What happens after there is a Breach of the Warranty of Habitability?

All residential leases in California have an implied warranty of habitability. But what can the tenant do if the implied warranty of habitability is breached by the landlord?

A tenant can plead breach of the warranty of habitability as a defense to an unlawful detainer (eviction) action. However, this defense is only available in a nonpayment of rent case. If the court finds that a substantial breach of the warranty of habitability has occurred, then under the law, the court must take certain actions. However, ‘substantial breach’ means failure by the landlord to comply with housing codes which materially affect the tenant’s health and safety. This is usually a high bar for the tenant to prove and usually cannot be done by the tenant’s testimony. I tell my clients to hire a private housing inspector who has been qualified as an expert in superior court.

If the court finds a substantial breach of the warrant of habitability, then it must determine the reasonable rental value of the tenant’s apartment with the housing code violations to the date of trial. In addition, the court must deny the eviction request if the tenant pays the back rent, usually within five days. The judge must award the tenant costs and, if applicable, attorney fees.

However, if the court finds that no substantial breach has occurred, then the landlord is entitled to evict if she failed to pay the rent, granted judgment and determined to be the prevailing party. The court may award court costs and attorney fees.

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Mary Catherine Wiederhold

Real Estate Attorney
1458 Sutter Street
San Francisco, CA 94109

Mary Catherine Wiederhold
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Courtney Brown
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