the premises ‘untenantable’ which the landlord ought to repair, the landlord neglects to do so, the tenant may repair the same himself ….”

To invoke this remedy, the tenant must give the landlord advance notice of his or her intention to exercise the option, within a “reasonable time” before exercising the option.  Under the statute, 30 days is presumed to be a reasonable time, but it could be shorter depending on the particular circumstances of the case.  

What Is Considered “Untenable”?

A threshold requirement of the repair and deduct remedy is the unit being “untenantable”, which is simply another way of saying uninhabitable. Habitability is defined by both statute and case law, and focuses primarily on the tenant’s health and safety.  So, for example, a leaky roof would be covered, but the cable going out in the rental property would not.

What are the Limitations of the Repair & Deduct Remedy?

This Civil Code 1942 remedy is not unlimited.

For example, the cost of the repair under the Civil Code 1942 repair and deduct remedy cannot cost more than one month’s rent. Further, the tenant cannot avail himself of this remedy more than twice in any 12-month period.  The “repair and deduct” remedy also is not available if the tenant is in violation of Civil Code 1929 or Civil Code 1941.2.  Under Section 1929, tenants must repair all deteriorations or injuries to property caused by their lack of ordinary care. Section 1941.2 provides that a landlord has no duty to repair if the tenant is in substantial violation of maintaining the property or if the tenant contributed substantially to the bad condition of the property. Thus, the “repair and deduct” remedy is not available where the tenant is at fault or otherwise responsible for the dilapidated condition of the property. 

The Move Out Option

The tenant can also choose to vacate the property when it becomes uninhabitable.  If the tenant chooses this option, he or she “shall be discharged from further payment of rent, or performance of other conditions as of the date of vacating the premise”. (Civil Code section 1942).  Thus, if the tenant does not wish to make the repair, the tenant can instead decide to move out of the property and deliver possession back to landlord. If the tenant decides to move out under this scenario, the tenant will not need to make future rent payments and is discharged from the other conditions of the rental agreement as of the date the tenant delivered possession back to the landlord.

Please contact Lynx Legal Service with any questions regarding the above or if you need eviction-related services.  We can be reached at 888-441-2355 or [email protected].  Our experienced professionals are standing by to assist in any way we can.