Whether it’s ignoring a reported bug infestation or leaving electrical wiring dangerously exposed, a landlord’s failure to make necessary repairs may render the premises uninhabitable. Although there are many legal remedies available for a breach of the warranty of habitability, your initial duties as a tenant’s attorney is to simultaneously safeguard the tenant’s well-being and preserve any relevant claims.
Whatever legal course of action you ultimately choose, take these three preliminary steps to protect your client and his or her potential remedies:
- Collect evidence of the defects.
- Photographs and Videos. Document the cause and extent of the problem. Make copies of any photographs taken for future use as trial evidence. Video evidence may be particularly compelling, depending on the nature of the defects (e.g., leaking roofs, roach nests).
- Estimated Costs. Instruct the client to itemize losses suffered and to estimate the cost of repairing or replacing the defect. To the extent possible, support itemized expenses with receipts and written estimates.
- Experts. If the defective conditions are substantial and require immediate remedial work, engage an appropriate expert to conduct tests and draft a report before the tenant vacates. Crucial evidence may otherwise be destroyed during repair work.
- Communications. Obtain copies of all previous communications between the tenant and the landlord, managers, or building inspectors. Pay particular attention to any communication that contradicts your client’s story. Similarly, allow the tenant to review any of your correspondences to the landlord for accuracy—misstating or overstating the situation is likely to anger, rather than persuade, the landlord.
- Inform applicable building or health inspectors. If the unit is in urgent need of structural repairs or otherwise presents an immediate threat to the tenant’s health or safety, contact the applicable building or health inspection department. A certified copy of a citation from a governmental agency will not only help compel the landlord to address the defect, but will serve as strong evidence at trial or during settlement negotiations should the landlord fail to do so.
- Contact the landlord. Many of the remedies available for a breach of habitability require notice to the landlord. See, e.g., CC §1942 (“repair-and-deduct”); Green v Superior Court (1974) 10 C3d 616 (rent withholding; abandonment). Even if the tenant has already informed the landlord of the defects, write a letter specifying the conditions requiring repair, the date by which the tenant expects the repairs to be completed, and the remedies that may be invoked should the defects not be addressed in a timely manner. You should also warn the landlord of the dangers of filing an unlawful detainer and discourage the landlord from any other retaliatory conduct. Deliver the letter in a manner specified in the lease. If you anticipate unresponsiveness or a retaliatory reaction, send additional copies to any relevant management company, other owners of record, local rent control agencies, city or county building departments, and the landlord’s attorney, if any.
For more on tenant’s claims and defenses related to a landlord’s breach of the warranty of habitability, see CEB’s California Landlord-Tenant Practice, chaps 3, 5, and 10. On pursuing or defending an unlawful detainer action, check out Handling Unlawful Detainers, California Eviction Defense Manual. All three titles are included in the over 25 titles that make up CEB’s Real Property Law OnLAW Library.
Pursuing or defending an unlawful detainer action is also covered in CEB’s Unlawful Detainer Actions program, available on demand.
Other CEBblog™ posts you may find useful:
- How Tenants Can Get Remedies for Habitability Violations and Nuisances
- Remedies for a Lurking Landlord
- Do’s and Don’ts of Tenant Screening
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