by Patrick Keene, Lawyer January 2013
The relationship between landlord and tenant is one that most of us will at some time experience. However, there are many common misunderstandings between landlords and tenants that often lead to disputes or even lawsuits between them, usually eviction of the tenant, that can readily be avoided. The purpose of this article is to discuss common issues that arise between landlords and tenants, and how to deal with them in a way that preserves each party’s rights, and ensures performance of each party’s respective obligations to the other.
From the tenant’s perspective, it is unfortunately a common experience for the tenant to lose employment, and not be able to pay the rent. If this happens, the worst thing the tenant can do is to hole up and have no contact with the landlord. Since the landlord hears nothing about the situation, he or she often arrives at the conclusion that the tenant is an irresponsible deadbeat.
In most circumstances, the best thing the tenant can do upon losing a job is to immediately notify the landlord of the situation, and also tell the landlord the efforts the tenant is making to find new employment, and to offer a realistic proposal for payment of the rent, even if it is going to be delayed. If the tenant has otherwise been a good occupant of the property, many landlords are reasonable about working out an extended rent payment arrangement if the landlord believes that the tenant is being honest with the landlord, and has reasonable prospects to become re-employed soon.
If it appears that the tenant is not realistically going to be able to pay the rent, it still makes sense to contact the landlord, and work out an arrangement to move out within a reasonable time frame. From the tenant’s perspective, arranging an exit from the premises with the landlord is preferable to having an eviction on the tenant’s record. This is particularly true if the tenant is residing in federally subsidized housing in which the rent is below market. If a low-income tenant is evicted from subsidized housing, it generally renders the tenant ineligible for other subsidized housing in the future, and this can mean homelessness.
Issues also arise in which the tenant has legitimate claims against the landlord, such as where there are problems with the basic conditions in the premises, including roof leaks, broken windows, non-functioning heating and cooling systems, and so on. Again, it is important that the tenant communicate calmly and promptly with the landlord as soon as a problem is identified, and work in good faith with the landlord to solve the problem. This means, among other things, make the premises available to the landlord to inspect the premises and complete the repairs.
If the tenant has reported the need for repairs to the landlord, provided that the need for repair was not caused by the tenant’s negligent or intentional conduct, and the landlord does not complete the repair within a reasonable time, if the cost of the repairs does not exceed one month’s rent, the tenant may perform or arrange for the repair, and deduct the cost of repairs from the rent. In the alternative, if the premises are uninhabitable, the tenant may vacate the premises and not owe rent until the repairs are completed by the landlord. This remedy arises under California Civil Code section 1942. The right to repair and deduct, or vacate the premises, is only allowed twice in a 12-month period during the tenancy.
If the premises are uninhabitable because of defects that the landlord should correct, the tenant has the right to remain in the premises, and withhold rent until the landlord completes the repairs. This should be done with caution by the tenant, and only after full discussion of the issue with the landlord, because there is a risk that the landlord will seek to evict the tenant for non-payment of rent, and if the tenant cannot persuade the judge at the eviction trial that the defects make the premises uninhabitable, the judge can order the eviction of the tenant, and order the tenant to pay rent for the period that the tenant withheld the rent.
To sum up, it is important, for both their interests, that landlords and tenants remain in reasonable contact with each other. This can avoid many of the problems which can lead to misunderstandings that can escalate into evictions that could have been avoided.