Legal • March 1, 2005
“Repair & Deduct” – A Primer
By David Wilson
We regularly receive panicked phone calls at the BPOA office, from landlords who are at the receiving end of a tenant’s threat to “repair and deduct.” Many tenants, it seems, believe they possess a unilateral right to “fix” problems that may or may not really exist, and then deduct the cost of the repair from their rent. Sadly, not enough landlords know that the tenant is WRONG.
Section 1942 of the California Civil Code lays out the very limited circumstances under which a tenant really can repair and deduct. There are three basic requirements:
1. There must exist “dilapidations” that “render the premises untenantable,” which the landlord ought to repair.
2. The tenant must provide written or oral notice to the landlord (or his agent) of the problem.
3. A “reasonable” amount of time must pass without landlord action.
Once these conditions have been met, the tenant may repair and deduct, but only so long as the cost of the repairs does not exceed one month’s rent. Alternatively, the tenant may simply move out; the law frees the tenant from any lease obligations under these circumstances.
What is a “reasonable” amount of time? Waiting 30 days creates a presumption that the tenant has waited long enough. But that presumption only changes who has to produce evidence first (shifting it to the landlord to prove that 30 days wasn’t reasonable), so the landlord can rebut it. Also, 30 days isn’t a minimum --- depending on the nature of the problem, the tenant might be entitled to repair and deduct much earlier.
Exceptions: The tenant may NOT exercise the repair-and-deduct option if the tenant has contributed substantially to the “dilapidation” by doing any of the following:
1. Not kept the premises clean and sanitary.
2. Disposed of garbage improperly (or not at all).
3. Improperly used or operated or maintained an electrical, plumbing, or gas fixture.
4. Permitted someone else to destroy/deface/damage any part of the premises.
5. Used the premises for a purpose other than what was intended—namely, as a residence, sleeping in the bedrooms, cooking in the kitchen, etc.
Finally, note that the repair-and-deduct option is only available to a tenant twice in a twelve-month period.