This article outlines the respective duties of the landlord and tenant to care for and maintain leased property, and the tenant’s remedies should the landlord fail to perform.


Tenant’s obligations and remedies

A landlord and a tenant enter into a lease agreement for a furnished unit in an apartment complex. The lease agreement contains a provision stating the landlord will maintain the premises and common areas in a safe and sanitary condition, and comply with all applicable ordinances and regulations. [See first tuesday Form 550 §6.2]

The lease further provides for the tenant to keep the unit clean and sanitary, and properly operate all electrical, gas and plumbing fixtures. [See first tuesday Form 550 §§5.3, 5.4]

Before the tenant takes possession, the resident manager and the tenant conduct a “walk-through” of the unit. They agree on the condition of the premises. The tenant and the resident manager complete a condition of premises form which is attached as an addendum to the lease agreement and signed by the tenant. [See first tuesday Form 560]

On the condition of premises form, the tenant notes any defects existing on the premises. For example, the tenant marks if appliances are dented, screens have holes or are missing from windows, plumbing fixtures are broken or leaking, linoleum is peeling or damaged, carpeting has stains, chipped paint, etc.

Since the unit is furnished, the tenant and the resident manager also complete a condition of furnishings addendum during the “walk-through.” [See first tuesday Form 561]

The tenant records any defects in the furniture on the condition of furnishings form, such as tears or burns in upholstery or scratches in wood furniture.

No minor or major defective conditions are observed by the tenant or the landlord during the “walk-through.”

Later, before the tenant vacates the unit, the tenant and the resident manager will conduct a pre-expiration inspection to determine if the unit and the furnishings have suffered any damage other than normal wear and tear during the occupancy. The tenant will be handed a statement of definitions listing any conditions which must be corrected to avoid a deduction of the corrective costs from the security deposit.

The purpose of the condition of premises and condition of furnishings forms is to determine if any defective conditions exist in the rental unit and to repair them before the tenant takes possession.

When the tenant vacates, the landlord wants to be able to recover the cost of any damage to the unit or the furnishings caused by the tenant. The completed forms document the condition of the unit and its furnishings at the time of occupancy.

On the other hand, the tenant wants to avoid liability for damage he did not cause.

Tenant’s duty to maintain

A tenant must repair all deterioration and damage to the premises caused by his failure to use ordinary care in his use of the premises. Thus, normal wear and tear on the unit need not be avoided or eliminated by the tenant. [Calif. Civil Code §1929]

Further, a residential tenant has a duty of care and maintenance in the use of the leased premises which includes:

· keeping the premises occupied by the tenant clean and sanitary;

· disposing of all rubbish, garbage and waste in a sanitary manner;

· properly operating all electrical, gas and plumbing fixtures, and keeping them clean and sanitary;

· allowing no person who is on the premises with the tenant’s permission to intentionally destroy, damage, waste or remove any part of the premises or the facilities, equipment or appurtenances; and

· occupying and using the premises for the purpose it is intended to be used. [CC §1941.2]

The landlord can agree to be responsible for the cleanliness of the common areas, and the disposal of garbage and rubbish, i.e. the hiring of a sanitation service. [CC §1941.2(b)]

The tenant breaches his duty to care for and maintain the premises when the tenant:

· contributes substantially to the dilapidation of the premises; or

· substantially interferes with the landlord’s duty to maintain the premises. [CC §1941.2(a)]

For example, a tenant does not notify his landlord of a leak in the roof which is causing damage to the ceiling of the rental unit. Eventually, the ceiling falls down, causing damage to the tenant’s personal property, the walls and the floor coverings.

Here, the tenant interfered with the landlord’s duty to maintain the property since the tenant failed to:

· notify the landlord of the leak in the roof; or

· repair the leak himself.

Also, the landlord is not liable for any damage to the tenant’s personal property resulting from the falling ceiling which was brought about by the tenant’s neglect in reporting water seepage. Conversely, the tenant is liable for the cost of the damage to the rental unit for failure to report the need for repairs on the first sign of leakage.

A landlord can recover the cost of repairs made to correct excessive wear and tear by deducting the cost of repairs from the security deposit and demanding payment for any deficiency in the deposit to cover the expenses. [CC §1950.5(b)]

If the tenant fails to pay any charges remaining unpaid after deductions from the security deposit, the landlord can file an action against the tenant to recover amounts not covered by the security deposit. [CC §1950.5(m)]

Landlord’s duty to maintain

A residential landlord has a general obligation to:

· put a residential unit in a condition fit for occupancy prior to leasing; and

· repair all unsafe and unsanitary conditions which occur during occupancy that would render the unit uninhabitable. [CC §1941]

Further, all residential leases and rental agreements automatically contain an implied warranty of habitability. The unwritten warranty imposes a contractual duty on a landlord to repair and maintain his residential units so the units are fit for human occupancy at all times. [Green v. Superior Court of the City and County of San Francisco (1974) 10 C3d 616]

Both the landlord’s statutory obligation to maintain his residential units and the implied warranty of habitability require the landlord to correct major defects that interfere with the tenant’s ability to live on the property, such as a lack of hot water or heating, or a leaky roof.

While the residential landlord has an obligation to care for and maintain all major and structural components of residential rental units, the landlord is further obligated to repair minor defects. Minor defects include such conditions as leaky faucets, faulty electrical switches and failed locks or latches. Typically, a residential landlord agrees in the lease or rental agreement to care for and maintain the property, which includes the repair of minor defects. [See first tuesday Form 550 §6.2]

Thus, the landlord’s failure to repair or replace minor defects constitutes a breach of provisions in the lease or rental agreement. The landlord who breaches the lease by failing to make minor repairs must reimburse the tenant for reasonable costs incurred by the tenant to cure the defects.

Minor repairs and habitability

During his occupancy, a residential tenant discovers the electrical wiring for the garbage disposal under the kitchen sink is exposed. The tenant asks the landlord to correct the faulty wiring. The landlord does nothing.

Later, other minor repairs become necessary in the unit. A roof leak develops, causing a stain on a bedroom ceiling, and the water closet on the toilet bowl leaks, requiring repair or replacement. The tenant notifies the landlord of the need for the repairs. Neither the landlord nor the tenant correct any of the minor defects.

Frustrated with the landlord’s lack of cooperation, the tenant stops paying rent. The landlord serves the tenant with a 3-day notice to pay rent or quit. [See first tuesday Form 575]

The tenant still refuses to pay rent, and the landlord files an unlawful detainer (UD) action.

The tenant defends his nonpayment of rent by claiming the landlord breached the warranty of habitability since he failed to repair the numerous defective conditions on the premises.

Here, the landlord did not breach the warranty of habitability and the tenant is ordered evicted for non-payment of rent. The defective conditions did not interfere with the tenant’s ability to live on the premises for the purposes intended, despite the inconveniences.

A landlord breaches the warranty of habitability only when he fails to provide and maintain residential rental units in a habitable safe and sanitary — condition. [Green, supra]

Tenant’s option to repair

When a residential landlord fails to repair minor defective conditions on the property, the tenant may exercise one of three remedies:

· repair the defect and deduct the costs of contracting for the repair from the rent [CC §1942(a)];

· make the repairs, continue to pay rent and sue the landlord to recover the cost of repairs; or

· vacate the premises. [CC §1942(a)]

However, if the premises are so unsafe and unsanitary they qualify as uninhabitable, the tenant can remain in occupancy and withhold payment of the rent. In an ensuing UD action, the tenant would raise the defense of the landlord’s breach of the implied warranty of habitability to force the landlord to make the necessary repairs to eliminate the unsafe and unsanitary condition.

The court would then set the amount of rent due during the period of nonpayment of rent based on the percentage of uninhabitability, usually determined in the tenant’s favor.

The repair-and-deduct remedy

If the leased premises is in need of repair, whether minor or major, the tenant must notify the landlord orally or in writing of the condition.

After advising the landlord of the need for repairs, the tenant can make the repairs himself and deduct the cost of the repairs from the next month’s rent if:

· the landlord fails to make the necessary repairs within a reasonable time; and

· the cost of repairs does not exceed the amount of one month’s rent, called the repair-and-deduct remedy.

The tenant cannot exercise the repair-and-deduct remedy more than twice in any 12-month period. [CC §1942(a)]

Also, any agreement by the tenant to waive or modify his right to repair and deduct the costs from the rent is unenforceable. [CC §1942.1]

A reasonable time for the landlord to repair after notice is 30 days, unless the need to repair is urgent and requires more immediate attention. [CC §1942(b)]

Obviously, the repair-and-deduct remedy is not available to the tenant when the need for repair is created by the tenant’s conduct. [CC §1942(c)]

Repairs exceeding one month’s rent

Should the cost of repairs would exceed one month’s rent, the tenant, while continuing to occupy and pay rent, may make the necessary repairs and file an action against the landlord to recover the cost of the repairs.

However, it may be impossible for the tenant to make the necessary repairs when:

· the tenant rents a unit in a large complex; or

· is unable to cover the cost of repairs.

If the nonresidential tenant is unable or does not want to cover the cost of repairs which the landlord has failed to make, the tenant can vacate the premises and is relieved of any further obligation under the lease called a constructive eviction [CC §1942(a)]

Maintaining property with care

Just as a residential landlord has a duty to repair and maintain the leased premises, a nonresidential landlord who retains responsibility for maintenance and repair under the lease also has a duty to use care in doing so.

Consider a tenant, residential or nonresidential, who notifies his landlord a window is broken and will not stay open. The landlord begins work to repair the window, but does not complete the work. The tenant gives the landlord permission to enter the premises when the tenant is out to finish the repairs, which the landlord does not do.

Finally, the window falls, injuring the tenant.

Here, the landlord is responsible for the injuries. Once a landlord of residential or nonresidential premises undertakes to make repairs on the premises to correct a dangerous condition, the landlord must complete the repairs in a timely and proper manner. [Minoletti v. Sabini (1972) 27 CA3d 321]

Landlords of both residential and nonresidential property are also responsible to tenants, guests of tenants and members of the public for injuries caused to them by the landlord’s lack of ordinary care or skill in the maintenance of his property. [CC §1714]

Nondelegable duty to repair

Now consider a nonresidential landlord who hires a contractor to repair the roof on leased property. A tenant is injured as a result of the contractor’s negligence while performing the repair.

The tenant claims the landlord is liable for his injuries since the landlord is responsible for maintaining the property, and the maintenance undertaken created a dangerous condition which injured the tenant.

The landlord claims he is not liable since it was the roofing contractor’s negligence while on the job which caused the tenant’s injury, not the landlord.

Is the landlord liable for injuries to a tenant caused by a contractor hired to perform repairs?

Yes! A landlord’s duty to exercise care (not to be negligent) in the repair and maintenance of a leased premises is a nondelegable duty — it cannot be transferred or assumed by another person, such as a property manager or contractor. [Srithong v. Total Investment Company (1994) 23 CA4th 721]

Thus, the landlord is liable for injuries caused to persons (excluding the contractor’s employees) during the fulfillment of the landlord’s duty to maintain the property, whether the maintenance is accomplished by the landlord or by contractors he or his property manager employs.

Penalty for failure to maintain

A landlord is aware various felony crimes have recently been committed in the common areas of his apartment complex and parking garage.

The tenants of the complex complain to the landlord about the crimes. The tenants request the broken doors, gates and locks be repaired and adequate lighting be provided as security to prevent the crimes from reoccurring.

The landlord fails to make the repairs or provide the security measures requested. Later, while in a common area, a tenant is assaulted and suffers injuries. The tenant seeks to recover losses from the landlord for his injuries, as well as punitive damages. The tenant claims the landlord breached his duty to protect him from known criminal activity in the complex by failing to maintain and provide adequate security measures in the common areas. Further, the tenant claims the landlord is liable for breaching the warranty of habitability.

First, can the tenant recover punitive damages from the landlord?

Yes! The landlord was aware of the dangerous condition created by the lack of maintenance. By failing to correct the deferred maintenance, the landlord conducted himself with a conscious disregard for the rights or safety of others. The landlord’s deliberate failure to maintain the premises by eliminating the dangerous conditions which were known to him and over which he alone had the power to correct, exposes him to liability for punitive damages. [Penner v. Falk (1984) 153 CA3d 858]

Also, a landlord is liable for punitive damages for failure to disclose a dangerous condition to tenants about which he has actual knowledge. [O’Hara v. Western Seven Trees Corporation Intercoast Management (1977) 75 CA3d 798]

However, the landlord is not liable for breaching the warranty of habitability. The living quarters were habitable, and the housing complied with local codes.

Thus, the defense of uninhabitable premises for failure to pay rent based on a lack of security will fail and the nonpaying tenant will be evicted. [Penner, supra]