Landlord’s duty to maintain habitable conditions

A residential landlord’s duty to care for and maintain a rented property is imposed on landlords as a warranty of habitability implied in all residential tenancies when entering into a rental or lease agreement, written or oral, with a tenant.

The implicit warranty of habitability ensures the landlord keeps their rental unit fit for human occupancy — habitable — prior to and during the tenancy. When notified by the tenant, the landlord is to promptly correct any unsafe or unsanitary condition arising during the tenancy which threatens the unit’s habitability. [Calif. Civil Code §1941]

Residential rental units are in habitable condition

when they meet minimum safety and sanitation levels — typically, the local standard building and housing codes. [Calif. Code of Civil Procedure §1174.2]

A residence in habitable condition contains functioning:

  • weather and waterproofing on windows and doors;
  • plumbing and gas utilities;
  • running water with both hot and cold temperatures;
  • heating;
  • electrical lighting; and
  • floors, stairways and railings, when necessary. [CC §1941.1]

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Landlord’s need to be responsive to tenants

As a rule for conduct, every landlord has a duty to ensure the residential housing they rent is safe and sanitary throughout the tenant’s occupancy. Additionally, a landlord has a duty to protect their tenants from foreseeable dangers known to the landlord.

Since environmental tobacco smoke (ETS) poses a legislatively recognized danger to tenants, a risk conscious landlord takes steps to protect tenants on becoming aware of a danger. [Stoiber v. Honeychuck (1980) 101 CA3d 903; CCP §1174.2]

A landlord may do any of the following risk avoidance activities to alleviate the exposure to liability in ETS disputes with tenants in the following order of importance:

  • relocate smokers so they will not affect non-smokers;
  • relocate non-smokers so they are not affected by the ETS of smoking tenants; or
  • initially refuse to rent to persons who will not agree to the non-smoking provisions made a part of the rental or lease agreement.

Alternatively, the landlord may:

  • designate all of the property as smoke-free, with the exception of any clearly defined areas where smoking will not affect others, by giving notice to amend existing rental agreements or expired lease agreements [See RPI Form 563-1]; and
  • enforce the non-smoking condition as part of the rules and policies of occupancy of the property through a “property policies” provision in the rental or lease agreement, then serve tenants who breach the non-smoking rule with a three-day notice to perform (do not smoke) or quit (vacate). [See RPI Form 550 §6.14; see RPI Form 576]

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Non-smoking addendum

The above policies are agreed upon by the landlord and tenant when entering into a rental or lease agreement by using a Non-Smoking Addendum. The Non-Smoking Addendum either prohibits smoking on the entire premises, or notes the specific location where smoking is permitted. [See RPI Form 563-1 §3]

A non-smoking policy may not be initially imposed on tenants under an existing fixed-term lease until an extension of the lease is negotiated, at which point the addendum is attached. Alternatively, the inclusion of a property policies provision in a lease agreement is a method for periodically changing the rules for tenant conduct during the term of a fixed-term lease.

However, tenants occupying under a month-to-month (periodic) rental agreement or an expired lease agreement may be given a 30-day Notice of Change in Rental Terms containing the non-smoking provision as the change. [See RPI Form 570 §7]

The tenant receiving a 30-day Notice of Change in Rental Terms does not need to sign a non-smoking addendum. The tenant, by remaining in possession and not giving notice to vacate, has agreed to the non-smoking provision by remaining silent when noticed. The non-smoking condition is enforceable within 30 days from delivery of the notice.

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Analyzing the non-smoking addendum

A leasing agent or landlord uses the Non-Smoking Addendum published by Realty Publications, Inc. (RPI) when negotiating a residential lease agreement. The form allows the landlord to prohibit smoking on the entire premises or note the specific location on the property where smoking is permitted. [See RPI Form 563-1]

The Non-Smoking Addendum contains:

  • facts, including whether the form is an addendum to a rental or lease agreement, the date the rental or lease agreement was entered into and the address [See RPI Form 563-1 §1];
  • an agreement that states the tenant, household members and the tenant’s guests will not smoke at any time in any unit or areas on or about the landlord’s property, except in areas the landlord designates [See RPI Form 563-1 §3]; and
  • signatures of the landlord and tenant. [See RPI Form 563-1]

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Mold informational booklets

All residential landlords are mandated to hand new tenants a copy of the educational government booklet titled: Information on Dampness and Mold for Renters in California.

A physical copy of the educational booklet is delivered to the prospective tenant; an electronic copy alone will not suffice. [Calif. Health and Safety Code §26148]

The landlord delivers the printed booklet to the tenant prior to the tenant signing a rental or lease agreement. [Health & S C §26148(b)]

While the law does not require landlords to issue the booklet to tenants when renewing or extending their rental or lease agreement, it is best practice to do so. Informing all tenants to be watchful for signs of mold and report to management alerts tenants to undertake preventative maintenance and keep the premises free of mold and correct factors contributing to the mold condition.

Information in the booklet covers:

  • how to identify mold and its causes;
  • steps to take to abate mold; and
  • the negative health effects of mold.

Two versions of the booklet have been published:

The tenant acknowledges receipt of the booklet by the provisions of the rental and lease agreements. [See RPI Form 550 and Form 551 §6.3(a)]

Enforcement of the landlord’s delivery of the booklet to new tenants is delegated to the local health and safety office or local code and environmental health enforcement officers. [Health & S C §26154]

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Analyzing the mold informational booklet

A leasing agent, property manager or landlord hands a new tenant a printed copy of the Information on Dampness and Mold for Renters in California booklet when negotiating a residential lease or rental agreement. The printed booklet provides the tenant with advice concerning how to identify mold and its causes, steps to take to abate mold and the health effects of mold. [See RPI Form 564-1 and 564-2]

The Information on Dampness and Mold for Renters in California covers:

  • health problems resulting from exposure to mold;
  • signs of dampness or mold;
  • causes of property dampness that allows mold to grow;
  • fixing dampness and mold problems;
  • obligations of renters who suspect there is dampness or mold; and
  • additional resources. [See RPI Form 564-1 and 564-2]

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