The warranty of habitability, the landlord’s guarantee that he will
provide you a unit with more amenities than a cave or a cardboard box,
is implied in every lease, written or verbal. Unfortunately, many
landlords think their properties should perform like an annuity—that
the rent should just roll in, like interest, while the landlord does
nothing to maintain them.
When my landlord voluntarily replaced the roof on
my (his) building a couple of years ago I was blown away. It was the
first time in nearly 30 years of my life as a tenant that this
happened. It was the first time in my career as a tenant rights lawyer
that I’d heard of such a thing. Usually when my clients complained
about a leaking roof, the landlord’s response, after suggesting that
the tenant empty the buckets more often, was to jab some tar in the
hole. Every landlord has one…no, not a tar hole…an implied warranty of
habitability.
The warranty of habitability, the landlord’s
guarantee that he will provide you a unit with more amenities than a
cave or a cardboard box, is implied in every lease, written or verbal.
Unfortunately, many landlords think their properties should perform
like an annuity—that the rent should just roll in, like interest, while
the landlord does nothing to maintain them. After all, the lord already
did the work; he bought the property. I can’t count the number of times
tenants have told me when they request repairs that the landlord tells
them they can fix it themselves. Or better yet, tries to charge them
for repairs he has the legal duty to provide.
California
Civil Code §1941.1 provides a list of minimum requirements for a
habitable or tenantable dwelling. In other words, if the landlord
doesn’t provide or fix the items listed in the code, he’s breaking the
law. He is breaching the implied warranty of habitability in violation
of your lease, whther it's oral or written.
Roof leaks are
one of the most common tenant complaints. For some reason landlords,
especially the do-it-your-self types would rather spend thousands of
dollars and countless hours smearing Blackjack on the roof rather than
replacing it. These Cheese Balls spread more tar, one gallon at a time,
than the Exxon Valdez. Any professional roofer will tell you that you
can’t permanently fix a leaking roof in that manner. I had a client who
successfully withheld rent for over two years because the landlord
would not replace the roof and instead tried to dab it with tar. Don’t
try this without legal representation.
Roof leaks are also a
major cause of mold and mildew, but when you complain about the mold,
the landlord invariably will tell you to open the window while you’re
taking a shower. Which shower? The one from the ceiling in the living
room? The health risks from certain kinds of mold are well documented.
Cracks in your ceiling and peeling paint are another indication of a
roof leak. Peeling and chipping paint on the window frames can also
indicate water leaks, if not from the roof, the windows and window
frames. In old buildings, peeling paint can be a big problem because
the paint chips contain lead. Though lead started to be removed from
paint in the 1940s, only building built after 1978 are relatively free
of it. The layers of paint from the past do not simply disappear. When
the pail peels the old lead layers become exposed and introduce lead
into your environment. Lead is especially harmful to children and can
cause many health problems including brain damage.
Tenants
often come to me complaining about a lack of heat. The heater goes out
in the unit. The tenant informs the landlord and the landlord
empathetically shrugs his shoulders and offers to provide the tenant a
space heater rather than repair or (horror of horrors) installing a new
heater. Never mind that your electricity bill jumps to $700.00 a month.
There are actually some landlord lawyers who, with a straight face,
will tell you that this is a viable alternative. It is not. Civil Code
§1941.1(d) is clear that a unit is untenantable if it lacks “heating
facilities that conformed with applicable law at the time of
installation, maintained in good working order.” Space heaters are not
facilities and have never, ever conformed with applicable law.
Old buildings often have plumbing problems. When you inform the
landlord that your apartment has a six inch layer of excrement on the
floor because the plumbing backed up while you were away for the
weekend, the first thing the landlord asks is, “Have you been flushing
tampons down the toilet?” In one of our cases at trial, the landlord
testified that the hardwood floors were damaged in the when the kitchen
flooded. Of course, he blamed our clients because they had the audacity
to put cooked spaghetti in the garbage disposal. The last time I
checked most dwelling units are required to have functional indoor
plumbing. Sewer backups and leaks are the landlord’s responsibility.
I spoke to a tenant recently who showed me an email in which the
landlord stated that rats in the apartment was just a consequence of
urban living. What? Like the bubonic plague? Yes, millions of rats live
here, but they are not supposed to be able live with you. If you have
breaches in the building like holes in the walls, rats come in. And you
never get the adorable ones who’ll teach you how to cook like in the
movie Ratatouille. You get the rats that carry disease and crap and pee
all over the place. It is the landlord's responsibility to remove them,
period.
This ain’t Florida, thank god. Cockroaches are not
expected to live in your apartment. Cockroaches also carry diseases.
And they’re just plain disturbing. They are very difficult to
eradicate, but it is the landlord’s responsibility to get rid of them.
What have I missed? Windows that rattle and leak cold air; unfinished
repairs that leave exposed wall; smelly frayed carpet installed in
1916; gas leaks; exposed electrical wiring; leaky faucets; landlord
trash storage in the backyard; rotten decks; rotten stairs; rotten
floors; rotten windows; rotten doors; no second fire exit; unsecure
building; no locks; inadequate heat; failed steam valve spewing hot
steam throughout the unit; bedbugs (yuck)…all of these and the many
other issues I haven’t discussed can be violations of the implied
warranty of habitability.
The whole point of the implied
warranty of habitability is to prevent landlords charging you for what
your ancient ancestors could do for free—live in a cave. What can you
do to get what you’re paying for? Or make the landlord pay? I’ll give
you some suggestions next week.
I want to thank Claudio Bluer
of Austral Housing Inspections in Oakland, California for providing
some of the photos for this post. Claudio has been serving the tenant
community in the Bay Area for years, documenting habitability horrors
and helping tenants win their cases against negligent landlords.
Send me photos of your habitability horrors. I'd like to include them in an Evict This! Haunted House Gallery for Halloween.
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