Q: What determines the habitability of a property?

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Q: What determines the habitability of a property?

Q: What determines the habitability of a property?

Can a landlord legally continue to collect rent & allow tenancy in CA if he becomes aware of code violations in the rental? (Hsc & building) What can happen to the Landlord/tenant if tenancy continues?

 San Francisco, California

answer-icon-masterHabitability in CaliforniaThe answer depends on the details, of course, but assuming we’re talking about residential property and the ‘code violation’ rises to the level of inhabitability, then nothing good is about to happen. 

Let’s talk about the concept of ‘habitability.’ In California law, a landlord renting a building to a tenant is essentially guaranteeing habitability simply by leasing the place. 

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The concept is called the implied warranty of habitability, and while it was officially recognized in California state case law in the California Supreme Court Ruling Green v. Superior Court, the case draws on precedents altering common law in other states, so this ruling has resonance beyond California. 

If there is a material issue with the livability of the unit, though, the landlord cannot continue to require rent payments until the problem is fixed. There is a process in California law for tenants to actually withhold rent payments until the habitability problem is addressed. 

However, landlords generally are not obligated to repair conditions that were actually caused by the tenants’ actions or negligence, nor that of their guests. 

Not every minor code violation necessarily makes a property inhabitable. The code violation must have a material effect on the safety and livability of the unit. So a relatively minor code violation that doesn’t affect the tenant in any way or make the property unsafe will not pose a problem for the continued collection of rent.

When this arises, the tenant should take care to ensure that the problem was not one of their own making or that of a guest, that it’s a serious condition affecting health and safety and not a minor inconvenience, and that documentation be in place proving that the tenant contacted the landlord, informed the landlord of the issue and that he or she intended to withhold rent if the issue was not addressed, and gave the landlord a reasonable deadline to fix the problem.

Tenants aren’t necessarily able to withhold the entire rent amount either – only an amount related to the severity of the problem. If the tenant is forced to move out because of a habitability issue, that would be justification for withholding the entire amount. For issues that don’t force the tenant into a new home, the tenant can only legally withhold a partial amount. 

Alternatively, California Civil Code § 1941.1-1942.5 gives the tenant the right to ‘repair and deduct’ the cost of the repair from the rental amount. 

Landlords cannot retaliate against tenants that elect to exercise their rights under this provision or who withhold rent due to inhabitability.

Elements of Habitability

In California, habitability includes the following specific warranties:

A dwelling also may be considered uninhabitable (unlivable) if it substantially lacks any of the following:

  • Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
  • Plumbing facilities in good working order, including hot and cold running water, connected to a sewage disposal system.
  • Gas facilities in good working order.
  • Heating facilities in good working order.
  • An electric system, including lighting, wiring, and equipment, in good working order.
  • Clean and sanitary buildings, grounds, and appurtenances (for example, a garden or a detached garage), free from debris, filth, rubbish, garbage, rodents, and vermin.
  • Adequate trash receptacles in good repair.
  • Floors, stairways, and railings in good repair.

In addition to these requirements, each rental unit must have all of the following:

  • A working toilet, wash basin, and bathtub or shower. The toilet and bathtub or shower must be in a room which is ventilated and allows privacy.
  • A kitchen with a sink that cannot be made of an absorbent material such as wood.
  • Natural lighting in every room through windows or skylights. Windows in each room must be able to open at least halfway for ventilation, unless a fan provides mechanical ventilation.
  • Safe fire or emergency exits leading to a street or hallway. Stairs, hallways, and exits must be kept litter-free. Storage areas, garages, and basements must be kept free of combustible materials.
  • Operable dead bolt locks on the main entry doors of rental units, and operable locking or security devices on windows.
  • Working smoke detectors in all units of multi-unit buildings, such as duplexes and apartment complexes. Apartment complexes also must have smoke detectors in common stairwells.
  • A locking mail box for each unit. The mailbox must be consistent with the United States Postal Service standards for apartment housing mailboxes.
  • Ground fault circuit interrupters for swimming pools and anti-suction protections for wading pools in apartment complexes and other residential settings (but not single family residences)

It’s also possible for a mold problem to cause a dwelling to become uninhabitable. 


While rare in practice, it is possible for tenants to sue their landlords in California courts for a violation of the implied warranty of habitability, which is treated as a breach of contract and occasionally, where there is a problem of a noxious odor, for example, or where debris or other problems blocks access to the driveway, the tenant can potentially claim damages due to nuisance. 

For more information, California residents and landlords can contact the California Department of Consumer Affairs. 

Author Bio
Writing about personal finance and investments since 1999, started as a reporter with Mutual Funds Magazine and served as editor of Investors’ Digest. He now publishes feature articles in many publications including Annuity Selling Guide, Bankrate.com, and more.
Author Bio for Jason Van Steenwyk

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