Smoke Detectors
The California Building Code gives you the details on where you must install smoke detectors. (Calif. Building Code § 310.9.) Install at least one smoke detector in every bedroom and one outside in the hallway. Install one detector on each level of the home, if you have a second floor or basement. On floors without bedrooms, detectors should be installed in or near living areas, such as dens, living rooms, or family rooms. Do not install them in the kitchen or close to the shower because steam may trigger frequent false alarms. You also need to think about where, exactly, to place the device. Generally, install detectors on the ceiling at least four inches out from the wall. If you must install them on the wall, place them at least four inches down from the ceiling but no lower than 12 inches from the ceiling. (Keep them high because smoke rises.) Place smoke detectors at the top of each stairwell and at the end of each long hallway.
Rent Withholding
A tenant may withhold rent if you fail to make necessary repairs. In fact, if you haven’t made repairs within 35 days after being ordered to by a government agency, the tenant is automatically entitled to withhold rent and the landlord is prohibited from demanding payment. (Civil Code § 1942.4.)
What Justifies Rent Withholding
For a tenant to legally withhold rent, the problems must not have been caused by the tenant, and both of the following must be true:
- The defects must be serious ones that threaten the tenant’s health or safety.
- The tenant must have given the landlord reasonable notice of the problem.
Severity of Problems
A tenant can withhold rent only if the premises have “substantial” defects. Examples of substantial defects are a bathroom ceiling that has collapsed and not been repaired; rats, mice, and cockroaches infesting the building; lack of heat or hot water; the presence of lead paint hazards in sufficient concentration (and extent); or the absence or malfunctioning of required door and window locks. Fairly trivial defects, such as leaky water faucets or cracked windows or plaster, aren’t enough to violate the implied warranty of habitability. A landlord’s breach of the duty to provide a tenantable dwelling rarely excuses the tenant’s duty to pay all of the rent due under the lease.
Maintenance of Appliances and Other Amenities
State and local housing laws deal with basic living conditions only— heat, water, and weatherproofing, for example. They do not deal with “amenities”— other facilities that are not essential but make living a little easier. Examples are stoves, refrigerators, drapes, washing machines, swimming pools, saunas, parking places, intercoms, and dishwashers. The law does not require the landlord to furnish these things, but a landlord who does might be required to maintain or repair them— not by state and local housing laws, but by the landlord’s own promise to do so.
If you violate an express or implied promise relating to the condition of the premises, the tenant may sue you for money damages, usually in small claims court. The tenant cannot repair the appliance and deduct the cost from the rent. Keep in mind that you can’t label an essential piece of equipment an “amenity” and hope to avoid either your duty to supply it or the consequences (such as a tenant’s rent withholding) if you fail to.
The Tenant’s Responsibilities
State law also requires tenants to use rented premises properly and keep them clean. Specifically, Civil Code § § 1941.2–. 3 require the tenant to:
- Keep the premises as “clean and sanitary as the condition of the premises permits.” For example, a tenant whose kitchen had a rough, unfinished wooden floor that was hard to keep clean would not be able to keep the floor bright, shiny, and spotless.
- Properly operate gas, electrical, and plumbing fixtures. Examples of abuse include overloading an electrical outlet, flushing large foreign objects down the toilet, and allowing bathroom fixtures to become filthy.
- Refrain from damaging or defacing the premises or allowing anyone else to do so.
- Use living and dining rooms, bedrooms, and kitchens for their proper respective purposes. For example, the living or dining room should not regularly be used as a makeshift bedroom.
- Report broken door or window locks in the dwelling unit. Tenants are specifically charged with the duty to alert you of malfunctioning locks in their units. If a tenant has not notified you of a problem, and you in fact are unaware of the broken device, you will not be liable for a violation of the state law.
In addition, under Civil Code § 3479, every tenant is prohibited from disturbing the neighbors’ peaceful enjoyment of their property. This is known as refraining from creating or allowing a “nuisance.”
To protect yourself, make sure your lease or rental agreement spells out basic tenant obligations.
The tenant cannot withhold rent or sue the landlord if the tenant has contributed to the poor condition of the premises. (CC § § 1929, 1941.2, and 1942( c).)
When tenants refuse to repair or pay for the damage they caused, you can sue the tenant, normally in small claims court, for the cost of the repairs. If the damage is very severe, such as numerous broken windows or holes in the wall, you can use a three-day notice and sue for eviction on the basis that the tenant has “committed waste” to the property.
The Tenant’s Right to Repair and Deduct
Under certain circumstances, a tenant can, without your permission, have a defect repaired and withhold the cost of the repairs from the following month’s rent. (CC § 1942.) The “repair-and-deduct” remedy is subject to the following restrictions:
- The defect must be related to “tenantability.” In other words, the problem must be serious and directly related to health or safety. Examples are broken heaters, stopped-up toilets, broken windows, and the absence or malfunctioning of legally required door and window locks.
- The defect or problem must not have been caused by the careless or intentional act of the tenant or a guest. Thus, a tenant who broke a window cannot use this remedy to replace it.
- The amount the tenant withholds must be less than one month’s rent.
- The tenant can use this remedy no more than twice in any 12-month period.
- Before having the repair done, the tenant must give the landlord or manager notice of the problem and a “reasonable” amount of time to fix it. The notice can be oral or written.
Of all these rules, the rule that the tenant give “reasonable” notice is the one most open to interpretation. According to Civil Code § 1942( b), reasonable notice is presumed to be 30 days. But it can be a lot less for an urgent problem, such as a defective heater in winter, a leaky roof during the rainy season, or a stopped-up toilet in a one-bath unit any time.
Retaliation
Retaliatory evictions and rent increases are illegal.
Total Destruction
Under California law, unless you and the tenant have agreed otherwise, total destruction of the premises cancels the rental or lease contract. The tenant’s obligation to pay rent ceases, and the landlord’s duty to provide housing is also extinguished. (CC § 1933( 4).) You do not need to return advance payments of rent.
Lawsuits Authorized by Statute
Landlords who have failed to maintain their property in accordance with the habitability requirements of Section 1941.1–. 3 of the Civil Code may be sued by a tenant if all the following requirements are met (CC § 1942.4.):
- The dwelling “substantially lacks” any of the habitability standards as set forth in Civil Code § 1941.1–. 3— for example, hot water and heating systems.
- A housing officer has inspected the premises and has given written notice to the landlord (or the landlord’s agent) that the condition must be repaired.
- At least 35 days have passed since the notice was issued, the defect has not been remedied, and there is no “good cause” for the delay.
- The defect was not caused by the tenant’s act or failure to maintain the dwelling in good order.
Limits on Using Handymen
Repair work that will cost over $ 500 per contract (labor and materials) must be done by a licensed contractor. You may use a handyman to do less expensive work, but the handyman must disclose to you, in writing, that he or she is not a licensed contractor. Penalties for violating this law fall upon the worker, not the hiring firm or individual. (B& P § § 7028.6 and 7030.)
Landlord’s Annual Safety Inspection
A landlord cannot insist on such inspections against the tenant’s will, even if a lease or rental agreement clause so provides. This is because the law does not allow the landlord to enter the dwelling against the tenant’s will— even on 24 hours’ notice— solely to perform inspections. (CC § 1954.) Any lease or rental agreement provision allowing for this is illegal and unenforceable. (CC § 1953( a)( 1).) Evicting a tenant who refused to allow such an inspection would constitute illegal retaliatory eviction. (CC § 1942.5( c).)
Cable TV
The federal government has something to say about your tenants’ rights, as explained in the Federal Telecommunications Act of 1996 (47 U.S.C. § § 151 and following). In this act, Congress decreed that all Americans should have as much access as possible to information that comes through a cable or over the air on wireless transmissions.
The Federal Communications Commission (FCC) has provided considerable guidance on residential use of satellite dishes and other antennas (Over-the-Air Reception Devices Rule, 47 C.F.R. § 1.4000, further explained in the FCC’s Fact Sheet, “Over-the-Air Reception Devices Rule”). Basically, the FCC prohibits landlords from imposing restrictions that unreasonably impair tenants’ abilities to install, maintain, or use an antenna or dish that meets criteria described below.
Permissible Installation
Tenants may place dishes or other antennas only in their own, exclusive rented space, such as inside the rental unit or on a balcony, terrace, deck, or patio. The device must be wholly within the rented space (if it overhangs the balcony, you may prohibit that placement). Also, you may prohibit tenants from drilling through exterior walls, even if that wall is also part of their rented space.
Tenants cannot place their reception devices in common areas, such as roofs, hallways, walkways, or the exterior walls of the building. Exterior windows are no different from exterior walls— for this reason, placing a dish or other antenna on a window by means of a series of suction cups is impermissible under the FCC rule (obviously, such an installation is also unsafe). Tenants who rent single-family homes, however, may install devices in the home itself or on patios, yards, gardens, or other similar areas.
Restrictions on Installation Techniques
Landlords are free to set restrictions on how the devices are installed, as long as the restrictions are not unreasonably expensive and are imposed for safety reasons or to preserve historic aspects of the structure. You cannot insist that your maintenance personnel (or professional installers) do the work. Nor can you require your tenants to submit their installation plans to you for prior approval, unless the reason for the prior review is a safety concern or to preserve the historical integrity of the property.
Safety Concerns
You can insist that tenants place and install devices in a way that will minimize the chances of obvious accidents and will not violate safety or fire codes. For example, you may prohibit placement of a satellite dish on a fire escape, near a power plant, or near a walkway where passersby might accidentally hit their heads. You may also insist on proper installation techniques, such as those explained in the instructions that come with most devices. What if proper installation (attaching a dish to a wall) means that you will have to eventually patch and paint a wall? Can you use this as reason for preventing installation? No— unless you have legitimate reasons for prohibiting the installation, such as a safety concern. You can, however, charge the tenant for the cost of repairing surfaces when the tenant moves out and removes the device.
Require tenants who install antennas to carry renters’ insurance.
If the installation (or removal) causes damage to your property, you can charge the tenant or use the security deposit to cover the repair costs. If a device falls or otherwise causes personal injury, the tenant’s rental insurance policy will cover a claim.