In California, a tenant is legally entitled to rent property that meets basic structural, health, and safety standards and is in good repair. If the landlord does not meeting this requirement, the tenant has the option to withhold rent until the repairs are done. However, be warned that withholding rent does not mean the tenant does not eventually owe some or all of the back rent.

The common scenario under a withholding rent remedy for failing to make repairs is that the tenant first refuses to pay some or all of the rent. The landlord eventually serves a 3-day notice to pay or quit and then files an unlawful detainer complaint. The tenant will then file an answer stating that the rent was not paid because the landlord did not make repairs as requested. At this point, the tenant must do several things to make sure the tenant can properly support his/her answer:

  • Make sure you have documentation of the damages and request for repairs!

Unfortunately, a lot of tenants do not promptly notify landlords of any damages to the property and the need for repairs. It is only until the tenant is unable to pay rent that they attempt to use the “withhold rent” defense for nonpayment of rent. The affirmative defense to nonpayment of rent for lack of repairs will only work if the landlord has been previously notified of the issue with the property. If the landlord has been notified, but refuses to do the repairs, then there is a proper defense.

It is best to always document everything in writing. Tenants are best advised to make any request for repairs in writing (email is easiest). Also tenants are also best advised to take pictures of the damage at the time that the request was made and take a picture of the current damage. All this will be used as evidence to show 1) that the landlord was previously notified of the repairs needed; 2) that the landlord did not take steps to repair the problem; and 3) that the damage is still present.

  • Tenants are still liable for fair market value of back rent!

This is a common mistake for tenants so pay attention! The withholding rent remedy is not a free pass to get away with paying rent. Rather it only postpones the rent due until a judge can determine the fair market value of the rent due during the time that the tenant withheld for lack of repairs (the tenant is still living in the property, so the landlord is entitled to some portion of the rent).

Going back to the scenario above, the unlawful detainer case will eventually proceed to trial. At trial, the landlord will prove his case that the rent was not paid. At this point, the tenant has the burden of proof to prove his/her affirmative defense of nonpayment of rent for lack of repairs. The tenant will provide all the documentation stated above to the judge. The unlawful detainer judge will then make a determination of the fair market value of the rent due during the time that the rent was withheld in consideration of the repairs needed. At this point, the tenant will be required to pay the landlord the fair market value of rent due otherwise lose the unlawful detainer case (losing the case means the landlord can proceed with eviction).

Time and time again, tenants are unable to tender payment and have lost the unlawful detainer trial and been evicted. Good attorneys that represent tenants in these type of cases will always ask the tenant to place the full value of rent in a trust account to be prepared to pay the landlord at the conclusion of the unlawful detainer trial (obviously if the tenant refuses, the attorney has no other choice). It is best to listen to the attorney and make sure there is enough money to cover back rent.

Eric W. Ching

Real Estate & Business Attorney

501 West Broadway, Ste. A-205

San Diego, CA 92101

Office: (619)-663-8821

Direct: (510)-449-1091


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