When Tenants May Withhold Rent

Are there circumstances where a tenant can legally withhold rent?

Yes, there are defined circumstances that permit your residents to withhold rent, and they all have one thing in common:  A failure to maintain the apartment and/or the building.  As repeatedly emphasized in SFAA meetings and course offerings, rental housing must always have (i) effective waterproofing and weather protection of roof and exterior walls; (ii) operable windows and doors; and (iii) functioning plumbing, heating, and electrical systems, including hot and cold running water and an operable toilet and sink.  In addition, apartment homes may not contain lead paint hazards and be free from conditions that pose a danger to the occupants such as excessive mold.  For example, the doors and windows should be able to be properly secured, common areas should be sanitary and well lit, and there should not be an infestation of any pests or rodents.  Local jurisdictions may also impose additional requirements such as San Francisco’s heat ordinance which requires all habitable rooms to be minimally heated to 70 degrees 24 hours each day.  These standards are known as the “warranty of habitability,” and the above list is not exhaustive of all state and local housing requirements.   

State law permits residents to make repairs and to deduct those costs from rent.  This statutory remedy has the following requirements: (i) A resident cannot spend more than one month’s rent; (ii) repair and deduct may not be used more than twice in any 12-month period; (iii) neither the resident nor the resident’s guests or invitees may be the cause of the problem; and (iv) the housing provider must be informed of the problem and afforded a reasonably opportunity to address the issue, and then fail to rectify the shortcoming.  The tenant must also actually incur the cost of repair(s) before making the deduction.  Regarding tenant responsibility, they are obliged to keep their homes clean and sanitary, dispose of all trash and recyclables in an appropriate manner, properly use all fixtures, and not willfully destroy, damage, deface, or otherwise misuse the apartment.

In certain circumstances, rent may be entirely withheld when the landlord fails to provide a habitable dwelling.  To lawfully withhold rent, the housing condition must substantially violate the warranty of habitability and the housing provider must be unreasonably non-responsive to repair requests.  Under state law, landlords may not demand rent, collect rent, issue a rent increase notice, or serve a three-day notice to pay rent if:  (i) there is a substantial breach of the warranty of habitability; (ii) a notice of violation (NOV) has been issued by the Department of Building Inspection or other governmental agency; (iii) the conditions remain more than 35 days beyond the issuance of the NOV; and (iv) the problematic conditions were not caused by the resident or the resident’s guests. 

No SFAA member should ever run afoul of the warranty of habitability and thus should never be in a position where rent is justifiably withheld in whole or in part.  Yes, there may arise situations when a resident precludes entry to make necessary repairs, and if faced with that scenario, please consult with your attorney immediately.  Otherwise, be proactive with building and apartment maintenance, repairs, and upkeep.  Should rent not arrive, contact your tenant to ascertain why rent is being withheld before resorting to the eviction process.  And should you ever receive a NOV, promptly take the necessary steps to abate every listed violation.    

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