California law allows a residential tenant to make repairs and then deduct the cost from her monthly rent. This is commonly known as repair and deduct. However, certain procedures must be followed before this action can be taken. For example, the tenant must give the landlord notice of the problems to be repaired. The law does not expressly state how the tenant is to give notice. However, I counsel my clients to contact the landlord in writing whenever possible. It is likely that once the landlord receives the tenant’s letter he will make the repairs.
The tenant must give the landlord a ‘reasonable time’ to make the repairs. The law states that 30 days is generally considered a reasonable time. However, the law allows for a shorter time for the tenant to make repairs and then deduct the cost of repairs from the rent if all the circumstances justify it. For instance, a tenant should not have to wait 30 days to call a plumber if the water main to the tenants’ unit is broken and she has no water.
The law also states that the tenant could use the ‘repair and deduct’ remedy only to make repairs when the repair cost does not exceed one month’s rent. It is unclear if the tenant can deduct from successive months if the repair is more than the rent. To be on the safe side, I counsel tenants to send the landlord an estimate of the repair along with their letter of the need for repair. That way, the landlord is on notice and might even send over a repair person himself. The law does not allow tenants to make repairs and then deduct rent more than twice within a 12-month period.
Withholding rent in order to make repairs can lead to a Three Day Notice and an unlawful detainer. The prudent tenant should consult with a tenant’s attorney before taking this action.