People have all sorts of personal definitions of what is “habitable” when it comes to their rental home. No, tenants, the blinds being askew is not a breach of the warranty of habitability. Likewise, landlords, the lack of hot water is not ‘no big deal’ to be fixed sometime later in the week. For better or worse, California law is very clear when it comes to rental property habitability.
Let’s review California Civil Code section 1941.1 setting forth the nine (9) basic categories that must always be in proper working order (and the ‘catch-all’ health and safety codes that also accompany, see below).
Tip: Both landlords and tenants should document any damage and repairs in writing and with photographs.
California Civil Code section 1941.1
The way the law is worded, a property is “untenantable” (not habitable) if it “substantially lacks” any of the following affirmative standard characteristics:
(1) Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
(2) Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order.
(3) 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.
(4) Heating facilities that conformed with applicable law at the time of installation, maintained in good working order.
(5) Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order.
(6) 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.
(7) 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.
(8) Floors, stairways, and railings maintained in good repair.
(9) A locking mail receptacle for each residential unit in a residential hotel.
However, that same law then (as with most laws), “links” itself to additional requirements found in the Health and Safety Code, namely Sections 17920.3 and 17920.10 of the Health and Safety Code….
Sections 17920.3 and 17920.10 of the California Health and Safety Code
These two additional “catch alls” provide further detail and some signification considerations for landlords. Essentially, if your rental fits within any of these descriptions, it may be “untenantable” (not habitable). Let’s review…
Health and Safety Code – HSC § 17920.3
Any building or portion thereof including any dwelling unit, guestroom or suite of rooms, or the premises on which the same is located, in which there exists any of the following listed conditions to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants thereof shall be deemed and hereby is declared to be a substandard building:
(a) Inadequate sanitation shall include, but not be limited to, the following: (1) Lack of, or improper water closet, lavatory, or bathtub or shower in a dwelling unit. (2) Lack of, or improper water closets, lavatories, and bathtubs or showers per number of guests in a hotel. (3) Lack of, or improper kitchen sink. (4) Lack of hot and cold running water to plumbing fixtures in a hotel. (5) Lack of hot and cold running water to plumbing fixtures in a dwelling unit. (6) Lack of adequate heating. (7) Lack of, or improper operation of required ventilating equipment. (8) Lack of minimum amounts of natural light and ventilation required by this code. (9) Room and space dimensions less than required by this code. (10) Lack of required electrical lighting. (11) Dampness of habitable rooms. (12) Infestation of insects, vermin, or rodents as determined by a health officer or, if an agreement does not exist with an agency that has a health officer, the infestation can be determined by a code enforcement officer, as defined in Section 829.5 of the Penal Code, upon successful completion of a course of study in the appropriate subject matter as determined by the local jurisdiction. (13) Visible mold growth, as determined by a health officer or a code enforcement officer, as defined in Section 829.5 of the Penal Code, excluding the presence of mold that is minor and found on surfaces that can accumulate moisture as part of their properly functioning and intended use. (14) General dilapidation or improper maintenance. (15) Lack of connection to required sewage disposal system. (16) Lack of adequate garbage and rubbish storage and removal facilities, as determined by a health officer or, if an agreement does not exist with an agency that has a health officer, the lack of adequate garbage and rubbish removal facilities can be determined by a code enforcement officer as defined in Section 829.5 of the Penal Code.
(b) Structural hazards shall include, but not be limited to, the following: (1) Deteriorated or inadequate foundations. (2) Defective or deteriorated flooring or floor supports. (3) Flooring or floor supports of insufficient size to carry imposed loads with safety. (4) Members of walls, partitions, or other vertical supports that split, lean, list, or buckle due to defective material or deterioration. (5) Members of walls, partitions, or other vertical supports that are of insufficient size to carry imposed loads with safety. (6) Members of ceilings, roofs, ceiling and roof supports, or other horizontal members which sag, split, or buckle due to defective material or deterioration. (7) Members of ceilings, roofs, ceiling and roof supports, or other horizontal members that are of insufficient size to carry imposed loads with safety. (8) Fireplaces or chimneys which list, bulge, or settle due to defective material or deterioration. (9) Fireplaces or chimneys which are of insufficient size or strength to carry imposed loads with safety.
(c) Any nuisance.
(d) All wiring, except that which conformed with all applicable laws in effect at the time of installation if it is currently in good and safe condition and working properly.
(e) All plumbing, except plumbing that conformed with all applicable laws in effect at the time of installation and has been maintained in good condition, or that may not have conformed with all applicable laws in effect at the time of installation but is currently in good and safe condition and working properly, and that is free of cross connections and siphonage between fixtures.
(f) All mechanical equipment, including vents, except equipment that conformed with all applicable laws in effect at the time of installation and that has been maintained in good and safe condition, or that may not have conformed with all applicable laws in effect at the time of installation but is currently in good and safe condition and working properly.
(g) Faulty weather protection, which shall include, but not be limited to, the following: (1) Deteriorated, crumbling, or loose plaster. (2) Deteriorated or ineffective waterproofing of exterior walls, roofs, foundations, or floors, including broken windows or doors. (3) Defective or lack of weather protection for exterior wall coverings, including lack of paint, or weathering due to lack of paint or other approved protective covering. (4) Broken, rotted, split, or buckled exterior wall coverings or roof coverings. (h) Any building or portion thereof, device, apparatus, equipment, combustible waste, or vegetation that, in the opinion of the chief of the fire department or his deputy, is in such a condition as to cause a fire or explosion or provide a ready fuel to augment the spread and intensity of fire or explosion arising from any cause.
(i) All materials of construction, except those that are specifically allowed or approved by this code, and that have been adequately maintained in good and safe condition.
(j) Those premises on which an accumulation of weeds, vegetation, junk, dead organic matter, debris, garbage, offal, rodent harborages, stagnant water, combustible materials, and similar materials or conditions constitute fire, health, or safety hazards.
(k) Any building or portion thereof that is determined to be an unsafe building due to inadequate maintenance, in accordance with the latest edition of the Uniform Building Code.
(l) All buildings or portions thereof not provided with adequate exit facilities as required by this code, except those buildings or portions thereof whose exit facilities conformed with all applicable laws at the time of their construction and that have been adequately maintained and increased in relation to any increase in occupant load, alteration or addition, or any change in occupancy.
When an unsafe condition exists through lack of, or improper location of, exits, additional exits may be required to be installed.
(m) All buildings or portions thereof that are not provided with the fire-resistive construction or fire-extinguishing systems or equipment required by this code, except those buildings or portions thereof that conformed with all applicable laws at the time of their construction and whose fire-resistive integrity and fire-extinguishing systems or equipment have been adequately maintained and improved in relation to any increase in occupant load, alteration or addition, or any change in occupancy.
(n) All buildings or portions thereof occupied for living, sleeping, cooking, or dining purposes that were not designed or intended to be used for those occupancies.
(o) Inadequate structural resistance to horizontal forces.
“Substandard building” includes a building not in compliance with Section 13143.2.
However, a condition that would require displacement of sound walls or ceilings to meet height, length, or width requirements for ceilings, rooms, and dwelling units shall not by itself be considered sufficient existence of dangerous conditions making a building a substandard building, unless the building was constructed, altered, or converted in violation of those requirements in effect at the time of construction, alteration, or conversion.
Health and Safety Code – HSC § 17920.10
(a) Any building or portion thereof including any dwelling unit, guestroom, or suite of rooms, or portion thereof, or the premises on which it is located, is deemed to be in violation of this part as to any portion that contains lead hazards. (See code for further definitions of lead hazards, which, again, link to even more sections and definitions. As of this article’s publication, the following link will take you to the full text of the code: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-17920-10.html.)
As you can see, if you did not already know, California is tenant-friendly with a host of detailed requirements to ensure a property is “habitable.” Many of these items are commons sense, but the law does leave some grey areas and subjectivity. When in doubt, it’s likely best to address the issue, or, at least, consult with appropriate legal counsel.
– Devin Lucas
Author Devin R. Lucas is a Real Estate Attorney, Broker and REALTOR®, specializing in Newport Beach, Costa Mesa and Orange County coastal communities, serving individual and investors in residential real estate.
Lucas Real Estate – Attorney Devin Lucas and CPA Courtney Lucas – are experts in California landlord-tenant matters and offer some local property management services, advice, consultation and document drafting such as lease agreements.
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California Health and Safety Code – HSC § 17920.3
California Health and Safety Code – HSC § 17920.10
California Civil Code section 1941.1
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