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Should I withhold rent if landlord is not repairing items that's Code Enforcements cited them for?

San Bernardino, CA |

Me and my wife have giving our landlord plenty of time to fixed repairs that is making our living conditions inhabitable for us and our kids. It's been over a year that things have not been address by the landlord or maintence and it has gotten worse. Even Code Enforcement are not really doing anything about it.

Attorney Answers 3


There are inherent risks for a tenant to withhold rent without the advice of legal counsel. An eviction on your record will make it difficult for you to rent again in the near future. Your post does not indicate the specific condition or conditions which you contend render the rental dwelling uninhabitable. Generally speaking, a tenant has remedies which include withholding rent, bringing a lawsuit for damages, abandonment (moving out) and repair-and-deduct (for limited situations).

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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I agree with my colleague. You should avoid withholding rent unless you absolutely have no other option. You should consult with an attorney.

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Once the government cites a landlord to make repairs, and then the landlord doesn't make the repairs, and then 35 days go by, and you haven't caused the problems, the landlord loses the legal right to demand, accept or retain rent. See Civil Code section 1942.4. The way the law is written, the landlord should literally take your rent out of his pocket and throw it back at you.

So, now let me any YOUR question. SHOULD you withhold rent? I would, but then I could represent myself ably in the upcoming eviction action. You cannot. Frankly, most attorneys cannot safely navigate the stormy waters of unlawful detainer trials.

What you SHOULD do is this: pay the rent, and then sue the landlord for accepting, demanding, and retaining your rent in violation of Civil Code section 1942.4. You will also be entitled to statutory damages--that is, an extra little penalty the law sticks the landlord with--for accepting your rent. Statutory damages are "between $100 and $5000." The Judge decides what amount is appropriate. If you hire an attorney to represent you in this action, you will be able to recover your attorneys' fees if you prevail in the lawsuit.

What you SHOULD ALSO do is contact the City, and let them know that the landlord has not made the repairs that it ordered him to make. Do not do this in a pushy way. Do it in a nice, hate-to-bother-you way. Keep in mind that the inspectors are likely overworked and underpaid. I always tell my clients to bring them cookies. Everyone loves cookies. Get the inspectors on your side. Ask them to come out and reinspect and re-cite if necessary. The City can take further legal action against landlords who disobey their orders.

So, what you CAN do is not pay the rent, since the landlord has no legal right to collect the rent. If you go this route, however, you need to hire a very very competent attorney experienced in unlawful detainer defense to represent you once the eviction lawsuit based on your failure to pay rent is served on you. I don't recommend this course of action, though. Too many things can go wrong.

Good luck.

Important things to remember: 1. The fact that I answered a question that you asked me on line, doesn't make me your lawyer. 2. Opinions are like noses--everyone has one. I just happen to think my opinions are right, but check with another lawyer too.

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