When does a rodent problem cause a rental property to become uninhabitable? Can a landlord continue to collect rent when a property becomes uninhabitable?


A rodent infestation is a breach of the implied warranty of habitability, inherent in all residential rental and lease agreements as though it is a written provision. [Green v. Superior Court of California (1974) 10 Cal. 3d 616]

A dwelling is considered uninhabitable if it is not “substantially free” from rodents and vermin. This, of course, raises the question of what constitutes “substantial.”[Calif. Civil Code § 1941.1(a)(6)]

Under the implied warranty of habitability concept, an infestation is considered substantial enough to constitute a breach of the warranty if there is a “continued presence of rats, mice and cockroaches on the premises.” [Green, supra]

When a residential property is thus infested, the tenant has the right to withhold rent for the duration of the infestation, until the landlord returns the property to a habitable condition. In the event the landlord proceeds with servicing notices and an unlawful detainer (UD) action for the tenant’s failure to pay rent, the tenant defends his occupancy by claiming the landlord breached the implied warranty of habitability.

If the tenant successfully defends against the UD action, the tenant is still required to pay rent for the period of the landlord’s breach. However, the court will reduce the rent by an amount proportional to the infestation’s impact on the unit’s habitability. In cases where a unit’s habitability is severely affected, that amount can be reduced to almost nothing.

As an alternative to default on the rent payment, a residential tenant has the right to correct any defects and deduct their out-of-pocket costs to make the correction from their rental payment. The cost of these repairs is limited to an amount equal to one month’s rent. This is known as the repair-and-deduct remedy. [CC §1942]

However, in multi-family properties infestations are not usually limited to one unit, frequently affecting areas beyond the control of an individual tenant. Lack of control makes it difficult or impossible for the tenant to eliminate an infestation on their own.

Bear in mind that a tenant may not withhold rent for a habitability issue they caused. Also, if the tenant never notified the landlord a condition had arisen that renders the unit uninhabitable, the landlord is not in breach of the implied warranty. Further, a tenant’s request to repair the defect needs to be made in writing since proving the landlord breached the implied warranty is the tenant’s responsibility.

Ultimately, rent will continue to accrue on an uninhabitable unit. However, policy mechanisms are in place to severely reduce the economic viability of an uninhabitable unit for the landlord. The goal is to prevent substandard units from entering the marketplace to begin with.

Editor’s note – For more information on the implied warranty of habitability and its effects on rent, current students and subscribers read Landlords, Tenants, and Property Management, Chapter 27: Implied warranty of habitability of the first tuesday Realtipedia.