California - Breach of Habitability

Landlord-tenant law governs the rental of commercial and residential property. It is composed primarily of state statutes and common law. A number of states have based their statutory law on either the Uniform Residential Landlord And Tenant Act (URLTA) or the Model Residential Landlord-Tenant Code.

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Posted: 07/15/2011 11:42:53 AM PDT ~ Updated: 07/15/2011 11:46:36 AM PDT
OAKLAND, CA -- Four apartment buildings owned by a couple who the city said allowed the properties to "literally fall apart" must be sold, a judge said this month, ending a two-year-long effort by the city to clean up the buildings. Alameda County Superior Court Judge Gail Brewster Bereola also ordered that Hong Gardner and John Gardner could no longer own apartment buildings in Alameda County or visit the buildings they once owned at 2011 Rutherford St., 5142 Bancroft Ave., 1501 23rd Ave. and 1733 Seminary Ave.

The order came after the Oakland City Attorney's Office and the Alameda County District Attorney's Office proved in court that the Gardners failed to maintain their buildings and allowed tenants to live in inhuman conditions. "Families who pay rent in this city have a right to safe and humane living conditions," said acting City Attorney Barbara Parker. "If a landlord won't abide by the law, we will use all available legal means to assure that tenants' rights to safe and decent housing are protected."

The city first sued the Gardners in 2009, complaining that the couple failed to properly maintain their properties. Over the years, city code enforcement officers have found numerous violations at the four apartment buildings including water and power being shut off, crumbling balconies, and missing fire extinguishers, fire escapes and sprinkler systems.

In fact, one of the apartment buildings, 1733 Seminary Ave., caught fire last year and was found to lack smoke detectors.

Hong Gardner said Thursday that she and her husband have tried to fix their apartments but instead have been swarmed by attorneys from the city. "It's unfair, it's unfair," she said. "It's overwhelming for me, one person, and the city has many, many, many lawyers. They did not give us an opportunity." But the city argued in court that the Gardners had several chances to clean up the apartments but never did.

In addition to forcing the Gardners to sell the buildings, which together house 55 units, Bereola ordered that tenants now living in the apartments do not have to pay rent until repairs to the buildings are completed.

§4.02 Breach of the Warranty of Habitability

Every residential rental agreement has an implied warranty of habitability that is independent of the tenant’s obligation to pay rent. [See CCP §1174.2; CC §§1941–1942.5; Green v Superior Court (1974) 10 C3d 616, 631–632; Fairchild v Park (2001) 90 CA4th 919, 927–928.] This means that a landlord of residential premises must put the premises in a condition fit for human occupancy and must repair all subsequent dilapidations that render the premises untenantable. [CC §1941.]

The landlord’s duty to the tenant to provide habitable premises is nonwaivable. CC §1942.1. This implied warranty does not require that a landlord ensure that leased premises are in perfect, aesthetically pleasing condition, but it does mean that “bare living requirements” must be maintained. [Green v Superior Court, supra, 10 C3d at 637.]

A breach of the warranty of habitability is available as an affirmative defense for a tenant in a UD action for nonpayment of rent. But it is not available in a UD action based on a 30-day notice to quit. [CCP §1174.2; Green v Superior Court, supra, 10 C3d at 631; Knight v Hallsthammar (1981) 29 C3d 46, 57.] This defense is item 3a on the UD answer form [see form UD-105].


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