The Implied Warranty Of Habitability Part 1: What Is It?

In simple terms, the implied warranty of habitability is like any other warranty, i.e., one person to a transaction is giving a warranty to the other that the product or service in question will meet or perform to certain standards. When a car dealer gives the buyer a warranty for example, the dealer is saying that the car will function at a certain standard and, if not, the dealer will repair at the dealer’s cost.

In landlord-tenant law, a landlord, whether he knows it or not, is extending a similar warranty to the tenant every time he enters into a residential lease. In California, for example, the landlord’s warranty of habitability exists in every residential lease whether it’s written in the lease or not. How can that be? Because the law implies the existence of the warranty regardless of whether the lease language contains it. In other words, the law engrafts the warranty-writes it in invisible ink-right into every residential lease. The courts will enforce that implied warranty even if the terms of the lease don’t actually include it.

So what is the implied warranty of habitability? It is a warranty, a promise if you will, by the landlord to the tenant given at the time of the lease that the rental property meets certain minimum standards of habitability, that the rental is fit for human living, and that the landlord will do repairs, at his cost, if the rental falls below those standards during the tenancy.

The statutes that define the implied warranty of habitability contain a laundry list of requirements with which a rental property must comply. In summary, the implied warranty requires that a residential rental property have:

1. Effective waterproofing and weather protection;

2. A water supply that produces hot and cold running water and is connected to a sewage disposal system;

3. Plumbing, gas or electrical facilities according to code and in good working condition;

4. Adequate electrical lighting, heating, natural light and ventilation;

5. Adequate sanitation, trash storage and removal, no infestation, and the common area and grounds maintained in a sanitary condition;

6. No general dilapidation. Floors, stairways, and railings must be maintained in good repair;

7. No structural hazards including deteriorated or inadequate foundations, floor supports, vertical supports, roof or horizontal supports;

8. Adequate and working toilet, bathtub or shower, and kitchen sink;

9. A deadbolt lock on all swinging entry doors that extends at least 13/16th of an inch beyond the strike plate and into the door jamb;

10. Adequate exit facilities, fire-resisting or fire extinguishing systems, and the building, equipment, grounds, and vegetation properly maintained so as to not cause a fire, health or safety hazard;

11. No nuisance as the term is defined by law; and

12. At least one usable telephone jack and inside telephone wiring kept in good working order.

The rental property must comply with the implied warranty of habitability at the time of the lease and the landlord must repair all subsequent dilapidations that render the property untenable, except for those conditions caused by the tenant. The tenant is also required to keep the condition of his portion of the premises clean and sanitary. The tenant must properly use all electrical, gas, and plumbing fixtures. The tenant must also use the living, sleeping, cooking, and dining areas as designed and intended. If the tenant fails to do so, the landlord is relieved of the obligation to repair.

If the tenant makes a legitimate complaint relating to one of the categories listed above, good rental property management requires that the landlord fix the problem. However, it is also good practice to keep all receipts evidencing the repair and have the tenant acknowledge, in writing, that the condition has been adequately repaired. I have seen tenants raise habitability claims at trial respecting conditions that the landlord previously repaired. If you’re a landlord, you’ll want to be able to prove that you completed the repair about which the tenant complains.

Often times, a tenant who foresees a problem with paying the rent will begin complaining to you about the condition of the premises. The tenant may also complain to the city’s housing authority. The tenant is doing this to discourage the landlord from filing an eviction case when the inevitable nonpayment of rent occurs or to set up a breach of the implied warranty of habitability defense to any later eviction action. A tenant may also complain to the city in order to set up a retaliatory eviction defense should the landlord later seek to evict. Lastly, a common tenant practice is to complain about the property’s condition to justify blowing out of a term lease.

I recommend to clients that they respond to the tenant’s complaint, make repairs as needed and document. But always insist upon the rent; don’t be reluctant to serve a 3-day notice, file an eviction case, or sue a tenant who has abandoned a term lease just because the tenant made complaints about the property. Experienced landlord attorneys see the habitability issue all the time. We know how to deal with it at trial. (I will not disclose how in this article because I don’t want tenants to read it and better prepare their cases). In my next article on the implied warranty of habitability, I will write about the consequences to the landlord of breaching the warranty.


San Diego Landlords: Beware Of Eviction Control When Trying To End A Month-To-Month Tenancy

Mercifully, San Diego does not have rent control.  Unfortunately, San Diego does have its close relative-the unwelcome mother-in-law of rent control-better known as eviction control or “for cause” eviction.  

San Diego’s eviction control ordinance substantially impacts a landlord’s right to end a month-to-month tenancy.  Moreover, the ordinance can be a trap for the unwary landlord unfamiliar with its mandatory notice provisions.  A notice terminating a month-to-month tenancy that does not comply with the eviction control ordinance could cause the inexperienced landlord to lose his eviction case at trial and have to start the eviction process all over again. 

What is San Diego’s eviction control ordinance? The ordinance applies to every tenancy of two years or greater duration.  When a tenant has lived in your rental property for two years or more, you may only terminate his month-to-month tenancy, or refuse to renew his lease, for certain specified reasons.  On the face of it, the authorized reasons in the ordinance don’t seem unreasonable.  As examples, a landlord may only terminate the tenancy for things such as nonpayment of rent, breach of lease, tenant use of the property for an illegal purpose, or landlord withdrawal of the premises from the rental market just to name a few.  

The ordinance’s restrictions wouldn’t appear too onerous to most landlords since a landlord’s typical reasons for terminating a tenancy match those permitted by the eviction control ordinance.  However, the ordinance’s mandates do not end there.   The ordinance further requires that the landlord serve on the tenant a notice setting out the reason or reasons for terminating the tenancy at the same time that the landlord serves the 30-day notice, 60-day notice, or 3-day notice, whichever the case requires.  

In other words, to comply with San Diego’s eviction control ordinance, you must first have a permitted basis for terminating the tenancy.  In addition, you must serve a separate notice on the tenant setting forth that permitted reason at the same time that you serve the notice terminating the tenancy.  Thus, a tenant who is protected by the eviction control law should get two notices, one terminating the tenancy (the 3-day, 30-day, or 60-day depending upon the case) plus another notice setting forth the reason authorized by the eviction control ordinance.  

Additionally, to be valid, both notices must be served according to law, i.e. they must be personally served on the tenant or served through a valid substitute service or post and mail service.  I can’t tell you how many landlords I have seen in my practice make the mistake of not complying with the eviction control ordinance.  In fact, nearly every client I see who has tried to terminate a month-to-month tenancy with a 30-day or 60-day notice either didn’t comply with the ordinance or didn’t serve it right.  

The consequences for the landlord to not terminating the tenancy right can be dire.  At a minimum, the landlord will suffer the lost time and inconvenience of having to serve a new notice.  If the landlord has sued on a bad notice, the consequences can be worse.  The tenant will win the eviction case and the landlord will have to start the entire process over again, thus losing more time, rent, plus costs and attorney’s fees.  If you want to end a month-to-month tenancy, or not renew a tenancy, on some ground other than non-payment of rent, you should consult a lawyer to make sure that you comply with San Diego’s eviction control ordinance.

San Diego Landlords: Should You Do Your Own 3-Day Notice To Pay Rent or Quit?

To do or not to do; that is the question.   

My apologies for the slight revision of Hamlet but then again Shakespeare never had to deal with California eviction law.  California landlords, on the other hand, do.  And every landlord in California has had to confront the issue:  “Should I fill out the 3-Day Notice to Pay Rent or Quit and serve it myself or should I have a professional do it?”  

Considering the vital importance of the 3-day notice to the eviction case that follows, the answer is not as simple as it seems.  To California landlords out there struggling with this question, this article is written for you.  I hope to provide you with the information that you need to decide whether to handle the 3-day notice yourself or have your lawyer and his process server take care of it.  

First, a brief explanation of what a 3-Day Notice to Pay Rent or Quit is.  The 3-day notice is the first step in the eviction process based upon the tenant’s failure to pay rent.  The notice is served on the tenant.  The tenant then has three days to pay the rent in full.  If the tenant pays the rent within the three days, the landlord must accept it, the default is cured, and the tenancy goes on.  If the tenant fails to pay the rent within the three days, the tenant is in default and the landlord may file an eviction lawsuit (called an unlawful detainer in California) on day four.  

After the three-day notice period runs, the tenant is no longer permitted to pay the rent and the landlord need not accept it.  The landlord may accept rent if he wants to keep the tenant but he does not have to.  If the landlord accepts rent after the three day period expires, however, the landlord waives his right to declare a default and cannot evict the tenant until a future non-payment of rent occurs.    

In other words, if a problem tenant fails to pay rent and you want to get rid of him, don’t accept any rent after expiration of the three-day notice.  If you do accept the rent, you’ll waive the default and won’t be able to evict until the tenant fails to pay rent again, at which time you’ll have to serve a new 3-day notice.  

When deciding whether to do the 3-day notice yourself, remember the 4 “C’s”:  Content, Communicate, Consequences, and Cost.  Regarding Content, the law mandates that certain information be included in the 3-day notice.  Many landlords rely upon pre-printed form 3-day notices.  The landlord then hand writes in the information particular to that tenant and gives the notice to the tenant.  These forms are usually legally sufficient.  Form 3-day notices sold by a company called nolo or forms available through the San Diego Apartment Owners’ Association are kept up to date and comply with all of California’s legal requirements.  Most experienced landlords use the forms without a problem.  

Even with pre-printed forms, however, I have seen landlords make two types of mistakes.  First, I have seen landlords use out-of-date forms.  If you use a form that does not reflect current legal requirements, you could lose at trial and suffer the Consequences described below.  Thus, make sure that the form you use is the most current version.  Second, I have seen landlords fill out the form incorrectly or incompletely.  If you use a form, make sure that you’ve filled in all of it.  If you’re not sure about a part of the form, don’t guess.  Hire a professional to take care of it and teach you how to complete the form for future use.  Don’t get caught with an incorrectly filled out notice or it could result in you losing your eviction case at trial.    

The next “C” is Communicate.  Specifically, the law requires that the notice be given to the tenant in a certain manner.  If you don’t serve the notice correctly, you could lose at trial later.  The first method of serving the notice that the law permits is personal service.  By personal service, I mean that the landlord simply hands a copy of the notice to the tenant.  If you personally serve the tenant, make a note of the date and time so that your lawyer can prepare the Proof of Service later.  

The second method for serving a 3-day notice is called “substitute service”.  Substitute service means that the landlord gives the notice to someone at the premises who is over the age of 18 and then mails a copy to the tenant at the property address.  Substituted service becomes necessary when you go to your rental property to serve the notice and the tenant isn’t there but another adult is, such as an adult child, spouse, friend, or parent.  When that occurs, the law allows the landlord to give the notice to the other adult and then mail a copy to the tenant.  

In such a case, be sure that you mail.  I’ve seen landlords make the mistake of giving a proper notice to an adult at the premises but the service is nonetheless defective because the landlord forgot to mail a copy to the tenant.  Also, make a note of when (date and time) that you substitute served the tenant, the name of the person who you gave the notice to, and the date that you mailed the notice.  

The third legally authorized method of service is called “nail and mail” or “post and mail.”  Suppose you go to the property and nobody is there?  How do you serve the notice then?  Easy.  Post a copy of the notice in a conspicuous place on the property (usually on the door) and mail a copy to the tenant.  Make a note of when you posted and mailed and you’re set.  

Remember one extremely important fact:  You must serve a notice on each tenant and every known occupant.  This is also a common mistake that I’ve seen in my practice.  A landlord will give one notice to the tenant who answers the door but doesn’t serve the two roommates. In such a case, you could lose later at trial against the two roommates since they were not served with notice.  

The third “C” is Consequences.  By that I mean, what are the consequences to the landlord of serving a 3-day notice that is defective in content or incorrectly served.  The answer is that you are in trouble if the tenant contests the case and shows up at trial.  If the tenant doesn’t contest the case or doesn’t show up at trial, i.e. you win by default judgment, then you got away with your mistake and you’ll win anyway. 

But that is the risk that you take if your notice is bad, either in content or manner of service.  You’ll be down to banking on the tenant not answering your lawsuit or not showing up to trial.  If the tenant contests the case and shows up ready for trial, either himself or through a lawyer, you’re sunk.  

So let’s assume for a moment the worse case scenario:  Your notice is no good.  You’re in the courtroom waiting for trial and nearby is Mr. Tenant with his lawyer ready to slice your case to ribbons.  How bad will the damage be?  Pretty bad.  When the defect in the notice (or how it was served) is pointed out to the court, the court will dismiss your case and tell you to start over. You read that right.  You will have to start the entire process over, beginning with serving a new (and correct) notice and then a new lawsuit.  All of the time that you wasted going to trial in the first case (in San Diego that would be about five weeks) will amount to rent-free living for your tenant.  

It gets worse.  Since the court dismissed your case, the tenant, under California law, would be the prevailing party.  Therefore, you will have to pay the tenant’s costs and his attorney’s fees if your written lease has an attorney’s fees provision which it almost certainly does.  Thus, if you go to trial and lose, you will have to suffer the tenant living rent-free at your property for an additional five weeks or more and you will have to pay the tenant’s litigation costs and his attorney’s fees in addition to your own.  To put it more concisely, get the notice right.  

The final “C” is Cost.  What will it cost you to have a lawyer prepare, and a professional process server serve, the 3-day notice.  In San Diego, the attorney’s charge to prepare a 3-day notice usually runs between $70.00 and $90.00.  I charge $70.00.  The process server will typically charge anywhere from $35.00-$45.00 per tenant to serve the notice.  Thus, if two tenants reside at your property, you’re looking at a total charge of about $150.00.  

I always recommend to clients that they use a registered process server for two reasons.  First, sometimes the tenant will deny at trial that he received the notice.  In that case, I can call the process server to testify. Whenever I’ve had to call the process server at trial, my client has always won.  In my experience, the court gives the process server’s testimony considerable weight because the process server is viewed as a neutral, impartial, objective witness who is far more credible than the freeloading tenant.  The second reason that I recommend a process server is simple.  When a process server delivers the notice, I know that the service will be done right.  

I’ve provided the above article to help landlords in California decide whether they should do it themselves when it comes to the 3-Day Notice to Pay Rent or Quit or have a lawyer and process server do it.  I hope that the article was informative and helps California landlords make the decision that works out best for them.