BROKER RISK MANAGEMENT
WEEKLY PRACTICE TIP
Habitability in Rentals
Q: What are the minimum requirements that a landlord must provide in a rental? What if the unit is dirty or has not been painted, etc.? Are there any minimal standards?
A: Yes, there are minimal requirements for the “habitability” of the rental unit, but they are just that – minimal.
According to California law and the California Department of Consumer Affairs, a rental unit must be fit to live in; that is, it must be habitable, which generally means that the rental unit: (1) is fit for occupation by human beings; and (2) substantially complies with state and local building and health codes that materially affect tenants' health and safety. This is called the “implied warranty of habitability.”
RENTAL UNIT REQUIREMENTS: Each rental unit must have all of the following:
1. A working toilet, wash basin, and bathtub or shower which must be in a room which is ventilated and allows privacy.
2. A kitchen with a sink that cannot be made of an absorbent material such as wood.
3. 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.
4. 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.
5. Operable dead bolt locks on the main entry doors of rental units, and operable locking or security devices on windows.
6. 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.
7. A locking mail box for each unit. The mail box must be consistent with the United States Postal Service standards for apartment housing mail boxes.
8. 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).
9. Inside wiring for one telephone jack.
UNINHABITABILITY: The implied warranty of habitability is not violated merely because the rental unit is not in perfect, aesthetically pleasing condition; nor if there are minor housing code violations, which, by themselves, do not affect habitability.
A rental unit has been found to be uninhabitable if:
A. It contains a lead or other environmental hazard that endangers the occupants or the public,
B. It is a structural hazard, has inadequate sanitation, or is a nuisance that endangers the health, life, safety, property, or welfare of the occupants or the public.
C. It lacks effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
D. It lacks plumbing facilities in good working order, including hot and cold running water, connected to a sewage disposal system.
E. It lacks gas facilities, heating facilities and an electric system (including lighting, wiring, and equipment) in good working order.
G. It lacks clean and sanitary buildings, grounds, and appurtenances (for example, a garden or a detached garage), free from debris, filth, rubbish, garbage, rodents, and vermin.
H. It lacks floors, stairways, railings and adequate trash receptacles in good repair.
I. The presence of mold conditions in the rental unit affects the livability of the unit or the health and safety of tenants.
J. It has holes in floors or walls, collapsed ceilings or if windows, doors or locks are broken or missing.
K. It is infested with mice, rats or vermin.
Remember, that the determination as to whether a particular rental unit is uninhabitable is a factual matter that may have to be determined by a court. In some cases, one defect mentioned above may be sufficient to make a rental unit uninhabitable. In other cases, it may take several of such factors to make the unit uninhabitable, depending on the severity of the defects. For example, several cracked windows, minor leaking during the rain and a mouse in the basement may not be sufficient to make the unit uninhabitable.
TENANTS’ RESPONSIBILITIES: Even if a rental unit is unlivable because of one of the conditions listed above, a landlord may not be legally required to repair the condition if the tenant has not fulfilled the tenant's own responsibilities. Unless agreed to by the landlord, tenants must do all of the following:
1. Keep the premises “as clean and sanitary as the condition of the premises permits.”
2. Use and operate gas, electrical, and plumbing fixtures properly. (Examples of improper use include overloading electrical outlets; flushing large, foreign objects down the toilet; and allowing any gas, electrical, or plumbing fixture to become filthy.)
3. Dispose of trash and garbage in a clean and sanitary manner.
4. Not destroy, damage, or deface the premises, or allow anyone else to do so.
5. Not remove any part of the structure, dwelling unit, facilities, equipment, or appurtenances, or allow anyone else to do so.
6. Use the premises as a place to live, and use the rooms for their intended purposes. For example, the bedroom must be used as a bedroom, and not as a kitchen.
7. Notify the landlord when dead bolt locks and window locks or security devices don't operate properly.
If a tenant violates these requirements in some minor way, the landlord is still responsible for providing a habitable dwelling, and may be prosecuted for violating housing code standards.
If the tenant fails to do one of these required things, and the tenant’s failure has either substantially caused an unlivable condition to occur or has substantially interfered with the landlord’s ability to repair the condition, the landlord does not have to repair the condition.
However, a tenant cannot withhold rent, and may have no action against the landlord for violating the implied warranty of habitability, if the tenant has failed to meet these requirements.
PRACTICE TIP: Any landlord or tenant concerned about the issue of habitability should be advised to talk with a good landlord-tenant attorney to determine their rights in any particular situation. In addition, the presence of rent control and other local ordinances may affect the parties’ rights in these matters.
DO NOT FORWARD TO CLIENTS. This Weekly Practice Tip is for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.
© Copyright Broker Risk Management 2011 05/06/11