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Warranty of habitability in California

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This guide to tenant's rights in California outlines the rights that all tenants have in the State of California regarding habitability of their residence.
In other words it tells you what your landlord has to do in order to comply with the law. If your landlord does not it details what the law says and what you can do about it.

Numerous citations to the laws that pertain to residential tenancies are included as well as instructions on using affirmative defenses in an answer to an unlawful detainer (eviction) complaint.

The guide is 23 pages long and was just updated in January 2019.

The author is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale.

Note that the author is NOT an attorney and no guarantee or warranty is provided.

Published in: Law
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Warranty of habitability in California

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  2. 2. 2 California tenant’s guide to the affirmative defense of breach of warranty of habitability. Sick of paying rent for a place where the hot water is about 70 degrees and the heat barely heats? Where the plumbing does not work? Are there other major problems with the place you are renting? Then this e-book is for you my friend. This e-book will show you how to successfully use the legal system in California to force your landlord to fix all of the major problems in your residence. It lists all of the major problems that the law considers to affect the habitability of any residence offered for rent or lease in the State of California. And it gives you the citations to the statutory and case authority you need in order to force your landlord to “fix this dump”. Did you know for instance that if your residence does not have deadbolt locks that is considered to affect the habitability of your residence? Did you know that if your local housing inspector informs your landlord that they need to fix certain major problems and they do not fix them within a certain period of time that they cannot collect any rent from you, increase your rent, or serve you with a three-day notice to pay rent or quit? And if they do you can take them to Court, even small claims Court and they can be ordered to not only fix the problems but pay you your actual damages as well as special damages of at least $100.00 and not more than $5,000.00, as well as paying your court costs, and also attorney fees if you file your lawsuit in either limited civil for up to $25,000.00 or unlimited civil for over $25,000.00 and retain an attorney to represent you. Did you know that if your local housing inspector informs your landlord that they need to fix certain major problems and they do not fix them within a certain period of time the law will
  3. 3. 3 presume that your residence is not habitable and if your landlord tries to evict you they will likely lose their case, the Court will reduce your rent based on the problems, and the landlord will have to pay your court costs, and attorney fees if you use one. This e-book was written by a freelance paralegal with over 14 years of experience in California civil litigation including unlawful detainers (evictions). The author previously worked in residential and commercial property management before becoming a paralegal so he knows the ins and outs of evictions. This e-book may not have a fancy cover with lots of pretty graphics or colors but it does have all of the information that you will need to force your landlord to correct any major problems affecting the habitability of your residence.
  4. 4. 4 There are numerous affirmative defenses available to a tenant in an unlawful detainer (eviction) proceeding in California.. One of the most powerful affirmative defenses available is the defense based on habitability of the house, apartment or other dwelling. This is due to the fact that the California Supreme Court has ruled that every residential rental agreement has an implied warranty of habitability that is independent of the tenant's obligation to pay rent. See Green v Superior Court (1974) 10 Cal. 3d 616, 631-632. This means that a landlord of residential premises must put the premises in a condition fit for human occupancy and must repair all subsequent dilapidations that render the premises untenantable. The landlord's duty to the tenant to provide habitable premises is nonwaivable. So even if a lease or rental agreement states that the tenant waives the provisions of the Civil Code relating to habitability that waiver is not valid. And if the problems are really severe and the landlord does not fix them within a reasonable period of time then the tenant may only have to pay reduced rent, or no rent at all, or simply move out and owe nothing to the landlord. A breach of the warranty of habitability is available as an affirmative defense for a tenant in an eviction action for nonpayment of rent. But it is not available in a UD action based on a 30- day notice to quit. Green v Superior Court, supra, 10 Cal.3d at 631; Knight v Hallsthammar (1981) 29 Cal.3d 46, 57. Numerous codes, statutes and regulations in California detail exactly what is required in order for a dwelling unit that is offered to rent or lease to be considered habitable. The following is a list of some of the major items.
  5. 5. 5 1. Hot water must be supplied to the plumbing fixtures at a temperature of not less than 110 degrees Fahrenheit. See California Uniform Housing Code, Article 5, Section 32(a). 2. Heating facilities must be provided capable of maintaining a minimum room temperature of 70 degrees Fahrenheit at a point three feet above the floor in all habitable rooms, and when the heating facilities are not under the control of the tenant or occupant of the building owner and/or manager, shall be required to provide that heat at a minimum temperature of 70 degrees Fahrenheit, 24 hours a day. These facilities shall be installed and maintained in a safe condition and in accordance with Chapter 37 of the Uniform Building Code, the Uniform Mechanical Code, and other applicable laws. No unvented fuel burning heaters shall be permitted. All heating devices or appliances shall be of the approved type. See California Uniform Housing Code, Article 5, Section 34(a). 3. An adequate number of appropriate receptacles with close fitting covers for garbage and rubbish as may be considered necessary by the enforcement agency shall be provided for the occupant of every dwelling unit by the owner or operator of every structure or building subject to this subchapter. Each receptacle shall be kept in a clean condition and in good repair. See California Uniform Housing Code, Article 5, Section 38. 4. Any building or portion thereof including any dwelling unit, guestroom or suite of rooms, or the premises on which the same is located, in which there exists any of the following listed conditions to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants thereof shall be deemed and hereby is declared to be a substandard building:
  6. 6. 6 (a) Inadequate sanitation shall include, but not be limited to, the following: (1) Lack of, or improper water closet, lavatory, or bathtub or shower in a dwelling unit. (2) Lack of, or improper water closets, lavatories, and bathtubs or showers per number of guests in a hotel. (3) Lack of, or improper kitchen sink. (4) Lack of hot and cold running water to plumbing fixtures in a hotel. (5) Lack of hot and cold running water to plumbing fixtures in a dwelling unit. (6) Lack of adequate heating. (7) Lack of, or improper operation of required ventilating equipment. (8) Lack of minimum amounts of natural light and ventilation required by this code. (9) Room and space dimensions less than required by this code. (10) Lack of required electrical lighting. (11) Dampness of habitable rooms. (12) Infestation of insects, vermin, or rodents as determined by the health officer. (13) General dilapidation or improper maintenance. (14) Lack of connection to required sewage disposal system. (15) Lack of adequate garbage and rubbish storage and removal facilities as determined by the health officer. (b) Structural hazards shall include, but not be limited to, the following:
  7. 7. 7 (1) Deteriorated or inadequate foundations. (2) Defective or deteriorated flooring or floor supports. (3) Flooring or floor supports of insufficient size to carry imposed loads with safety. (4) Members of walls, partitions, or other vertical supports that split, lean, list, or buckle due to defective material or deterioration. (5) Members of walls, partitions, or other vertical supports that are of insufficient size to carry imposed loads with safety. (6) Members of ceilings, roofs, ceilings and roof supports, or other horizontal members which sag, split, or buckle due to defective material or deterioration. (7) Members of ceiling, roofs, ceiling and roof supports, or other horizontal members that are of insufficient size to carry imposed loads with safety. (8) Fireplaces or chimneys which list, bulge, or settle due to defective material or deterioration. (9) Fireplaces or chimneys which are of insufficient size or strength to carry imposed loads with safety. (c) Any nuisance. (d) All wiring, except that which conformed with all applicable laws in effect at the time of installation if it is currently in good and safe condition and working properly. (e) All plumbing, except plumbing that conformed with all applicable laws in effect at the time of installation and has been maintained in good condition,
  8. 8. 8 or that may not have conformed with all applicable laws in effect at the time of installation but is currently in good and safe condition and working properly, and that is free of cross connections and siphonage between fixtures. (f) All mechanical equipment, including vents, except equipment that conformed with all applicable laws in effect at the time of installation and that has been maintained in good and safe condition, or that may not have conformed with all applicable laws in effect at the time of installation but is currently in good and safe condition and working properly. (g) Faulty weather protection, which shall include, but not be limited to, the following: (1) Deteriorated, crumbling, or loose plaster. (2) Deteriorated or ineffective waterproofing of exterior walls, roof, foundations, or floors, including broken windows or doors. (3) Defective or lack of weather protection for exterior wall coverings, including lack of paint, or weathering due to lack of paint or other approved protective covering. (4) Broken, rotted, split, or buckled exterior wall coverings or roof coverings. (h) Any building or portion thereof, device, apparatus, equipment, combustible waste, or vegetation that, in the opinion of the chief of the fire department or his deputy, is in such a condition as to cause a fire or explosion or provide a ready fuel to augment the spread and intensity of fire or explosion arising from any cause. (I) All materials of construction, except those which are specifically allowed or approved by this code, and which have been adequately maintained in good and safe condition. (j) Those premises on which an accumulation of weeds, vegetation, junk, dead
  9. 9. 9 organic matter, debris, garbage, offal, rodent harborages, stagnant water, combustible materials, and similar materials or conditions constitute fire, health, or safety hazards. (k) Any building or portion thereof that is determined to be an unsafe building due to inadequate maintenance, in accordance with the latest edition of the Uniform Building Code. ( l) All buildings or portions thereof not provided with adequate exit facilities as required by this code, except those buildings or portions thereof whose exit facilities conformed with all applicable laws at the time of their construction and that have been adequately maintained and increased in relation to any increase in occupant load, alteration or addition, or any change in occupancy. When an unsafe condition exists through lack of, or improper location of, exits, additional exits may be required to be installed. (m) All buildings or portions thereof that are not provided with the fire-resistive construction or fire-extinguishing systems or equipment required by this code, except those buildings or portions thereof that conformed with all applicable laws at the time of their construction and whose fire-resistive integrity and fire-extinguishing systems or equipment have been adequately maintained and improved in relation to any increase in occupant load, alteration or addition, or any change in occupancy. (n) All buildings or portions thereof occupied for living, sleeping, cooking, or dining purposes that were not designed or intended to be used for those occupancies. (o) Inadequate structural resistance to horizontal forces. "Substandard building" includes
  10. 10. 10 a building not in compliance with Section 13143.2. However, a condition that would require displacement of sound walls or ceilings to meet height, length, or width requirements for ceilings, rooms, and dwelling units shall not by itself be considered sufficient existence of dangerous conditions making a building a substandard building, unless the building was constructed, altered, or converted in violation of those requirements in effect at the time of construction, alteration, or conversion. See Health and Safety Code § 17920.3 5. The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine. See Civil Code § 1941. 6. A dwelling shall be deemed untenantable for purposes of Section 1941 if it substantially lacks any of the following affirmative standard characteristics or is a residential unit described in Section 17920.3 or 17920.10 of the Health and Safety Code: (a) Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors. (b) Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order. (c) A water supply approved under applicable law that is under the control of the tenant, capable of producing hot and cold running water, or a system that is under the control of the landlord, that produces hot and cold running water, furnished to appropriate fixtures,
  11. 11. 11 and connected to a sewage disposal system approved under applicable law. (d) Heating facilities that conformed with applicable law at the time of installation, maintained in good working order. (e) Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order. (f) Building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin. (g) An adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the time of the commencement of the lease or rental agreement, with the landlord providing appropriate serviceable receptacles thereafter and being responsible for the clean condition and good repair of the receptacles under his or her control. (h) Floors, stairways, and railings maintained in good repair. See Civil Code § 1941.1 7. (a) On and after July 1, 1998, the landlord, or his or her agent, of a building intended for human habitation shall do all of the following: (1) Install and maintain an operable dead bolt lock on each main swinging entry door of a dwelling unit. The dead bolt lock shall be installed in conformance with the manufacturer's specifications and shall comply with applicable state and local codes
  12. 12. 12 including, but not limited to, those provisions relating to fire and life safety and accessibility for the disabled. When in the locked position, the bolt shall extend a minimum of 13/16 of an inch in length beyond the strike edge of the door and protrude into the doorjamb. This section shall not apply to horizontal sliding doors. Existing dead bolts of at least one-half inch in length shall satisfy the requirements of this section. Existing locks with a thumb-turn deadlock that have a strike plate attached to the doorjamb and a latch bolt that is held in a vertical position by a guard bolt, a plunger, or an auxiliary mechanism shall also satisfy the requirements of this section. These locks, however, shall be replaced with a dead bolt at least 13/16 of an inch in length the first time after July 1, 1998, that the lock requires repair or replacement. Existing doors which cannot be equipped with dead bolt locks shall satisfy the requirements of this section if the door is equipped with a metal strap affixed horizontally across the midsection of the door with a dead bolt which extends 13/16 of an inch in length beyond the strike edge of the door and protrudes into the doorjamb. Locks and security devices other than those described herein which are inspected and approved by an appropriate state or local government agency as providing adequate security shall satisfy the requirements of this section. (2) Install and maintain operable window security or locking devices for windows that are designed to be opened. Louvered windows, casement windows, and all windows more than 12 feet vertically or six feet horizontally from the ground, a roof, or any other platform are excluded from this subdivision.
  13. 13. 13 (3) Install locking mechanisms that comply with applicable fire and safety codes on the exterior doors that provide ingress or egress to common areas with access to dwelling units in multifamily developments. This paragraph does not require the installation of a door or gate where none exists on January 1, 1998. (b) The tenant shall be responsible for notifying the owner or his or her authorized agent when the tenant becomes aware of an inoperable dead bolt lock or window security or locking device in the dwelling unit. The landlord, or his or her authorized agent, shall not be liable for a violation of subdivision (a) unless he or she fails to correct the violation within a reasonable time after he or she either has actual notice of a deficiency or receives notice of a deficiency. (c) On and after July 1, 1998, the rights and remedies of tenant for a violation of this section by the landlord shall include those available pursuant to Sections 1942, 1942.4, and 1942.5, an action for breach of contract, and an action for injunctive relief pursuant to Section 526 of the Code of Civil Procedure. Additionally, in an unlawful detainer action, after a default in the payment of rent, a tenant may raise the violation of this section as an affirmative defense and shall have a right to the remedies provided by Section 1174.2 of the Code of Civil Procedure. (d) A violation of this section shall not broaden, limit, or otherwise affect the duty of care owed by a landlord pursuant to existing law, including any duty that may exist pursuant to Section 1714. The delayed applicability of the requirements of subdivision (a) shall not affect a landlord's duty to maintain the premises in safe condition.
  14. 14. 14 (e) Nothing in this section shall be construed to affect any authority of any public entity that may otherwise exist to impose any additional security requirements upon a landlord. (f) This section shall not apply to any building which has been designated as historically significant by an appropriate local, state, or federal governmental jurisdiction. (g) Subdivisions (a) and (b) shall not apply to any building intended for human habitation which is managed, directly or indirectly, and controlled by the Department of Transportation. This exemption shall not be construed to affect the duty of the Department of Transportation to maintain the premises of these buildings in a safe condition or abrogate any express or implied statement or promise of the Department of Transportation to provide secure premises. Additionally, this exemption shall not apply to residential dwellings acquired prior to July 1, 1997, by the Department of Transportation to complete construction of state highway routes 710 and 238 and related interchanges. See Civil Code §1941.3. 8. The landlord is responsible for installing at least one usable telephone jack and maintaining the inside telephone wiring in good working order, shall ensure that the inside telephone wiring meets the applicable standards of the most recent National Electrical Code as adopted by the Electronic Industry Association, and shall make any required repairs. The lessor shall not restrict or interfere with access by the telephone utility to its telephone network facilities up to the demarcation point separating the inside wiring. "Inside telephone wiring" for purposes of this section, means that portion of the telephone wire that connects the telephone equipment at the customer's premises to the telephone network at a demarcation point determined by the
  15. 15. 15 telephone corporation in accordance with orders of the Public Utilities Commission. See Civil Code §1941.4 In order to avail themselves of the right to habitable premises, a tenant has to give either written or oral notice (written notice is much better) to the landlord or his agent of the problems. The landlord or his agent must be given a reasonable time to repair the problem or problems. Thirty (30) days is considered a reasonable time, although with really major problems a shorter time would be considered reasonable, such as lack of heat, no plumbing, no hot water, etc. Civil Code §1942 states that, (a) If within a reasonable time after written or oral notice to the landlord or his agent, as defined in subdivision (a) of Section 1962, 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 where the cost of such repairs does not require an expenditure more than one month's rent of the premises and deduct the expenses of such repairs from the rent when due, or the tenant may vacate the premises, in which case the tenant shall be discharged from further payment of rent, or performance of other conditions as of the date of vacating the premises. This remedy shall not be available to the tenant more than twice in any 12-month period. (b) For the purposes of this section, if a tenant acts to repair and deduct after the 30th day following notice, he is presumed to have acted after a reasonable time. The presumption established by this subdivision is a rebuttable presumption affecting the burden of
  16. 16. 16 producing evidence and shall not be construed to prevent a tenant from repairing and deducting after a shorter notice if all the circumstances require shorter notice. (c) The tenant's remedy under subdivision (a) shall not be available if the condition was caused by the violation of Section 1929 or 1941.2. (d) The remedy provided by this section is in addition to any other remedy provided by this chapter, the rental agreement, or other applicable statutory or common law. So the law allows tenants to repair a problem and deduct the amount from their rent provided that they comply with the provisions of Civil Code § 1942 as outlined above. Note that the “reapir and deduct” remedy can only be used by a tenant twice in any 12 month period, and the cost of the repairs cannot exceed one month’s rent. Or the tenant can simply vacate the premises and be discharged from paying any further rent starting from when they vacate the premises. Note that simply vacating the premises is a risky move as the landlord will most likely not agree and will try to go after the tenant in Court. Be very sure that you have a good case before you decide to just move. Have plenty of evidence that you gave proper notice, you waited a reasonable time, that the repairs were truly necessary, and did not exceed one month’s rent. In other words get your “ducks in a row” before you decide to simply leave. California law will presume that a landlord has breached the habitability requirements of Civil Code § 1941 if all of the following conditions exist: (1) The dwelling substantially lacks any of the affirmative standard characteristics listed
  17. 17. 17 in Section 1941.1, is deemed and declared substandard pursuant to Section 17920.3 of the Health and Safety Code, or contains lead hazards as defined in Section 17920.10 of the Health and Safety Code. (2) A public officer or employee who is responsible for the enforcement of any housing law has notified the landlord, or an agent of the landlord, in a written notice issued after inspection of the premises which informs the landlord of his or her obligation to abate the nuisance or repair the substandard or unsafe conditions identified under the authority described in paragraph (1). (3) The conditions have existed and have not been abated 60 days beyond the date of issuance of the notice specified in paragraph (2) and the delay is without good cause. (4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2. (b) The presumption specified in subdivision (a) does not arise unless all of the conditions set forth therein are proven, but failure to so establish the presumption shall not otherwise affect the right of the tenant to raise and pursue any defense based on the landlord's breach of the implied warranty of habitability. (c) The presumption provided in this section shall apply only to rental agreements or leases entered into or renewed on or after January 1, 1986. See Civil Code § 1942.3 If a tenant can show all of the conditions listed in Civil Code § 1942.3 apply in their case then the law will presume that the dwelling is not habitable and the tenant will have a valid affirmative defense and will most likely have their rent amount reduced to compensate them for
  18. 18. 18 the landlord’s failure to maintain the premises in a habitable condition. California law also states that a landlord cannot demand or collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit pursuant to subdivision (2) of Section 1161 of the Code of Civil Procedure, if all of the following conditions exist prior to the landlord's demand or notice: (1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling. (2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord's agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions. (3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail. (4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2. (b) (1) A landlord who violates this section is liable to the tenant or lessee for the actual
  19. 19. 19 damages sustained by the tenant or lessee and special damages of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000). (2) The prevailing party shall be entitled to recovery of reasonable attorney's fees and costs of the suit in an amount fixed by the court. (c) Any court that awards damages under this section may also order the landlord to abate any nuisance at the rental dwelling and to repair any substandard conditions of the rental dwelling, as defined in Section 1941.1, which significantly or materially affect the health or safety of the occupants of the rental dwelling and are uncorrected. If the court orders repairs or corrections, or both, the court's jurisdiction continues over the matter for the purpose of ensuring compliance. (d) The tenant or lessee shall be under no obligation to undertake any other remedy prior to exercising his or her rights under this section. (e) Any action under this section may be maintained in small claims court if the claim does not exceed the jurisdictional limit of that court. (f) The remedy provided by this section may be utilized in addition to any other remedy provided by this chapter, the rental agreement, lease, or other applicable statutory or common law. Nothing in this section shall require any landlord to comply with this section if he or she pursues his or her rights pursuant to Chapter 12.75 (commencing with Section 7060) of Division 7 of Title 1 of the Government Code. See Civil Code 1942.4. And if a tenant can show all of the conditions listed in Civil Code § 1942.4 apply in their case then the law will presume that the dwelling is not habitable and the landlord cannot collect
  20. 20. 20 any rent at all until they can show they have corrected the problems. They also cannot issue a three-day notice. If they do then the tenant can take them to Court to ask a Judge to award them actual damages as well as special damages of at least $100.00 and not more than $5,000.00, and also order the landlord to pay their attorney’s fees and costs they file your lawsuit in either limited civil for up to $25,000.00 or unlimited civil for over $25,000.00 and retain an attorney to represent them, as well as ordering the landlord to fix the problems. A tenant who does not have the money for an attorney can sue their landlord in small claims Court for the damages. Normally evictions are not allowed in small claims Court but as long as the total amount of the actual and special damages requested by the tenant does not exceed $10,000.00 the case can be filed in small claims Court pursuant to Civil Code § 1942.4(e). This is very advantageous for the tenant as the landlord will have to go to Court without an attorney, thus the tenant and landlord will be on a more equal footing. In an eviction proceeding where the tenant has raised the affirmative defense of the breach of habitability if the Court determines that a substantial breach of the warranty of habitability has occurred then the Court can declare the tenant to be the prevailing party, deny the landlord possession of the premises, and award the tenant their court costs and attorney fees if allowed by contract or statute. (a) In an unlawful detainer proceeding involving residential premises after default in payment of rent and in which the tenant has raised as an affirmative defense a breach of the landlord's obligations under Section 1941 of the Civil Code or of any warranty of habitability, the court shall determine whether a substantial breach of these obligations has occurred. If the court
  21. 21. 21 finds that a substantial breach has occurred, the court (1) shall determine the reasonable rental value of the premises in its untenantable state to the date of trial, (2) shall deny possession to the landlord and adjudge the tenant to be the prevailing party, conditioned upon the payment by the tenant of the rent that has accrued to the date of the trial as adjusted pursuant to this subdivision within a reasonable period of time not exceeding five days, from the date of the court's judgment or, if service of the court's judgment is made by mail, the payment shall be made within the time set forth in Section 1013, (3) may order the landlord to make repairs and correct the conditions which constitute a breach of the landlord's obligations, (4) shall order that the monthly rent be limited to the reasonable rental value of the premises as determined pursuant to this subdivision until repairs are completed, and (5) except as otherwise provided in subdivision (b), shall award the tenant costs and attorneys' fees if provided by, and pursuant to, any statute or the contract of the parties. If the court orders repairs or corrections, or both, pursuant to paragraph (3), the court's jurisdiction continues over the matter for the purpose of ensuring compliance. The court shall, however, award possession of the premises to the landlord if the tenant fails to pay all rent accrued to the date of trial, as determined due in the judgment, within the period prescribed by the court pursuant to this subdivision. The tenant shall, however, retain any rights conferred by Section 1174. (b) If the court determines that there has been no substantial breach of Section 1941 of the Civil Code or of any warranty of habitability by the landlord or if the tenant fails to pay all rent accrued to the date of trial, as required by the court pursuant to subdivision (a), then a judgment shall be entered in favor of the landlord, and the landlord shall be the prevailing party for the purposes of awarding costs or attorneys' fees pursuant to any statute or the contract of the
  22. 22. 22 parties. (c) As used in this section, "substantial breach" means the failure of the landlord to comply with applicable building and housing code standards which materially affect health and safety. (d) Nothing in this section is intended to deny the tenant the right to a trial by jury. Nothing in this section shall limit or supersede any provision of Chapter 12.75 (commencing with Section 7060) of Division 7 of Title 1 of the Government Code. See Code of Civil Procedure § 1174.2 If you get one thing from this e-book you need to understand that in order to use the affirmative defense that your residence is not habitable you will need to be able to document everything. Especially the following: 1. There is a major problem or problems of the kind listed above with your residence. 2. You gave your landlord notice, preferably written notice, of the problems. Or a local building or health inspector has given your landlord written notice of the problems. Check the phone book or online and call the local building and/or health inspector. If they inspect the building or residence and find major problems that will really help you in Court. 3. Your landlord has refused to do anything to fix the problems within a reasonable period of time. If you can document those three items listed above then and only then do you have a chance of winning in Court. Now we will go over how to assert your affirmative defense if your landlord tries to evict you. Once a tenant has been served with the Summons and Complaint for Unlawful Detainer
  23. 23. 23 they have five (5) calendar days to respond. Court holidays are not counted in calculating the five days, and if the last day to respond is a Saturday, Sunday or Court holiday the tenant has until the end of the next business day to file a response with the Court. Your answer should be filed on California Judicial Council Form UD-105, answer- Unlawful Detainer. This e-book assumes that you know how to fill out most of the answer so I will only concern myself with certain items on the answer. Check box 2(b) and state, “Defendant(s) deny that they owe any rent because landlord has breached the warranty of habitability.” Or “Defendants made needed repairs and deducted the cost from the rent.” Check box 3(a) on the first page, also check box 3(b) if you made repairs and deducted the cost from your rent. On page 2 at the top check the box that says “All facts are stated in attachment 3(j).” Also check box 4(b) and state”Fair rental value is excessive because landlord has breached the warranty of habitability.” Check boxes 5(c) and 5(d). Be sure to also date and sign the answer on page 2, and also date and sign the Verification. All defendants who are answering should date and sign the answer, only one Defendant has to sign the Verification. Now you need to use Form MC-025, attachment to Judicial Council form. At the top write in capital letters, “ATTACHMENT 3(j) TO ANSWER-UNLAWFUL DETAINER”. Then write in the facts which support your case. An example would be: “The landlord has breached the warranty of habitability because of the following: 1. On or about ______________ I notified the landlord that my heat did not work. The
  24. 24. 24 landlord has still not fixed the problem with my heat. 2. On or about _______________I notified the landlord that my plumbing did not work. The landlord has still not fixed the problem with my plumbing. 3. True and correct copies of my written notices to the landlord are attached hereto as Exhibit “A” and incorporated herein by reference. 4. On or about _______________the landlord was notified in writing by the local building/health inspector of problems with my residence. The landlord has still not fixed the problems mentioned in the letter. True and correct copies of the written notice to the landlord is attached as Exhibit “B” and incorporated herein by reference. Do not just use the example here. Use it as a guide and put in the dates and facts to fit your particular situation. Be sure to attach copies of any written notices that you gave to the landlord, or that the landlord received from the local building/health inspector. Attach Form MC-025 and its attachments to Form UD-105. Once every Defendant has dated and signed the answer and you have attached everything, make 2 copies of everything. You will need to have someone mail a copy of everything to the landlord or their attorney. That person must fill out and sign a proof of service. Use Form POS-030. All forms needed are available at http://www.courtinfo.ca.gov/forms Make 2 copies of the proof of service. Attach one to the package mailed to the landlord or their attorney. Staple the original answer and attachments together. Do the same with the copy. Take them to the Court for filing. Each Defendant answering must pay a filing fee, the fee is around
  25. 25. 25 $200.00 or so but some counties charge more. If you are unemployed or low income you may get a fee waiver. Go to http://www.courtinfo.ca.gov/forms The fee waiver forms are FW-001, FW- 001-INFO, and FW-003. Once your answer is filed you should use Form DISC-003 Form Interrogatories, Unlawful Detainer and send to the landlord or their attorney. Carefully read the questions and check the boxes that apply to your particular situation. Then have someone mail a copy to the landlord or their attorney. That person must again fill out and sign Form PS-030. You can mail this form in the same envelope that you use to mail the answer. You do not have to file this form with the Court. The landlord will have ten (10) days to answer the Form Interrogatories if you mail them. If they are personally delivered they will have five (5) days. If they do not answer you can ask the Court to order them to answer, or that they not be allowed to produce any evidence because they did not answer the Form Interrogatories.
  26. 26. 26 Copyright 2018 Stan Burman. All rights reserved. The author of this document , Stan Burman, is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products <strong>DISCLAIMER:</strong> Please note that the author of this document, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this document is NOT intended to constitute legal advice. These materials and information contained in this document have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this document is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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