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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 100052
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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There's an unbearable odor permeating in the living room of

Customer Question

There's an unbearable odor permeating in the living room of a 2bd room unit that's nauseating so much so that I can no longer live in this unit that I rented on the first of March. I've tried ridding the smell by placing scented candles throughout the home to no avail. Since there is another similar unit albeit at a higher rent available in this complex, I offered to move into it but the rental agent wants me to continue paying rent on the unit I'm vacating until the end of April. Other visitors to my home also notice the odd odor. What are my options ? The rent I'm currently paying is over $3,300
Submitted: 8 months ago.
Category: Real Estate Law
Expert:  Ely replied 8 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

What state is this in, please?

Customer: replied 8 months ago.
California
Expert:  Ely replied 8 months ago.

Thank you.

You do have rights here. Under California's Cal. Civ. Code §§1941.1, 1941.3, 1941.4, 1174.2, the landlord is supposed to provide a LIVABLE space. If not, then you have certain rights. However, it depends on what you wish to do. You have several options.

WITHHOLDING
By law, a tenant is allowed to withhold (stop paying) some or all of the rent if the landlord does not fix serious defects that violate the implied warranty of habitability. In order for the tenant to withhold rent, the defects or repairs that are needed must be more serious than would justify use of the repair and deduct remedy. The defects must be substantial - they must be serious ones that threaten the tenant's health or safety. The defects that were serious enough to justify withholding rent in Green v. Superior Court, (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704]. See Hyatt v. Tedesco (2002) 96 Cal.App.4th Supp. 62 [117 Cal.Rptr.2d 921 are listed below as examples:

Collapse and nonrepair of the bathroom ceiling.
Continued presence of rats, mice, and cockroaches.
Lack of any heat in four of the apartment's rooms.
Plumbing blockages.
Exposed and faulty wiring.
An illegally installed and dangerous stove.

To use this remedy, one has to send a letter TO THE LANDLORD or the management company that states that unless this is fixed in a reasonable amount of time, the withholding remedy will be executed. Let me know if you need a sample letter.

REPAIR AND DEDUCT
The "repair and deduct" remedy allows a tenant to deduct money from the rent, up to the amount of one month's rent, to pay for repair of defects in the rental unit.This remedy covers substandard conditions that affect the tenant's health and safety, and that substantially breach the implied warranty of habitability. Examples might include a leak in the roof during the rainy season, no hot running water, or a gas leak.

As a practical matter, the repair and deduct remedy allows a tenant to make needed repairs of serious conditions without filing a lawsuit against the landlord. Because this remedy involves legal technicalities, it's a good idea for the tenant to talk to a lawyer, legal aid organization, or tenants' association before proceeding.

The basic requirements and steps for using the repair and deduct remedy are as follows:

1. The defects must be serious and directly related to the tenant's health and safety.
2. The repairs cannot cost more than one month's rent.
3. The tenant cannot use the repair and deduct remedy more than twice in any 12-month period.
4. The tenant or the tenant's family, guests, or pets must not have caused the defects that require repair.
5. The tenant must inform the landlord, either orally or in writing, of the repairs that are needed.
6. The tenant must give the landlord a reasonable period of time to make the needed repairs - normally 7 to 10 days.

If this is not done, one can repair and deduct. Let me know if you need a sample letter.

ABANDONMENT
Instead of using the other remedies, a tenant can abandon (move out of) a defective rental unit. This remedy is called the" abandonment" remedy. A tenant might use the abandonment remedy where the defects would cost more than one month's rent to repair, but this is not a requirement of the remedy. The abandonment remedy has most of the same requirements and basic steps as the repair and deduct remedy.

In order to use the abandonment remedy, the rental unit must have substandard conditions that affect the tenant's health and safety, and that substantially breach the implied warranty of habitability (see above). If the tenant uses this remedy properly, the tenant is not responsible for paying further rent once he or she has abandoned the rental unit.

The basic requirements and steps for lawfully abandoning a rental unit are:

1. The defects must be serious and directly related to the tenant's health and safety.
2. The tenant or the tenant's family, guests, or pets must not have caused the defects that require repair.
3. The tenant must inform the landlord, either orally or in writing, of the repairs that are needed.
4. The tenant must give the landlord a reasonable period of time to make the needed repairs.
What is a reasonable period of time? This depends on the defects and the types of repairs that are needed. The law usually considers 30 days to be reasonable, but a shorter period may be considered reasonable, depending on the circumstances. For example, if tree roots block the main sewer drain and none of the toilets or drains work, a reasonable period might be as little as one or two days.
5. If the landlord doesn't make the repairs within a reasonable period of time, the tenant should notify the landlord in writing of the tenant's reasons for moving and then actually move out. The tenant should return all the rental unit's keys to the landlord. The notice should be mailed or delivered in hand. The tenant should keep a copy of the notice.

It's a good idea, but not a legal requirement, for the tenant to give the landlord written notice of the tenant's reasons for moving out. The tenant's letter may discourage the landlord from suing the tenant to collect additional rent or other damages. A written notice also documents the tenant's reasons for moving, which may be helpful in the event of a later lawsuit. If possible, the tenant should take photographs or a video of the defective conditions or have local health or building officials inspect the rental unit before moving. The tenant should keep a copy of the written notice and any inspection reports and photographs or videos. *

*CA Dept of Consumer Affairs.

SUMMARY
So you have these three remedies under CA law. If you want to know more about one of them, simply REPLY and we can go from there, and/or if you need a sample letter for any of the choices, likewise use REPLY. The problem is that the odor has to be so strong, so as to make the property simply unbearable. Otherwise, it may or may not qualify under warranty of habitability since the doctrine is geared more towards safety... but there is a subjective matter to it and it would be up to the Court in the end.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Expert:  Ely replied 8 months ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!