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Can last month's rent be withheld in lieu of paying repair bills?

The landlord of a rental house hasn't been paying for repairs such as emergency plumber calls. Now the renter is ready to leave and wants to recoup the money paid. Can it be deducted from rent?

March 04, 2012|By Martin Eichner

Question: For more than five years, I have lived in a rental house. Throughout this time, I have been forced to go into my own pocket to pay for the most basic repairs, such as emergency plumber calls. I have paid for repairs myself because my landlord always takes too long to respond. I have been very careful to keep copies of all the repair bills I paid, and they total more than a month's rent. I have found a new place to live that is newer and in better condition. I would like to skip payment of the last month's rent on my current home as a way to make sure I am compensated for at least some of the bills I had to pay. Will I be able to do that?

Answer: A landlord has a duty to provide habitable rental premises. As described in California Civil Code Section 1941.1, that duty includes adequate plumbing.

A landlord must respond to a repair request as quickly as reasonably possible, given the specific issue. For example, an emergency water leak requires an immediate response. If you properly notified your landlord of the need for an emergency repair and he failed to respond as quickly as possible, he violated his duty. This rule applies as long as the emergency repairs were not due to your own actions, such as flushing a tennis ball down the toilet.

You should always make requests for repairs in writing so you can prove that you made the request. If you need to call the landlord to report an emergency, follow up with an email or other written request so you will have a record of your request.

Even if you can prove that your landlord violated his duty to provide habitable premises, you still need to pick your remedy. If you can prove that you gave proper written notice, that the landlord did not respond as quickly as possible and that you incurred these expenses for repairs that were within the landlord's duty of habitability, you can deduct the cost from your rent up to the amount of one month's rent, once a year.

However, if you deduct, the landlord may force the issue by serving a three-day notice to pay rent or quit, which, if followed with an unlawful detainer eviction case, could involve you in an expensive and risky court case.

A Small Claims Court case would be a safer alternative. If you had a written rental agreement, you can sue for damages within the last four years, so you might need to exclude bills incurred outside the four-year statute of limitations. However, you can include your damages for the landlord's failure to make the repairs, such as time off work to wait for the plumber, and you won't need to hire an attorney.

Eichner is director of Housing Counseling Programs for Project Sentinel, a mediation service based in Sunnyvale, Calif. To submit a question, go to http://www.housing.org.

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