What are our tenant rights regarding rent withholding and abatement during unlivable condition of apartment? Should we sue them?

Asked almost 2 years ago - Santa Clara, CA

Our 2bed1b apt was flooded from upstairs plumbing work. For repairs, our carpets were removed; 2 closets emptied+ doors removed. 6 huge noisy fans+dehumidifier ran nonstop for 2 weeks. Bathroom door didn't shut. Toilet was hard to access due to a huge fan. Bedroom lights didn't work. We had no heat for 5 days.
We repeatedly asked our landlord to give us alternate apt, but got no response. We stayed with friends on most nights since our apt was unlivable. Now landlord is asking us to vacate the apt for 7 days to repair the ceiling.
We have asked them to (a)pay for alternate accommodation for these 7 days (b)not charge rent for 2 weeks when apt was unlivable (c)pay for electric bills of the fans. The landlord refused all above & has only offered to forego rent for 7 days when we are vacated.

Attorney answers (4)

  1. Harris Justin Brumer


    Contributor Level 14


    Lawyers agree


    Best Answer
    chosen by asker

    Answered . As the other attorneys have mentioned, you may file a lawsuit against the landlord to recover money damages if the landlord does not repair serious defects in the rental unit in a timely manner. This kind of lawsuit can be filed in small claims court or superior Court, depending on the amount demanded in the suit. You may file this kind of lawsuit without first trying another remedy, such as the repair and deduct remedy. However, you should always give the landlord notice of the problem and your intetion. If you win the lawsuit, the court may award you actual damages, plus “special damages” in an amount ranging from $100 to 5,000. “Special damages” are costs that the tenant incurs, such as the cost of a motel room, because the landlord did not repair defects in the rental unit. The party who wins the lawsuit is entitled to recover his or her costs of bringing the suit (for example, court costs).
    The court also may order the landlord to abate (stop or eliminate) a nuisance and to repair any substandard condition that significantly affects the health and safety of the tenant. For example, a court could order the landlord to repair a leaky roof, and could retain jurisdiction over the case until the roof is fixed.

    However, in order for a tenant to win such a lawsuit against the landlord, all of the following conditions must be met:

    1) the rental unit has a serious habitability defect, that is, the rental unit contains a lead hazard that endangers the occupants or the public; or substantially lacks any of the a nuisance endangers the health, life, safety, property, or welfare of the occupants or the public; and

    2) A housing inspector has inspected the minimum requirements for habitability listed in the eight categories in Civil Code Section 1941.1.; or has been declared substandard because, for example, a structural hazard, inadequate sanitation, or premises and has given the landlord or the landlord’s agent written notice of the landlord’s obligation to repair the substandard conditions or abate the nuisance; and

    3) the nuisance or substandard conditions continue to exist 35 days after the housing inspector mailed the notice to the landlord or agent, and the landlord does not have good cause for failing to make the repairs; and

    4) the nuisance or substandard conditions were not caused by the tenant or the tenant’s family, guests, or pets; and

    5) the landlord collects or demands rent, issues a notice of rent increase, or issues a three-day notice to pay rent or quit after all of the above conditions have been met.

    If you pursue this case on your own in small claims court, due to amount of damages (below $10K in San Diego County), please consult Civil Code Section 1942.4 as part of your case preparation. Otherwise, see a landlord tenant attorney, legal aid organization, or housing clinic in order to understand the risks involved.

  2. Nathalie Lezama Ferro

    Contributor Level 2


    Lawyer agrees


    Answered . Send them your requests in writing explaining how many days you have been in an uninhabitable house. Keep copies. Send certified receipt requested. Then you may withhold the amount from the rent due. If he sues or tries to evict you, you can prove your case.

  3. Michael Ryan Juarez

    Contributor Level 16

    Answered . I could not agree more with the other two attorneys; they have both provided accurate advice and left little for me to add. Regarding request (a), if the LL refuses to pay for a motel/alternate accommodations and you stay with your friend it may be hard to prove that expense (friends increase in costs and decrease in comfort) so in the alternative you could request damages in the amount of loss use of your condo. Which could be easily calculated with this equation; monthly rent/30 days x amount of days without condo. Good luck and try to document as much as you can. Telling your LL of your intentions may avoid the expense and delay in going to court and motivate him to just get a hotel for your family.

    -Michael R. Juarez Law Office of Juarez and Schaeffer PO Box 16216 San Diego, CA 92105 (619) 804-4327 www.jslaw.... more
  4. Rixon Charles Rafter III

    Contributor Level 20


    Lawyer agrees


    Answered . You appear to have grounds to sue. Small claims, no lawyers. Keep receipts for everything. Keep copies of all voicemails, letters, notes, notices etc.

    READ THIS BEFORE CALLING OR EMAILING ME: I am licensed to practice before the state and federal courts in Virginia.... more

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