The “repair and deduct” remedy allows a tenant to deduct money from the rent, up to the amount of one month’s rent, to pay for repair of defects in the rental unit.156 This remedy covers substandard conditions that affect the tenant’s health and safety, and that substantially breach the implied warranty of habitability.157 Examples might include a leak in the roof during the rainy season, no hot running water, or a gas leak.
As a practical matter, the repair and deduct remedy allows a tenant to make needed repairs of serious conditions without filing a lawsuit against the landlord. Because this remedy involves legal technicalities, it’s a good idea for the tenant to talk to a lawyer, legal aid organization, or tenants’ association before proceeding.
The basic requirements and steps for using the repair and deduct remedy are as follows:
1. The defects must be serious and directly related to the tenant’s health and safety.158
2. The repairs cannot cost more than one month’s rent.
3. The tenant cannot use the repair and deduct remedy more than twice in any 12-month period.
4. The tenant or the tenant’s family, guests, or pets must not have caused the defects that require repair.
5. The tenant must inform the landlord, either orally or in writing, of the repairs that are needed.
6. The tenant must give the landlord a reasonable period of time to make the needed repairs.
• What is a reasonable period of time? this depends on the defects and the types of repairs that are needed. The law usually considers 30 days to be reasonable, but a shorter period may be considered reasonable, depending on the situation. For example, if the furnace is broken and it’s very cold outdoors, two days may be considered reasonable (assuming that a qualified repair person is available within that time period).
7. If the landlord doesn’t make the repairs within a reasonable period of time, the tenant may either make the repairs or hire someone to do them. The tenant may then deduct the cost of the repairs from the rent when it is due. the tenant should keep all receipts for the repairs.
• It’s a good idea, but not a legal requirement, for the tenant to give the landlord a written notice that explains why the tenant hasn’t paid the full amount of the rent. The tenant should keep a copy of this notice.
156 Civil Code Section 1942.
157 California Practice Guide, Landlord-Tenant, Paragraphs 3:115-3:116 (Rutter Group 2009).
158 Brown, Warner and Portman, The California Landlord’s Law Book.