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A Renters Nightmare, A lawyers First Case, and the details of the Implied Warranty of Habitability

Updated on December 26, 2012

San Diego Eviction

unlawful detainer San Diego
unlawful detainer San Diego


If you’re here because you need to learn about the law and the implied warranty of habitability, then you’ll need to scroll down a bit to the appropriate heading. The first part of this article is more of a human-interest story.

I graduated from law school eighteen years ago, but I’ve only been practicing law for the past eight years. I’ve spent most of my career as an airline pilot, and it wasn’t until the airline I was working for, Northwest Airlines, entered bankruptcy that I decided it was time to brush off the law books. It was ten years after getting out of law school that I actually finally took the California Bar exam. Considering that only 35% of the people sitting for the exam passed, I was ecstatic to pass on my first try.

So what does one do with those results in hand? Well, besides still working as a pilot, I had a six-month-old daughter at home, and my life couldn’t be busier. So this is what my life looked like when one of my wife’s friends called to ask me a question. She was an elementary school teacher in a lower socio-economic area of San Diego. One of the parents was telling her how they were being evicted, and she asked if I’d help her for free. The parent, who I’ll call Rosa, didn’t speak English, and had no idea how to navigate a very complicated legal system.

The Problem

Without getting into a debate on immigration and living here without learning English, let me just say this family was one of the nicest, most honest, families I’ve ever come across. At the time I got the call, I knew next to nothing about landlord-tenant law. Law school was good at teaching about the Magna Carta, and the early feudal estates in land, but not a whole lot was covered about California eviction law in this decade. I knew I was headed to the library, but first, I got in the car and drove to get a copy of the summons and complaint from Rosa.

I was driving into an area that was part of San Diego, where I was born and raised, but I had never been to this neighborhood. I pulled into the driveway, collected my note pad and went to knock on the door. I was shocked. I had seen, maybe, these kinds of things on TV, but I somehow didn’t really believe they existed. I met Rosa’s husband, Carlos, and their two children. I’ve never seen so much mold in my life. I was uncomfortable just being there for the client interview. My first question was, why would someone stay here? I wish I could post pictures, but they're long packed away.

The parents were both from a poor rural area of Mexico, and they came to the United States to try and give their kids a better opportunity than they had. It required them to work several jobs, but they were happy to be here (legally), and happy to dedicate their lives to their children.

The mold had started in the bathroom and spread from there to the other rooms. The first thing I noticed was how many unpermitted alterations the house had. How did I know they were unpermitted? There were so many code violations that I couldn’t believe anyone would even attempt to rent out such a place. Some things were legal, I guess, but who wants carpet in the kitchen? The major problem was that the bathroom shared a common wall with one of their sons. This led to him having issues of allergic asthma or allergic rhinitis. After months of complaining their landlord, he was completely unresponsive to requests to deal with the mold which permeated most of the house. The bathroom window was nailed shut and there was no fan installed.

What was the violation that the landlord was evicting them for? He claimed it was for unpaid rent. The rental agreement said that rent was due on the first, but the landlord had been accepting rent on the 8th for over a year. Carlos explained that he got paid from his construction job on the 8th, and so his landlord agreed he could pay on the 8th. Only this time, he went to pay and the landlord refused to accept the money. He wanted them out immediately, and if he accepted the payment, then he wouldn’t have grounds for an unlawful detainer lawsuit. If he was just to give them a normal notice to leave, San Diego’s “Just Cause” eviction law would come into play, and he would need to give at least 60 days notice to terminate. You can read my hub article on eviction for details on how that works.

Evicting in San Diego


California Civil Code 1941 - Part of the solution

So off to the library I went. I quickly learned about the California Civil Code section 1941. You can find that code section, and every California code by clicking here. Although I could paraphrase the law, some subjects are important enough to quote. The law provides, “The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine.” It goes on to in section 1941.1 to identify several conditions that would violate section 1941.

You can skip to to the next section if you don't want to read the details of the civil code, but here it is for those who need it.

“1941.1… A dwelling shall be deemed untenantable… if it substantially lacks any of the following affirmative standard characteristics…

(a) Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.

(b) Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order.

(c) A water supply approved under applicable law that is under the control of the tenant, capable of producing hot and cold running water, or a system that is under the control of the landlord, that produces hot and cold running water, furnished to appropriate fixtures, and connected to a sewage disposal system approved under applicable law.

(d) Heating facilities that conformed with applicable law at the time of installation, maintained in good working order.

(e) Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order.

(f) Building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin.

(g) An adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the time of the commencement of the lease or rental agreement, with the landlord providing appropriate serviceable receptacles thereafter and being responsible for the clean condition and good repair of the receptacles under his or her control.

(h) Floors, stairways, and railings maintained in good repair.

(i) A locking mail receptacle for each residential unit in a residential hotel, as required by Section 17958.3 of the Health and Safety Code. This subdivision shall become operative on July 1, 2008.

Implied Warranty of Habitability - the Rest of the Solution

So the code was interesting, but it didn’t address every problem Rosa and Carlos had with their house. For that, we have to use something known as the Implied Warranty of Habitability. The law evolved from a time where the tenant had few rights. As things changed, there was a legal principle of an implied warranty of habitability. In the case of Green v. Superior Court (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704], the court held that all residential leases and rental agreements contain an implied warranty of habitability. This was a big deal. Prior to this, most rights were determined to originate from real property law, and not contract law. This case is actually an interesting read because it covers the transformation of the law from the Middle Ages to where we are today. I won’t tell you what the law used to to be in an effort to not cloud your mind with bad information. The court went over the modern day trend, and how it’s now difficult for tenants to make repairs to areas the landlord has control over. The court actually says that as a city dweller, we are more specialized in our skills and not able to make repairs “unlike the multi-skilled lessee of old.” Under the "implied warranty of habitability," the landlord is legally responsible for repairing conditions that seriously affect the rental unit's habitability. The court was very explicit in finding that the codified rules, explained below, didn’t preclude the tenant from seeking relief under common law.

So using contract law the court held that “Once we recognize that the tenant's obligation to pay rent and the landlord's warranty of habitability are mutually dependent, it becomes clear that the landlord's breach of such warranty may be directly relevant to the issue of possession. If the tenant can prove such a breach by the landlord, he may demonstrate that his nonpayment of rent was justified and that no rent is in fact "due and owing" to the landlord. Under such circumstances, of course, the landlord would not be entitled to possession of the premises.”

The Conclusion - The Law of Rent

So where did this leave me? I left the library at midnight. I’ll bet you didn’t know that many law libraries are open that late! I went home and completed the answer to the unlawful detainer complaint. The next day, the last day for filing a response, I was able to file the answer to the complaint. We set the matter for a trial, and I put in several calls to the other side. They weren’t returned for quite some time, but when I finally got through, I went through my list of legal defenses. They weren’t interested in hearing any of this; they wanted to go to trial. I told Rosa that they needed to try and find another place to live, in the unlikely case that they lose. When I checked in a couple of days later, they reported back that they didn’t have any luck in finding a place. She said that nobody wanted to rent to them since they had been evicted. I couldn’t believe it. I told her, “you haven’t been evicted. We go to court next week.” It just showed their meek innocence and honest nature. I had to explain it to them, and you can read about that in my other hub article here.

So the trial date arrived. I was ready and the day we went into court the other side still didn’t want to talk to me in the hall. Before we began, the judge asked if we had tried to reach an agreement. I told them the other side didn’t want to talk to me and that I’m ready to proceed. She looked dumbfounded at the other side, “Really? Counselor, have you read the answer and the defense? Extensive mold.” So there it was, I knew I was on solid footing. It’s a nice feeling for a first case. I offered to talk to the opposing side, and they, this time, agreed. I knew that I was in a better position, but there were still some complicated issues. I couldn’t prove the causation to the the respiratory problems, and that was more suited for a civil case and not a defense to an unlawful detainer action. My goal was just to stop the eviction process and buy them some time to find a new place to live. I wanted them out of that place ASAP regardless. It really wasn’t habitable. So we negotiated a settlement that got them a little money, bought them some time, and dismissed the unlawful detainer lawsuit.

If I had not responded to the complaint, it would have had a different outcome. Many people ignore the matter and get a default judgment is entered against the tenant. That can have many implications on a credit score and a public record of the judgment that most likely includes a lot of other things besides rent. It is always important to respond. There are other cases where one doesn’t have to pay rent, an illegal rental, for example. You can still be evicted from an illegal rental (that's a whole different article!), but there won't be any monetary damages awarded. There are also many procedural requirements that landlords don’t follow. Most of my practice is helping landlords comply with the laws and do things right. The best investment one can make is to do things the legal way! There are a lot of other answers to eviction questions on my site at the FAQs by clicking here.


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