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The apartment that I was leasing had an electrical fire and

Customer Question
we can no longer occupy...
The apartment that I was leasing had an electrical fire and we can no longer occupy the property unitl the repairs are made. We have no electric, gas or water. I was informed yesterday this could take up to 3 weeks to repair the property for me to come back. Can I use Civil Code 1942 to terminate my lease immediately so that I may find another place for me and my son to live? If so, how do I address this with my landlord.
Submitted: 10 months ago.Category: Landlord-Tenant
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Customer reply replied 10 months ago
Once I give notice...how many days do I have to remove all my property from the rental unit?
Answered in 6 minutes by:
1/5/2017
Lawyer: legalgems, attorney replied 10 months ago
legalgems
legalgems, attorney
Category: Landlord-Tenant
Satisfied Customers: 10,893
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Good Day!A few minutes please as I review your question so I can provide you with legal information. Thanks!

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Lawyer: legalgems, attorney replied 10 months ago

I am sorry to hear this;

if the fire is the result of the LL's negligence (ie not updating wires) then the LL is in breach of the implied warranty of habitability.

Every lease has an implied warranty of habilitability, and an implied warranty of quiet use and enjoyment.

Under the "implied warranty of habitability," the landlord is legally responsible for repairing conditions that seriously affect the rental unit's habitability; the landlord must repair substantial defects in the unit and ensure compliance with state and local building and health codes. The idea is that it is a safe living environment. However, the landlord is not responsible under the implied warranty of habitability for repairing damages that were caused by the tenant or the tenant's family, guests, or pets.
The implied covenant of quiet use and enjoyment means that the tenant is entitled to the peaceful use of the premises.

These are implied in every lease and cannot be waived.
Violation of these covenants/warranties constitute "constructive eviction"

This is codified in Civil Code 1942:

1942. (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 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. Generally if the unit is not occupied, notice will be provided that the tenant is vacating due to the habitability issue. If property was damaged or the landlord fails to return the security deposit the tenant can sue in small claims for up to $10,000:http://www.courts.ca.gov/selfhelp-smallclaims.htm The local health department will send out an inspector and can deem the unit uninhabitable and that can help in regards ***** ***** that the tenant will not be held liable for rent. The tenant must remove the property simultaneously with the moving out date; or they can request partial rent for the portion of the unit that still has their belongings.

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Customer reply replied 10 months ago
The electrical fire was caused by faulty wiring from the city that caused several units electrical panels to blow and catch on fire. The outside light fixtures and water heaters are all damaged. We do not know when they will be repaired, but we can't live there with no electrical or water. 6 tenants have been put out. They offered a hotel room, but have been horrible about comminicating what other expenses will be paid. I have a child and a pet, so living out of a hotel was very inconvenient. I am currently staying with a family member...but this can only be temporary. We are having to incur a lot of additional expenses by eating out and driving extra distance to work now.
This is a very stressful situtaion as I am displaced with my family and they are saying it will be weeks before they get Edison to replace the underground wiring and the buildings be rewired.
Under these circumstances, can I give the landlord notice under Civil Code 1942?
Lawyer: legalgems, attorney replied 10 months ago

The issue will come down to what the judge decides a "reasonable person" would do under those circumstances;

if the lease is near expiration, presumably the landlord (LL) would agree to an early termination as that would save them the expense of a motel

If however, the LL does not agree to early termination and the tenant moves out and the LL sues for rent, the tenant could argue that the LL was not communicative about the arrangements; this would need to be documented. Similarly, if the LL agreed to pay motel/pet lodging, then the court would likely require the tenant to accept that as a reasonable accommodation.

Unfortunately it comes down to the individual judge to determine what is reasonable under the circumstances; and with the lease expiring soon, it can go either way. The impetus would likely be whether the tenant can document that the motel was a hardship due to location, or that the LL was not communicative as to possible solutions.

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Lawyer: legalgems, attorney replied 10 months ago

Hello again; just checking in to see how things worked out;
if you have further questions please don't hesitate to reach out to me here on Just Answer.
Thanks!

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