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Ask Barrister Your Own Question

Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 23395
Experience:  14 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 24+ yrs
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On 4/14/13 I fell down the stairs in the rental townhome that

Customer Question

On 4/14/13 I fell down the stairs in the rental townhome that I live in due to the end of the stair breaking off and I fell down 5 stairs injurying myself. I contacted the owner immediately and he ask me what do you want me to do about it? so I contacted the city of san diego code enforcement and the inspector came out and said it was unsafe and sent a violation notice to the owner and demanded he fixed it by 5/22/13. The owner then emailed and forwarded the citation to us and demanded that we repair the stairs. We have withheld rent due to his lack of concern for our children and our safety. He is coming out tomorrow to repair the stairs. my question is when do I have to pay him his rent and how much?
Submitted: 1 year ago.
Category: Legal
Expert:  Barrister replied 1 year ago.
Hello and thank you for using JA! My goal is to provide you with excellent service and help with your legal problem.
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According to the CA Dept of Consumer Affairs, a tenant is allowed to withhold the rent under CA law if the landlord does not fix serious defects that violate the implied warranty of habitability. In order to violate this implied warranty, the defects must be serious and affect the tenant's health or safety. However, once the tenant notifies the landlord of the defect, the landlord has a "reasonable time" to fix it. If he doesn't fix it, the tenant can withhold rent until the repair is made. So technically you have to demand that he fix it and then if he doesn't, you withhold rent.
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As for how much you can withhold, this is tricky because the goal of withholding rent is to get the landlord to make repairs. Once he does so, he is entitled to his rent. So if the stairs were unusable due to the damage, that could justify a substantial deduction in the month's rent if you weren't able to use the upstairs. But if the broken stair just essentially required you to be careful not to trip on it, then it would only justify a token deduction of maybe 5%. There is no set rule on how much someone can deduct and it is typically agreed on by landlord and tenant. If they can't agree and landlord tries to evict based on nonpayment, it is up to the judge to decide if the amount withheld is reasonable or not.
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However, if you suffered injuries due to the stair breaking and you did nothing to cause the broken stair, then you can sue the landlord for the cost of any treatment for any injuries you suffered in small claims court.
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Thanks.

Barrister

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If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

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I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.

Customer: replied 1 year ago.

So what you are saying is we have to pay the entire rent for the month, even though it is a hazard and we are required to use them many times a day due our bedrooms and shower being upstairs. We do have an injury lawyer and he advised us not to pay the rent until it is repaired but he will not represent us in that part of the lawsuit because he does not deal with property issues. So what you are saying is that we will be subject to an eviction notice and going to court for the judge to decide the rent issue. We have told him over and over about the stairs and he never cared.

Expert:  Barrister replied 1 year ago.
Essentially the way the law works is that you have to have suffered diminished use of the property due to the defect in order to be able to deduct for it. So if you have a one bathroom house and one is clogged due to the landlord's poor maintenance, then that would justify a pretty severe deduction since it affects the entire habitability of the house.
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But a broken step, although potentially dangerous if you didn't know about it, probably wouldn't keep you from using the upstairs, downstairs, bathrooms, kitchen, etc. You just have to make sure everyone is careful when using the stairs.
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So it is all about degrees of diminished value. To be honest with you, it is pretty unlikely that a judge would agree that the broken step kept you from being able to continue using the dwelling or diminshed it's value very much. If your rent was $1000, I would opine a judge might uphold a $50 deduction for the inconvenience. I just don't see a judge taking very much off your rent due to a broken step.
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Thanks.

Barrister

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.

If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

.

I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.

Customer: replied 1 year ago.

I just do not understand why I have to pay the full amount or close to the full amount due to the negligence of the owner, this is not the first stair to break and we have notified him of the first one and he never took action. The stairs are not installed properly and he is being forced to repair them, and we are concerned that we and our children will get injured or worse. We have always paid our rent on time and we have other concerns like vermin and roaches in the place and he has done little to take care of the problem. We have had to pay for sprays and traps out of our pockets. So I think that we are just going to let him sue us in court. Our lease is up in a month anyways.

Expert:  Barrister replied 1 year ago.
If there are other problems that affect the habitability of the dwelling, make sure you document them with lots of pictures so if the landlord sues you, you can defend and show the conditions of the dwelling.
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I can't say if it is fair or right, I can just say that having represented tenants and landlords and having been a landlord myself for over 24 years, that is how the judge will likely decide. He will ask you if you could still use the stairs if you were careful. You will say "yes", then he will ask you what part of the house you couldn't use because of the broken stair. Then if you can't give a good answer, he rules against you and you can end up with an eviction on your record. This can make it much harder to rent somewhere else later on.
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So if you are going to go this route, you can expect the landlord to serve you with a 3 day notice to pay or vacate and then start the unlawful detainer process. It would be a good idea to start looking for a new place pretty quickly so you can get one under lease before the landlord gets an unlawful detainer order against you as many landlords won't rent to someone with a recent UD order. You will have about 20 days from the time the 3 day notice is served before the landlord can have the sheriff physically evict you so you will need to move quickly to secure another dwelling.
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Thanks
Barrister

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