Habitability Disputes and How to Avoid Them

Landlord & Tenant Law by Ashlee D. Gonzales, Esq.

While most landlords and tenants enjoy a peaceful and cordial relationship, there are times wherein disputes arise. This causes stress on both sides, as well as the potential for litigation, spending of resources, and a huge time commitment. In this article I will go over the most common disputes we see come through our firm related to habitability, as well as how to help avoid them. There are several simple steps a landlord can take to help avoid liability and maintain a peaceful and cordial relationship with their tenant.

Habitability Issues – Overview

By far the most common disputes that come through our firm are related to habitability issues. Under the Civil Code and rental agreements, residential landlords have an obligation to provide a habitable premises. There is a warranty of habitability implied in every residential rental agreement and this warranty is described in California Civil Code Section 1941.1 and includes the minimum basic requirements that make a dwelling habitable. Some of the basic requirements are: 1) effective waterproofing and weather protection of roof and exterior walls; 2) working plumbing and gas facilities; 3) working hot/cold water, as well as an operable sewage disposal system; 4) working heating and electrical; 5) free of garbage, debris, rodents, etc.; 6) garbage receptacles; and 7) floors, stairways, and railing in good condition.

In the 1974 California Supreme Court case Green v. Superior Court, the Court recognized that a landlord tenant relationship creates a duty for landlords to maintain a habitable dwelling for the entirety of the tenancy. As described above, the Court adopted an implied warranty of habitability for all residential leases. The Court also noted that while the dwelling did not need to be in perfect condition, the dwelling needed the foregoing mentioned “bare living requirements” to comply with California law.

Common Landlord Mistakes with Habitability

One of the most common mistakes we see a landlord make regarding habitability requirements is that the landlord puts a clause in the written lease or otherwise has the tenant waive their rights to any of these habitability requirements. Further, we sometimes see a landlord put the duty to maintain these baseline requirements on the tenant. A residential tenant in California cannot waive or be responsible for the availability and maintenance of the base line habitability requirements under Section 1941.1. Any provision in a written lease or verbal agreement is void as a matter of public policy. In other words, regardless of what the lease says, if there are any issues with any of these habitability items, liability will fall onto the landlord in the event of any damages resulting from failing to address any of these issues. There are exceptions for when a tenant causes a habitability issue, either by misuse of the property or failure to report an issue that has developed, but landlords should assume they are responsible for providing a habitable premises for the duration of any residential tenancy.  

Another common mistake we see occur is when a landlord fails to properly respond to a habitability complaint by a tenant. If there are any issues at the property related to Section 1941.1, and a tenant relays the issue to the landlord, the landlord must take reasonable steps to mitigate the issue. Depending on the severity and type of issue, the landlord has anywhere from a few days to a month to respond and mitigate the issue. For example, if the hot water heater in the property is broken, a reasonable response by the landlord would be repairing the issue within 1-2 days as it would be deemed unreasonable for a tenant to go much longer than that without hot water. Something like some minor damage to the roof above the garage of a property can allow a landlord more time to mitigate, with the reasonable response rate closer to 30 days. Each issue is different, and should you need advice as to what is ‘reasonable’, we recommend you seek legal counsel.

Beware Tenant Claims of Retaliation

Another issue that we see come through our firm regularly are retaliatory evictions. California Civil Code Section 1942.5 puts limitations on when a landlord can terminate a tenant’s lease, or otherwise decrease their services (raise rent, change terms, etc.), for 180 days after the tenant exercises one of their legal rights. Stated somewhat differently, for 180 days after the tenant makes a complaint to a landlord regarding a habitability issue, a landlord cannot terminate the lease or otherwise decrease the services offered to the tenant based on the habitability complaint.

For example, if during a tenant’s lease mold develops and costs the landlord an exorbitant amount to mitigate, a landlord cannot then raise the rent or evict the tenant in response to the complaint and costs to mitigate the issue. From the date of the complaint, a landlord cannot terminate the lease or raise the rent for 180 days afterwards. If they do so, it will be presumed retaliatory unless the landlord can provide an alternative basis for the action. The duty will be on the landlord to provide some justifiable cause unrelated to the mold, which can be a difficult burden to meet. If they cannot, the eviction or rent increase will be barred. It is understandable that a landlord would want to avoid or otherwise be compensated for unexpected repair costs for habitability issues, but they cannot shift that burden to the tenant.

Exceptions to Landlord’s Responsibility

Not all habitability issues are created equal, and some do not result in liability for the landlord. While California case law and statutes are clear surrounding what is required to maintain a habitable premises, there are exceptions to who is responsible for mitigating habitability issues that arise.

First, if the habitability issue is caused by the tenant or their guest(s), the tenant is technically responsible to mitigate the issue. A common situation where this happens is when a tenant misuses the plumbing at the property, including flushing hygiene products, allowing debris to enter drains, etc. In this circumstance, the tenant is obligated to repair the issue. Second, if an issue arises and the tenant does not notify the landlord, the landlord is not under an obligation to repair the habitability issue. A landlord cannot be expected to mitigate a habitability issue they do not know about.  


The foregoing includes only a portion of some of the habitability disputes that arise during a landlord tenant relationship. Habitability issues result in by far the highest dollar value of damages in landlord tenant litigation. These issues can result in not only contractual damages, but also health damages if the landlord does not properly respond. Given the strict nature of Section 1941.1 and Green v. Superior Court, a landlord’s duty to maintain a habitable premises is one of their most important duties owed to a tenant. If you have concerns or an active habitability dispute with your tenant, please do not hesitate to reach out as many prolonged landlord tenant disputes in this area can avoided with efficient and reasonable proactivity.  

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