A Rat Problem: Reason Enough to Withhold Rent?

In a recent issue of the Apartment Owner's Association magazine, a reader (landlord) wrote in stating he began eviction proceedings against a tenant who contested the case by alleging the landlord refused to take care of a rat problem. The reader/landlord asked for suggestions on how to handle the situation in court. The attorney answering that month's question jokingly suggested the landlord tell the judge that the tenant breached the lease by having pets!

Answer
In fact, the tenant can claim that the landlord's failure to take care of the rat problem is an affirmative defense to eviction proceedings! Under such circumstances, the landlord would not be entitled to regain possession of the premises (cannot evict you at that time). In legal terms, this means that the landlord breached the warranty of habitability inherent in a residential tenancy. Your duty to pay rent as a tenant is dependent on the landlord providing you with premises that are habitable.

The Law
In the landmark case of Green v. Superior Court, the California Supreme Court held that a warranty of habitability is implied in ALL residential rental agreements. California statute also prohibits landlords from keeping premises "untenantable". (See Civil Code 1941.1) In our rat problem case, this means that the landlord must keep clean and sanitary premises - building, grounds and common areas that are sanitary and free from rodents and vermin!

However, landlords are not required to make sure the premises are in a perfect, and beautiful condition. There must be a substantial lack of clean and sanitary conditions. For example, the following were determined to be substantial violations:

• Lack of heat in four of tenant's rooms, vermin, malfunctioning plumbing, collapse and non-repair of bathroom ceiling, bad wiring, and illegally installed stove. (Green v. Superior Court)
• Hazardous electrical wiring, raw sewage seepage under building, infestation of rats, termites and other vermin, old and broken doors and windows, lack of heat, and leaks. (Rivera v. Sassoon)
• Wall cracks, peeling paint, water leaks, heating problems, broken windows, and rodents. (Knight v. Hallsthammer)

Although the above cases involve rodents with other terrible problems, an intense rate problem (substantial infestation) could come to the level of a breach by the landlord if the landlord does not take care of the problem.

There must be Notice to Landlord with Opportunity to Repair
The law does not hold landlords accountable for problems that they were not aware of or for problems that would not have been disclosed by a reasonable inspection. Thus, in order to assert a breach of the warranty of habitability the landlord must have notice! This means the tenant must tell the landlord of the rat problem in the apartment. The landlord would also have notice if it is clear through "reasonable inspection" that an apartment or building has a rat infestation. Either way, tenants should always be advised to give written notice to their landlords immediately upon discovering an uninhabitable condition! In this written notice, the tenant should state a specific reasonable deadline for remedy in the notice, after which the tenant can initiate a lawsuit. Sometimes asking an attorney to write the letter on the tenant's behalf will light a fire under the landlord to get the job done sooner.


What to do Next:
If you have rats or other vermin in your building, you should:

1. Obtain an inspection and report from a local agency (health and safety department, building safety department, or housing department)
2. Follow up on issuance of the citation
3. Photograph the conditions
4. Allow inspection by attorneys if the landlord has not fixed the condition

Beware!
The implied warranty of habitability is not a defense when the "breach" was caused by the tenant! You cannot profit from your own wrong. It is the tenant's responsibility to to repair deteriorations and injuries to the premises caused by her own lack of care. This includes disposing of garbage and other waste in a clean and sanitary manner. Therefore, if a tenant(s) keeps an unsanitary apartment or leaves trash and garbage around the building or outside the dumpster (instead of inside) and this results in the "rat problem", the tenant may not be able to blame the landlord.