Habitability/ Repair Issues
California Civil Code Sections 1941 and 1942 define a landlord’s responsibilities for repairs. Civil Code Section 1941.1 requires landlords to provide the following:
• Effective waterproofing and weather protection of the roof and outside walls; unbroken doors and windows.
• Plumbing, electricity and gas facilities in good working order.
• A reasonable amount of hot and cold running water, and a sewage disposal system.
• Adequate and safe heating facilities.
• Electrical lighting, with wiring and electrical equipment which conforms with the applicable law at the time of installation, maintained in good working order.
• Floors, stairways and railings maintained in good repair.
• An adequate number of containers for garbage and rubbish.
• Buildings and grounds which are free of rubbish, garbage, rodents and other pests.
Also a locking mail receptacle is required for each residential unit in a residential hotel by Section 17958.3 of the Health and Safety Code.
WARRANTY OF HABITABILITY
Under a 1974 California Supreme Court decision, Green v. Superior Court, all leases and rental agreements are deemed to include an implied warranty of habitability. This means that regardless of any conflicting lease agreement, the landlord is required to keep your unit in a habitable condition at all times.
“Habitable” means that the apartment conforms to the standards set forth in California Civil Code Section 1941.1, as listed above. Even if you knew that a unit was below code when you moved in, you still have the right to demand that it be brought up to habitable standards.
If your landlord does not repair and maintain the premises per the requirements of the law, you have several options:
1. Complain to the landlord in writing. This is crucial. You must do this before anything else. Keep a copy for your files. We recommend you send the letter by certified mail, return receipt requested, so that you have proof it was delivered.
2. Enroll in CEOP (Code Enforcement Outreach Program), a program of the Department of Building Inspection, which HRCSF takes part in. It’s a good way to put pressure on your landlord to get the work done. If this doesn’t work, we will recommend a next step. Call our counseling hotline (415) 703-8644, Monday through Thursday, 1 pm – 5 pm for info on CEOP.
3. Petition the Rent Board for a rent reduction until repairs are done by filing a “decrease in services” petition. We can help you fill out this petition. If you’re not under rent control, you may need to go to Small Claims Court.
4. Repair and deduct (NOT RECOMMENDED. Please talk to a counselor about it first!).
5. Move out and/or sue your landlord.
6. Organize with other tenants.
7. Withhold rent (NEVER RECOMMENDED!) Please talk to us if you are planning to withhold rent–it is not a good idea. If you do decide you want to do it, you need to consult a lawyer.
COMPLAIN TO THE LANDLORD
Write a letter documenting the problems you want fixed. State that you want a response within a reasonable time period (5 to 10 days) indicating when the repairs will be made.
Always keep a copy of all correspondence and documentation. If you need to call the landlord or manager about repairs, follow up your call with a note summing up the conversation. If possible, take photographs of the problems, and get a witness to sign a statement.
Always keep copies of any letters you send or receive. In addition, keep an organized log of all phone calls or discussions of what was said and agreed upon. This information may be used at a Rent Board hearing or in Small Claims.
Thirty days is considered a reasonable amount of time for non-emergency repairs to be completed. Once your landlord has given you the proper 24-hour written notice to enter your apartment to make the repairs, you are expected to comply with the repair effort.
CEOP: CODE ENFORCEMENT
After you have written your landlord about the repair problems, you can contact us and enroll in the CEOP Program. But if you choose not to go this route, you can call the Department of Building Inspections directly and file a complaint. (NOTE: If you think that you live in an illegal unit DO NOT contact DBI.) If a building inspector discovers that the unit is illegal, you may be evicted. Contact our counseling line (415) 703-8644 to talk to a counselor about whether your unit might be illegal.
The Department of Building Inspections is responsible for enforcing the Housing Code for the City of San Francisco. If your landlord does not make the requested repairs, contact the Department of Building Inspections, Housing Inspection Division at (415) 558-6220 and file a complaint. Request an inspection of your apartment or building for violations of the Housing Code.
To facilitate the process:
- Tell the receptionist your address and ask to speak to the inspector who handles complaints in your area.
- Tell the inspector the exact problems you need inspected; prepare a list of the problems for the inspector.
- At the time of the inspection, the inspector is required to issue a notice of violation (NOV) to the landlord and send a copy to you, if you request it. Make sure you keep your copy of this report. You will need this documentation should you decide to go to the Rent Board or Small Claims Court.
- After being issued a NOV, your landlord has seven days to repair routine problems, 24 hours to repair heat and hot water problems, and five to 30 days to obtain permits for more significant work.
The inspector is required to re-inspect the apartment to ensure that the code violations have been repaired. We recommend that you follow-up with your inspector as to the status of the repairs. If the problem is not fixed within the notice period given, call the inspector. Your landlord will be cited and fined.
WHAT CEOP IS
The Code Enforcement Outreach Program (CEOP) is a city/community partnership run by DBI. Its members include DBI, HRCSF, the Chinatown Community Development Corporation, Causa Justa/Just Cause, the SRO collaboratives, and the San Francisco Apartment Association. The goal of the program is to facilitate communication between tenants, landlords and inspectors in an attempt to get repairs done as quickly as possible. If you are interested in this program, let us know. Call us at (415) 703-8644 Monday through Thursday, 1 – 5 pm.
FILING WITH THE RENT BOARD
The San Francisco Rent Board is a city agency set up to oversee and enforce the San Francisco rent ordinance. There are two types of tenant petitions which can be filed with the Rent Board to deal with repair problems. One is called the Decrease in Services petition and the other is called the Failure to Repair and Maintain petition. These petitions are available at the Rent Board, 25 Van Ness Avenue, Suite 320, or online at sfrb.org (click on the “forms center”). Or you can stop in during counseling hours and we can help you fill out the forms. We have copies here at our office, 417 South Van Ness/15th. Counseling hours are Monday through Thursday, 1 – 5 pm.
DECREASE IN SERVICES
A Decrease in Services petition, requesting a reduction in rent, can be filed at any time if there has been a lack of repairs, or if a service or amenity that has previously been provided (for example, a leak-free sink) is no longer provided due to landlord failure to fix it after you notified him in writing.
FAILURE TO REPAIR AND MAINTAIN
Tenants can file a Failure to Repair and Maintain petition only when they have received a notice of a rent increase. In a Failure to Repair and Maintain petition, the tenant alleges that the landlord is not entitled to a rent increase because the landlord has refused to make requested repairs which are required under the law.
With both these petitions the burden of proof is on the tenant. The tenant must prove that they have requested to have the repairs made and that the landlord has not made the repairs within a reasonable time.
All unresolved tenant petitions result in administrative hearings at which both the tenant and the landlord have an opportunity to present their evidence. A hearing officer presides over the hearing and renders a decision within 45 days. Decisions from the hearing officer can be appealed to the Rent Board Commissioners within 15 days.
The Rent Board Commission is composed of two tenant representatives, two landlord representatives, one neutral party and five alternates. These Commissioners are appointed by the mayor for a four-year term. Commission meetings are held every Tuesday afternoon at 5:30 pm and are open to the public.
MOVE OUT AND/OR SUE LANDLORD
If your apartment substantially lacks any of the things listed in California Civil Code 1941.1, and the landlord has not fixed the problems within a reasonable time after being notified of the condition in writing, the law allows you to move out in the middle of your rental agreement. This is called a “constructive eviction” — when a unit is uninhabitable and therefore the tenant is forced to move out. You must have written documentation of the problems, such as NOVs from DBI, letters, pictures, etc., in order to claim a constructive eviction.
You do not have to give notice that you are moving out, but it is a good idea to write a letter to your landlord stating your intention to exercise your right to move out.
You can also sue your landlord for a rent refund for the time you were paying rent while living with serious repair problems. If you’re are suing for $10,000 or less, you can sue in Small Claims Court. No lawyer is necessary. Otherwise, if you want to go to Superior Court, contact an attorney or legal clinic.
REPAIR AND DEDUCT
California Civil Code 1942 states that tenants can repair and deduct the costs to remedy problems listed under California Civil Code Section 1941.1. If your landlord does not make requested repairs within a “reasonable” time after receiving notice of a problem, you have the legal right to have the repairs made yourself and deduct the cost from your rent, as long as the cost of the repairs does not exceed one month’s rent.
You must submit the receipts for the work with your rent payment. You can use this remedy twice in any twelve month period. If the repair problem affects more than one apartment in your building, you may be able to do a combined repair and deduct with other tenants. Call the HRCSF first to check.
NOTE: WE DO NOT RECOMMEND THIS. We recommend that you speak to your landlord and if s/he agrees to the repair and deduct, then get IT IN WRITING! Only then do we feel that you can deduct without risk of a 3-day notice. If you are under rent control, there are other avenues to pursue, such as a Decrease in Services petition at the Rent Board. Housing Rights Committee has the forms and our staff can help you fill out them out. Stop in during counseling hours, Monday through Thursday, 1-5pm, at the Mission office, 1663 Mission, suite 504; or Monday, Wednesday, Thursday and Friday, 9am to noon at the Richmond office, 4301 Geary Blvd. at 7th Ave. If you’re not under rent control, you can take your landlord to Small Claims Court. You could also sign up for the CEOP program (see above).
The law does not require landlords to repaint apartments. However, if the paint in your apartment is lead-based and is peeling or chipping off the walls, a DBI Inspector may require your landlord to repaint the area where the paint is peeling.
If your building is under rent control, then it was built before 1979. Lead was used in buildings in San Francisco until 1978. So if you live in a rent-controlled building, chances are that there is lead-based paint in your apartment.
Call a private lab to have the paint inspected for lead. The Department of Public Health lead prevention program can give you advice. Contact them at (415) 554-8930.
ORGANIZE WITH OTHER TENANTS
Often, many tenants in a building are experiencing the same problems. A group of tenants working together to solve a problem is much more effective than one tenant working alone. If other people in the building are having the same problem ask them to sign your letter or write a letter together. A group of tenants can also submit petitions to the Rent Board together. The Housing Rights Committee can help you and your fellow tenants organize, decide on a course of action, and form a tenant’s association. Contact us.