If my landlord has not made numerous repairs for 2 months, how can we be compensated for unloveable conditions if we don’t want to move?

UPDATED: Sep 30, 2022

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If my landlord has not made numerous repairs for 2 months, how can we be compensated for unloveable conditions if we don’t want to move?

The bathroom window broke due to old age the last week of November. It has yet to be fixed. In

that time, with all of the rain, we got an awful bug infestation. Also with the rain, our roof, which always leaks, has been pouring buckets down. I only informed the manager of this verbally. In the past they have always just patched our ceiling telling us it will leak again and there’s nothing they can do b/c it’s an old building. We have to get up in the night to change the buckets. They sent a pest guy twice, both times failing to fix the problem. I finally sprayed myself and found the nest of whatever they were and saved it. The heater has broken 3 times in the same 2 month period as well, the first time taking them a week and a half to fix it. It’s broken again today. We love this place but it’s fallen apart us these last 2

months and nothing has been fixed. They were good in the past – I don’t know at this point if they’re trying to get rid of us or what (6 1/2 years rent controlled). Can we sue for the last 2 months rent or even just this month. Let alone all the dry cleaning bills and depression.

Asked on January 23, 2017 under Real Estate Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

The implied warranty of habitability requires landlords to fix problems that affect the basic use or habitability of rental space, like large leaks, lack of heat, broken windows, and pest conditions. (It does not require the repair of non-habitability-impacting issues, like dingy paint or small drafts, or the lack of good insulation common in older homes.) If the landlord does not do this, there are several remedies for the tenant, but they have their own issues and risks.
1) You can, if you have sent *written* notice to the landlord of the problems and, after a reasonable amount of time, he still hasn't fixed them, withhold your rent until they are fixed. The landlord would likely seek to evict you; you would then in court raise the lack of repairs as the reason for the withholding. If the court sided with you, it could order that the repairs be done before the landlord got the rent--though after the repairs were done, you'd have to pay the withheld rent (i.e. save it, don't use it on other things). The court could also give you an "abatement" (reduction) of the rent for the time period you lived through the habitability issues, so the landlord would get some/most, but not all, of the unpaid rent, and you could keep the rest, but the court is not required to do this. And if the court did not agree with you--always a possibility; you cannot guaranty how a judge will rule in advance--you'd have to pay all the withheld rent immediately to avoid eviction.
2) Repair and deduct: after written notice and non-repair, pay for repairs yourself, then deduct the cost thereof from rent. The landlord may seek to evict for not paying all rent; if so, you have the same issues as 1), above.
3) Constructive eviction: if after written notice there are no repairs, you could try to treat the lease as terminated by the landlord's breach and move out without further liability to him. But if he sued you for breach of the lease, for the money due under the lease, if a court felt that the problems were not bad enough so as to justify moving out, you could have to pay the rest of the rent under the lease.
4) Sue the landlord (e.g. in small claims court) for any direct costs (e.g. dry cleaning) he caused you. You cannot sue for depression: the law does not give compensation for the mental stress of dealing with difficult situations.

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