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I signed a 15 month lease just recently on Nov 4th. We moved…

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I signed a 15 month...
I signed a 15 month lease just recently on Nov 4th. We moved in later that same day. I was very clear that I was specifically looking for a home with no water damage or plumbing/mold issues, due to a serious health issue. The assured me that the house is as clean as a . house can be, House appearedvery clean (new carpets and new paint, etc.)4 bed/4 bath house. Within the first 3 weeks we had a leak under sink, leak behind toilet, windows that don't lock, all 4 toilets "running", a visit from the water district due to non stop water flow to house, the shower door fell off (onto my foot while getting out of shower), all toilets clogging and have to be plunged almost daily, evidence of mold under kitchen sick...(obviously had been painted over, as documented by the mold inspector) evidence of water damage under 4 sinks total, and under dining room and bedroom carpet, even though carpet is new, etc.I have had to pay for 2 mold inspections at this point and have been without various rooms of the house at different times, not to mention my "free property management services" . (JK) . I am supposed to be making a rent pmt (my first after the initial). I emailed a letter documentating all of the issues and the time spent and the fact that the home is not as described, etc. I could not pay my rent on Dec 1st because lease does not have address or bank info, etc. I only have names and emails of owners. They emailed me back and said pay full rent as described in lease. My view is that they have not lived up to their end of the lease, as I certainly did not get what I thought I was getting. I asked for a rent discount until all issues are resolved. They are ignoring me. Mold remediation starts tomorrow and downstairs will be unusable. * . Do I have to pay full rent??? As it turns out, they know about many of these issues before i brought it to their attention, but just didn't deal with things. (apparently they knew there were water issues, and called water district about their bill which was 10 times higher than it should have been, yet never addressed the cause. They simply asked me to put bill in my name and never disclosed. They also (or their painter) painted over the mold, no disclosure. The handy man told me he told them that the shower door was going to fall off, as it is all coroded, but he thought it would last more than 2 weeks. The owner told me all of the toilets had been running, but that he just did not have time to deal with them, etc. Don't they at LEASt have to reimburse me for the $ I spent on mold inspectors, given that my instinct was correct and there is mold?Without access to the kitchen we can not make meals and will have to eat out 3 meals per day. (We are living upstairs only due to mold remediation. Don’t they have to help with this? They say that because they are slowly addressing the issues, all is good. My point is that the house was NOT ready to be leased out, they knew I had sensitivities to mold yet did not disclose any of the water damage issues, and that they are using me as a free property manager. I asked abt water damage and mold prior to signing lease. I feel taken advantage of and don't think this can be legal to hold me to full rent. Is it? They say it is. Rent was due on the 1st but they never even told me where to send it until last night. No address or account info in lease. But, I do need to do SOMETHING today. Thoughts? I understand the implied warranty of habitability and i believe they have broken it: My Q is do I pay any rent today, and if so how much? How do I calculate what is fair or likely to be legal? I am assuming this will end with me moving out at some point, as soon as I can come up with a plan B. Thank you ~
Submitted: 4 months ago.Category: Landlord-Tenant
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12/6/2017
Lawyer: Attorney2, Attorney replied 4 months ago
Attorney2
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Category: Landlord-Tenant
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Welcome to JA and thank you for your question. I will be the Attorney that will be assisting you. Can you tell me the state that your question pertains to?

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Customer reply replied 4 months ago
Hi there ~ . I am in CA
Thanks
Lawyer: Attorney2, Attorney replied 4 months ago

You are correct this is a habitability issue. Let me provide a link that sets out all of you legal rights. One moment please.

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Lawyer: Attorney2, Attorney replied 4 months ago

"If a tenant believes that his or her rental unit needs repairs, and that the landlord is responsible for the repairs under the implied warranty of habitability, the tenant should notify the landlord. Since rental units typically are business investments for landlords, most landlords want to keep them safe, clean, attractive, and in good repair.

It's best for the tenant to notify the landlord of damage or defects by both a telephone call and a letter. The tenant should specifically describe the damage or defects and the required repairs in both the phone call and the letter. The tenant should date the letter and keep a copy to show that notice was given and what it said. If the tenant gives notice to the landlord by e-mail or fax, the tenant should follow up with a letter. (See "Giving the landlord notice".)

The tenant should send the letter to the landlord, manager, or agent by certified mail with return receipt requested. Sending the notice by certified mail is not required by law, but is a very good idea. Or, the tenant (or a friend) may personally deliver the notice to the landlord, manager, or agent and ask for a receipt to show that the notice was received. The tenant should keep a copy of the notice and the receipt, or some other evidence that the notice was delivered. (See "Giving the landlord notice".)

If the landlord doesn't make the requested repairs, and doesn't have a good reason for not doing so, the tenant may have one of several remedies, depending on the seriousness of the repairs. These remedies are discussed in the rest of this section. Each of these remedies has its own risks and requirements, so the tenant should use them carefully.

The "repair and deduct" remedy

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.156 This remedy covers substandard conditions that affect the tenant's health and safety, and that substantially breach the implied warranty of habitability.157(See discussion of 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. 1. The defects must be serious and directly related to the tenant's health and safety.158
  2. 2. The repairs cannot cost more than one month's rent.
  3. 3. The tenant cannot use the repair and deduct remedy more than twice in any 12-month period.
  4. 4. The tenant or the tenant's family, guests, or pets must not have caused the defects that require repair.
  5. 5. The tenant must inform the landlord, either orally or in writing, of the repairs that are needed. (See "Giving the landlord notice".)
  6. 6. 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 situation. For example, if the furnace is broken and it's very cold outdoors, two days may be considered reasonable (assuming that a qualified repair person is available within that time period).
  1. 7. If the landlord doesn't make the repairs within a reasonable period of time, the tenant may either make the repairs or hire someone to do them. The tenant may then deduct the cost of the repairs from the rent when it is due. The tenant should keep all receipts for the repairs.
  • It's a good idea, but not a legal requirement, for the tenant to give the landlord a written notice that explains why the tenant hasn't paid the full amount of the rent. The tenant should keep a copy of this notice.

Risks: The defects may not be serious enough to justify using the repair and deduct remedy. In that event, the landlord can sue the tenant to recover the money deducted from the rent, or can file an eviction action based on the nonpayment of rent. If the tenant deducted money for repairs not covered by the remedy, or didn't give the landlord proper advance notice or a reasonable time to make repairs, the court can order the tenant to pay the full rent even though the tenant paid for the repairs, or can order that the eviction proceed.

The landlord may try to evict the tenant or raise the rent because the tenant used the repair and deduct remedy. This kind of action is known as a "retaliatory eviction" (see section on Retaliatory Eviction). The law prohibits this type of eviction, with some limitations.159

The "abandonment" remedy

Instead of using the repair and deduct remedy, 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,160 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.161

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.162 (See discussion of the implied warranty of habitability.) 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.163

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

  1. 1. The defects must be serious and directly related to the tenant's health and safety.164
  2. 2. The tenant or the tenant's family, guests, or pets must not have caused the defects that require repair.
  3. 3. The tenant must inform the landlord, either orally or in writing, of the repairs that are needed. (See "Giving the landlord notice," below).
  4. 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.
  1. 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 as explained in "Giving the landlord notice" below. 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.

Risks: The defects may not affect the tenant's health and safety seriously enough to justify using the remedy. The landlord may sue the tenant to collect additional rent or damages.

The "rent withholding" remedy

A tenant may have another option for getting repairs made - the "rent withholding" remedy.

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.165 (See discussion of the implied warranty of habitability.) In order for the tenant to withhold rent, the defects or repairs that are needed must be moreserious than would justify use of the repair and deduct and abandonment remedies. The defects must be substantial - they must be serious ones that threaten the tenant's health or safety.166

The defects that were serious enough to justify withholding rent in Green v. Superior Court167 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.

In the Green case, all of these defects were present, and there also were many violations of the local housing and building codes. In other situations, the defects that would justify rent withholding may be different, but the defects would still have to be serious ones that threaten the tenant's health or safety.

In order to prove a violation of the implied warranty of habitability, the tenant will need evidence of the defects that require repair. In the event of a court action, it is helpful to have photographs or videos, witnesses, and copies of letters informing the landlord of the problem.

Before the tenant withholds rent, it is a good idea to check with a legal aid organization, lawyer, housing clinic, or tenant program to help determine if rent withholding is the appropriate remedy.

The basic requirements and steps for using the rent withholding remedy are:

  1. 1. The defects or the repairs that are needed must threaten the tenant's health or safety.168
  • The The defects must be serious enough to make the rental unit uninhabitable. For example, see the defects described in the discussion of the Green case above.
  1. 2. The tenant, or the tenant's family, guests, or pets must not have caused the defects that require repair.
  2. 3. The tenant must inform the landlord either orally or in writing of the repairs that are needed. (See "Giving the landlord notice," below).
  3. 4. The tenant must give the landlord a reasonable period of time to make the repairs.
  • What is a reasonable period of time? This depends on the defects and the type of repairs that are needed.
  1. 5. If the the landlord doesn't make the repairs within a reasonable period of time, the tenant can withhold some or all of the rent. The tenant can continue to withhold the rent until the landlord makes the repairs.
  • How much rent can the tenant withhold? While the law does not provide a clear test for determining how much rent is reasonable for the tenant to withhold, judges in rent withholding cases often use one of the following methods. These methods are offered as examples.

Percentage reduction in rent: The percentage of the rental unit that is uninhabitable is determined, and the rent is reduced by that amount. For example, if one of a rental unit's four rooms is uninhabitable, the tenant could withhold 25 percent of the rent. The tenant would have to pay the remaining 75 percent of the rent. Most courts use this method.

Reasonable value of rental unit: The value of the rental unit in its defective state is determined, and the tenant withholds that amount. The tenant would have to pay the difference between the rental unit's fair market value (usually the rent stated in the rental agreement or lease) and the rental unit's value in its defective state.169

  1. 6. The tenant should save the withheld rent money and not spend it. The tenant should expect to have to pay the landlord some or all of the withheld rent.
  • If the tenant withholds rent, the tenant should put the withheld rent money into a special bank account (called an escrow account). The tenant should notify the landlord in writing that the withheld rent money has been deposited in the escrow account, and explain why.

Depositing the withheld rent money in an escrow account is not required by law, but is a very good thing to do for three reasons.

First, as explained under "Risks" below, rent withholding cases often wind up in court. The judge usually will require the tenant to pay the landlord some reduced rent based on the value of the rental unit with all of its defects. Judges rarely excuse payment of all rent. Depositing the withheld rent money in an escrow account assures that the tenant will have the money to pay any "reasonable rent" that the court orders. The tenant will have to pay the rent ordered by the court five days (or less) from the date of the court's judgment.

Second, putting the withheld rent money in an escrow account proves to the court that the tenant didn't withhold rent just to avoid paying rent. If there is a court hearing, the tenant should bring rental receipts or other evidence to show that he or she has been reliable in paying rent in the past.

Third, most legal aid organizations and lawyers will not represent a tenant who has not deposited the withheld rent money in an escrow account.

Sometimes, the tenant and the landlord will be able to agree on the amount of rent that is reasonable for the time when the rental unit needed repairs. If the tenant and the landlord can't agree on a reasonable amount, the dispute will have to be decided in court, or resolved in an arbitration or mediation proceeding (see section on Arbitration and Mediation).

Risks: The defects may not be serious enough to threaten the tenant's health or safety. If the tenant withholds rent, the landlord may give the tenant an eviction notice (a three-day notice to pay the rent or leave). If the tenant refuses to pay, the landlord will probably go to court to evict the tenant. In the court action, the tenant will have to prove that the landlord violated the implied warranty of habitability.170

If the tenant wins the case, the landlord will be ordered to make the repairs, and the tenant will be ordered to pay a reasonable rent. The rent ordinarily must be paid five days or less from the date of the court's judgment. If the tenant wins, but doesn't pay the amount of rent ordered when it is due, the judge will enter a judgment for the landlord, and the tenant probably will be evicted. If the tenant loses, he or she will have to pay the rent, probably will be evicted, and may be ordered to pay the landlord's attorney's fees.

There is another risk of using rent withholding: if the tenant doesn't have a lease, the landlord may ignore the tenant's notice of defective conditions and seek to remove the tenant by giving him or her a 30-day or 60-day notice to move. This may amount to a "retaliatory eviction" (see section on Retaliatory Actions, Evictions and Discrimination).171 The law prohibits retaliatory evictions, with some limitations.172

Giving the landlord notice

Whenever a tenant gives the landlord notice of the tenant's intention to repair and deduct, withhold rent, or abandon the rental unit, it's best to put the notice in writing. The notice should be in the form of a letter, and can be typed or handwritten. The letter should describe in detail the problem and the repairs that are required. The tenant should sign and date the letter and keep a copy.173

The tenant might be tempted to send the notice to the landlord by e-mail or fax. The laws on repairs specify that the tenant may give the landlord notice orally or in writing, but do not mention e-mail or fax. To be certain that the notice complies with the law, the tenant should follow up any e-mailed or faxed notice with a letter describing the damage or defects and the required repairs.

The letter should be sent to the landlord, manager, or agent by certified mail (return receipt requested). Sending the letter by certified mail is not required by law, but is a very good idea. Or, the tenant (or a friend) may personally deliver the notice to the landlord, manager, or agent. The tenant should ask for a signed and dated receipt showing that the notice was received, or ask the landlord to date and sign (or initial) the tenant's copy of the letter to show that the landlord received the notice. Whatever the method of delivery, it's important that the tenant have proof that the landlord, or the landlord's manager or agent, received the notice.

The copy of the letter and the receipt will be proof that the tenant notified the landlord, and also proof of what the notice said. Keep the copy of the letter and the receipt in case of a dispute with the landlord.

The landlord or agent may call the tenant to discuss the request for repairs or to schedule a time to make them. It's a good idea for the tenant to keep notes of any conversations and phone calls about the request for repairs. During each conversation or immediately after it, the tenant should write down the date and time of the conversation, what both parties said, and the date and time that the tenant made the notes. Important: Neither the tenant nor the landlord can tape record a telephone conversation without the other party's permission17" http://www.dca.ca.gov/publications/landlordbook/repairs.shtml

I have more in layman's terms.

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Lawyer: Attorney2, Attorney replied 4 months ago
Ask Your Own Landlord-Tenant Question
Lawyer: Attorney2, Attorney replied 4 months ago

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Thank you for your consideration.

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Lawyer: Attorney2, Attorney replied 4 months ago

Do you have any additional questions for me?

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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