When a landlord in California fails to fix serious problems with a rental unit, the tenant has a legal right to withhold some or all of that month’s rent. However, the problem with the rental unit can’t be just a minor inconvenience—it must seriously interfere with the tenant’s ability to live comfortably. Before withholding rent in California, a tenant is required to inform the landlord about what repairs need to be made and give them up to 30 days to make the repairs. If a tenant withholds rent incorrectly, it can mean eviction.
Rent withholding can only be used if the rental needs serious repairs
Tenants can’t withhold rent every time a landlord fails to make a repair. To legally withhold rent, the needed repairs must make it unsafe or unhealthy for the tenant to live in the unit.1 In other words, they must be serious defects that breach California’s implied warranty of habitability—like a leaking roof, broken windows, a lack of hot and cold water, or poorly maintained stairways and railings.
A 1974 California court case laid out some of the repairs serious enough for a tenant to withhold rent.2 A tenant in San Francisco faced several major issues with their apartment, including exposed and broken electrical wiring, a collapsed bathroom ceiling, plumbing blockages, and rodents and insects on the premises. The judge decided that the list of serious defects taken together justified the tenant withholding rent.
Tenants can’t withhold rent if they caused the problem
If any of the damage was caused by the tenant or the tenant’s guests (or even a pet), then the tenant cannot legally withhold rent.3
Tenants must notify their landlord of the problem first
Before withholding any rent, a tenant must inform their landlord that repairs need to be made so they have the opportunity to make them. The landlord should be told in detail what needs repairing and given a list, if it’s more than one thing.
While notice can be given to a landlord verbally or in writing, it’s recommended a tenant give written notice to prove the landlord was aware of the needed repairs in the case of a dispute. It’s also helpful for the tenant to take pictures or videos of the items needing repair.4
Landlords in California have up to 30 days to make repairs
After being notified of needed repairs, a landlord must make them within a reasonable time.5 Thirty days is often considered reasonable, but that may be too long for a repair that needs to be done immediately. For instance, if there is exposed electrical wiring that's sparking—and could easily catch fire—one day may be considered a reasonable amount of time for the repair.
Tenants can decide how much of their rent to withhold
If the landlord ignores the request for repairs and the tenant must continue to live in an unsafe or unhealthy rental unit, the tenant can withhold some or all of that month’s rent.6 The tenant can withhold rent until the landlord makes the needed repairs.
When deciding how much rent can fairly be withheld, judges often use one of the following methods:7
- Reasonable value of rental: Using this method, the tenant pays the difference between the rent amount stated in the lease and the value of the rental in its current, unrepaired state. The judge decides the current value of the unit.
- Percentage reduction in rent: With this method, the judge determines how much of the unit is uninhabitable because of the defective conditions and decreases the rent by that amount. For instance, if the plumbing in the kitchen is defective and the kitchen is one of four rooms, then a tenant can withhold one-quarter of their rent.
Tenants should store withheld rent in a separate account
While not legally required in California, it’s a good idea for tenants to keep any rent they withhold in a separate escrow account. This is a safeguard in case the landlord sues the tenant for unpaid rent. It also helps the tenant prove that they weren’t withholding rent for another reason, such as lack of money.
Tenants can be evicted for wrongly withholding rent
If a tenant withholds rent for a repair that isn’t substantial and doesn’t affect their safety or health, the landlord can issue an eviction notice to pay the full rent or leave.8 A tenant who doesn’t pay the full rent may be brought to court and evicted by their landlord. In court, the tenant must prove that the landlord failed to repair serious issues at their rental unit.
If the court sides with the tenant, the landlord must make the repairs and the tenant must pay whatever portion of the rent the court decides is fair.9 The tenant must pay the rent within five days of the court’s decision or they can be evicted.
If the court sides with the landlord, the tenant must pay the full rent and may have to pay the landlord’s attorney’s fees. The tenant may also be evicted.
If the repair is small enough, tenants could pay for the fix themselves and deduct the cost from their rent. Or, if the issue is so severe it's unsafe to keep living in the rental, they could consider constructive eviction.
The information provided on this website does not, and is not intended to, constitute legal advice.
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