The Other Side
by J. Wallace Oman
When a tenant rents a residential rental unit in San Francisco, that tenant is renting a turnkey package which, by state and local law, must provide all the basic housing necessities and housing services for a habitable, tenantable dwelling. Inevitably, however, an initially habitable rental unit will need repairs as time passes, because of normal wear and tear or for other reasons. A landlord who does not live at the property containing the rental unit, or even one who does, will generally not learn about defective conditions—conditions at the rental unit that need a repair—unless the tenant notifies the landlord about them.
With very few exceptions, I advise tenants to notify their landlords in writing about all defective conditions as promptly as possible after the defective conditions arise or are observed. I generally advise tenants to notify their landlords in a friendly manner, which assumes that landlords will be grateful that tenants are assisting the landlords, as the landlords’ on-site eyes, to help the landlords protect their real property by providing them with prompt information. (This article also assumes that the landlords will not enter into rental units to perform repairs in ways to harass tenants and attempt to drive them out of their dwellings. If that happens, special tenant measures beyond the scope of this article are required.)
A tenant can send the notice of the defective condition to the landlord when mailing a rent check and can refer to the enclosed rent check in the letter, thereby creating what I call “poor person’s certified mail.” When the landlord cashes the rent check, it is strong proof that the landlord received notice of the defective condition.
The Low-Rent-for-No-Repairs Agreement
Unfortunately, there are a number of landlords who do not want to be notified about defective conditions at their properties or in their rental units; they want to be able to maintain a lack of knowledge of any defective conditions. (Landlords who recently purchased the property are usually provided with transfer disclosure statements by the seller and often these buyer landlords conducted their own inspections of property prior to purchase, so their feigned ignorance of defective conditions can be shown at trial.) Having purchased the property recently—or even long ago—these landlords apparently do not want to invest any more money in it via repairs, at least as long as the current resident (often a long-time tenant) is living in a rent-controlled unit with rent far below market value. Of course, if the tenant should vacate the unit, these landlords will invest some money in repairing or even rehabilitating the unit to attract a new, market rate tenant or to make the unit and property more attractive to a buyer. But the implicit—sometimes even explicit—message given by these landlords to their tenants is to not report any defective condition and not to bother them with requests for repairs. Tenants should just live with the problems or, perhaps, deal with the problems themselves.
For tenants and landlords, it is a Faustian bargain, this implicit or explicit low-rent-for-no-repairs agreement, and it long ago began to erode when landlords who owned rent-controlled units decided that they must regularly raise rents at the rate permitted annually by the San Francisco Rent Board. Once tenants saw that rents would be raised regularly, they were no longer happy, or even willing, to endure those defective conditions. Moreover, if the tenants and landlords begin a dispute about another issue (like a landlord’s request that a tenant vacate to permit easier and more profitable sale of the property), any defective conditions almost always come back to haunt the landlord.
The “Repair and Deduct” Approach
Some tenants have attempted to make repairs themselves, without the blessings of their landlords, under the authority of California Civil Code § 1942. This statute provides that a tenant may “repair and deduct,” i.e. repair a defective condition and deduct the cost of the repair from the rent, if certain conditions are met. The defective condition must make the rental unit untenantable. The tenant must wait a reasonable time, presumptively 30 days, after giving written or oral notice of the defective condition to the landlord, before making the repair. The repair must not cost more than one month’s rent, and the “repair and deduct remedy” may not be used more than twice in any 12-month period. Unfortunately, most defective conditions that render a unit untenantable cannot be repaired for only the cost of one month’s rent. And, I believe, a long-term tenant with a rent-controlled unit and rent significantly below market who utilizes this remedy is inviting an eviction attempt by a landlord.
For landlords and tenants who have relatively harmonious relationships, a similar repair and deduct approach is frequently utilized for many small repairs that generally do not render the unit untenantable. In this situation, the landlord requests or instructs the tenant to make the repairs himself/herself and offers to reimburse the tenant for the cost of materials. (Most written rental agreements contain provisions prohibiting a tenant from making alterations or repairs without the prior written consent of the landlord. If a tenant makes repairs without sufficient prior written authorization, the agreement can be used against the tenant in later disputes.) A tenant should think very carefully about entering into this kind of agreement because, if the repair work is not performed properly or up to the expectations of the landlord, the tenant may incur liability for all resulting damages.
To use an example given in (online legal resource) Nolo’s California Tenant Rights, let’s say a tenant innocently attempts to repair a window that was broken by his daughter’s basketball. If he does it incorrectly, fails to paint the caulk, and thereby permits rainwater to seep onto the windowsill and down the wall, resulting in dryrot and a need for a major repair, that tenant undoubtedly will be charged for the full cost of all the subsequent repair work. The problem could be even worse if the window were to fall out and injure someone; the tenant (and landlord) would both then face personal injury liability.
If the problem is not one that the tenant is thought qualified to repair, the landlord may request that the tenant find a contractor to do the work. Often the
landlord encourages the tenant to find an unlicensed contractor with low rates. Sometimes the tenant will even directly pay the contractor and then seek reimbursement—usually in the form of a deduction from the rent—from the landlord. This approach can work—or appear to work—for a long time, even many years, but it contains land mines for both tenants and landlords.
Resolving Disputes
I have seen numerous cases where tenants and landlords have had excellent relationships for years, even for decades, but time has marched on and the situation has changed, either because the landlord has died, became unable to manage the property, or decided to sell or reoccupy it. Occasionally, the longtime landlord has just become more focused on deriving profit from the property—perhaps due to a need for funds because of a property refinancing or a divorce. But more likely there is a new owner of the property (who either is an adult heir of the deceased landlord without the same relationship with the tenant, or is a new buyer of the property with a new, expensive mortgage and a strong desire to get higher rent for the unit). Whatever the cause, the landlord-tenant relationship becomes conflict ridden and the landlord and tenant become adversaries. When that happens, one of the major issues of contention is the amount of current monthly rent, and another is the uninhabitability of the rental unit, and the failure by the landlord and the landlord’s predecessors to repair defective conditions. If any repair work was done by the tenant—even at the request or instigation of the landlord—the tenant is sure to face allegations by the landlord that the tenant failed to do repair work competently and thereby broke the agreement with the landlord.
These disputes, often containing numerous issues, claims and defenses by both landlords and tenants, are not easily resolved, certainly not without formal dispute-resolution services. Becausemy tenant clients do not generally have the resources available to landlords for litigation, I often recommend that they utilize the San Francisco Rent Board and file petitions for unlawful rent increases, decreases in housing services and failures to maintain. Because the Rent Board’s administrative law judges often don’t give full credence to the testimony and photographs of the tenants themselves, or even to the reports of private housing inspectors, I generally feel compelled to advise the tenants to file complaints of housing code violations with the San Francisco Department of Building Inspection and the San Francisco Department of Public Health. To illustrate this need, one recent Rent Board decision states: “To the extent that the tenants’ claim is based on the statements in the [private housing inspector’s] report that some of the wiring and fixtures are not up to code, these conclusions have not been corroborated by an independent source such as the Department of Building Inspection.”
The safest course of action for a tenant to follow when there is any kind of nonminimal defective condition is to give written notice to the landlord at the earliest possible opportunity and to request that the landlord make the repair. If the landlord requests that the tenant make the repair himself/herself, the tenant should respectfully decline—unless the tenant is willing to take the serious risk that the landlord will later accuse the tenant of defective workmanship. Even then, the tenant should not undertake the project without prior specific written authorization and subsequent written approval of the work by the landlord.
If the repair work needed is appropriate for a contractor rather than the tenant, the tenant should request that the landlord select and hire the contractor. If the landlord requests that the tenant select the contractor, the tenant, even if she/he has great trust in the landlord, should present two or three names of licensed contractors to the landlord for selection by the landlord. The tenant should never select or hire the contractor for the landlord, even if the landlord lives far away. Tenants should, instead, assume their legal responsibilities to take proper care of landlords’ real property, notify landlords promptly if there are any defective conditions and claim responsibility for any damage they have caused.
If tenants and landlords assume their legal responsibilities for maintaining and repairing the rental units in habitable condition, then landlord-tenant relationships will function much more smoothly. If they do not meet their legal responsibilities, they should expect trouble sooner or later.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or San Francisco Apartment Magazine. The information contained in this article is general in nature; consult the advice of an attorney for any specific problem. J. Wallace Oman is a San Francisco attorney specializing in tenant representation. Before that, for almost 20 years he was a staff attorney with the local, federally funded legal services program. He is a co-author of California Eviction Defense Manual, Second Edition (CEB California Continuing Education of the Bar 2006). Copyright © 2006 by J. Wallace Oman and San Francisco Apartment Magazine. All rights reserved.