A Tenant Law Nobody Knows About

by Paul Hogarth on April 18, 2007

If your landlord allows a major code violation to persist for 35 days after a Housing Inspector has issued a citation, it is illegal under state law for them to collect rent or evict you for non-payment. If you are a tenant who wasn’t aware of that law, you’re not alone. Very few tenants have used this law – even though it’s been on the books for four years.

In 2003, the state legislature and Governor Gray Davis passed AB 647, codified into law as California Civil Code Section 1942.4. Sponsored by ACORN and Assemblyman Fabian Nunez, the law states that a landlord “may not demand rent, collect rent, issue a notice of a rent increase or issue a three-day notice to pay rent or quit” if all of the following four factors exist:

(1) The rental unit violates the Implied Warranty of Habitability – which could include broken windows or doors, lack of heat, no hot or cold running water, electrical wiring in deficient order, rodents or broken floors, stairways or railings.

(2) A Housing Inspector has notified the landlord in writing of such a code violation and has ordered them to make repairs, such as in a Notice of Violation.

(3) The landlord has not made repairs within 35 days after the Notice was sent, and the delay is without good cause.

(4) The tenant did not create the code violation.

If a landlord collects rent despite these conditions, he may be liable for up to $5000 in damages. There is also a clause that gives attorneys’ fees to the prevailing party in case they have to go to court. Any judge who awards these damages may also require the landlord to make repairs in the form of injunctive relief. But today, we haven’t seen many cases around 1942.4.

From 2000 to 2003 (prior to attending law school), I worked at the Tenderloin Housing Clinic where I organized low-income tenants around code enforcement issues. When I did outreach about habitability problems, many tenants would say that they wanted to go on a “rent strike” because the conditions in their rooms were so bad. But I always advised them not to because that would get them evicted.

Besides putting pressure on the landlord to make repairs (and if need be, get a City Housing Inspector out there), the only thing I could do was advise them to file a Rent Board petition. Under that process, tenants must prove in a quasi-judicial process that they have been living with deficient services for a certain amount of time and ask for a retroactive reduction in their rent. It’s a tedious process, and if successful they only get a fraction of their rent money back.

But Civil Code Section 1942.4 is far more effective because, once a Housing Inspector cites the property and it remains unabated for 35 days, the tenants are free to stop paying rent. When I organized hotel tenants in the Tenderloin, I would often call the Housing Inspectors to issue citations. Many landlords would still not comply after the initial inspection – and in cases like the Warfield Hotel, we finally had to get the City Attorney to sue. The whole process took years, while the tenants still had to pay rent.

I can only imagine how much more effective it would have been if 1942.4 had been in effect when I had this job. A DBI Notice of Violation would put the fear of God in these slumlords’ eyes – as they would understand that the law forbids them from collecting rent (or evicting tenants) after 35 days. No more cavalier ignoring of Housing Inspectors and a potential fine or lawsuit – the initial Notice of Violation would actually have teeth.

It’s incredible that more tenants have not been made aware about 1942.4 – nor have they used it to get actual repairs made in their building. Of course, tenants must understand that 1942.4 is not a “blank check” to stop paying rent. Like in every legal process, documenting a problem is key before you act. You must first call a Housing Inspector and get the code violation cited – and then wait for 35 days before you stop paying rent.

Moreover, the landlord is still authorized to collect rent or evict you – if the delay in making repairs is for “good cause.” That means you can’t call a Housing Inspector, get the unit cited and then refuse to allow your landlord in to make repairs. 1942.4 was designed to make recalcitrant landlords who ignore basic code violations pay serious consequences. Rather than potentially get sued later in court, they could start losing money right away – because their tenants can stop paying rent.

The City Attorney does a good job suing slumlords through its Code Enforcement Division, but litigation is expensive and lengthy. The City may derive a financial benefit at the end of it, but it’s not like individual tenants will recover – most of them get so sick of the conditions that they just move out. But 1942.4 adds a more potent weapon in the tenants’ arsenal. Provide minimal habitability conditions, or else you can no longer charge us rent after 35 days.

Tenants technically had this right before the law passed because under the Implied Warranty of Habitability, a tenant who’s getting evicted for non-payment of rent could raise habitability as a defense. But before a tenant had to hire a lawyer to litigate an eviction trial, and prove that the tenant was justified in withholding rent. If a tenant’s lease doesn’t call for attorneys’ fees, it was almost impossible to get a lawyer. Even if the tenant prevailed, they would only be justified in withholding part (not all) the rent.

1942.4 changed this in two ways. First, by adding an attorneys’ fees clause, a tenant could find a lawyer to represent them who will work on contingency. Second, by flatly prohibiting landlords from collecting rent after the 35 days, the tenant will be able to keep all – rather than part – of their rent. That puts more teeth in the rent withholding defense, and makes the case far more appealing for tenant attorneys to take on.

If tenants start using 1942.4, landlords will start waking up about code violations.

EDITOR’S NOTE: Paul Hogarth is an attorney licensed to practice law in California. This article is not intended as legal advice. Send feedback to paul@beyondchron.org

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