Instead of using the repair and deduct remedy, a tenant can abandon (move out of) a defective rental unit. This remedy is called the “abandonment” remedy. A tenant might use the abandonment remedy where the defects would cost more than one month’s rent to repair,160 but this is not a requirement of the remedy. The abandonment remedy has most of the same requirements and basic steps as the repair and deduct remedy.161
In order to use the abandonment remedy, the rental unit must have substandard conditions that affect the tenant’s health and safety, and that substantially breach the implied warranty of habitability.162 If the tenant uses this remedy properly, the tenant is not responsible for paying further rent once he or she has abandoned the rental unit.163
The basic requirements and steps for lawfully abandoning a rental unit are:
1. The defects must be serious and directly related to the tenant’s health and safety.164
2. The tenant or the tenant’s family, guests, or pets must not have caused the defects that require repair.
3. The tenant must inform the landlord, either orally or in writing, of the repairs that are needed.
4. 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 circumstances. For example, if tree roots block the main sewer drain and none of the toilets or drains work, a reasonable period might be as little as one or two days.
5. If the landlord doesn’t make the repairs within a reasonable period of time, the tenant should notify the landlord in writing of the tenant’s reasons for moving and then actually move out. The tenant should return all the rental unit’s keys to the landlord. The notice should be mailed or delivered. The tenant should keep a copy of the notice.
• It’s a good idea, but not a legal requirement, for the tenant to give the landlord written notice of the tenant’s reasons for moving out. The tenant’s letter may discourage the landlord from suing the tenant to collect additional rent or other damages. A written notice also documents the tenant’s reasons for moving, which may be helpful in the event of a later lawsuit. if possible, the tenant should take photographs or a video of the defective conditions or have local health or building officials inspect the rental unit before moving. the tenant should keep a copy of the written notice and any inspection reports and photographs or videos.
risks: the defects may not affect the tenant’s health and safety seriously enough to justify using the remedy. the landlord may sue the tenant to collect additional rent or damages.
160 California Practice Guide, Landlord-Tenant.
161 Civil Code Section 1942.
162 California Practice Guide, Landlord-Tenant.
163 Civil Code Section 1942.
164 Brown, Warner and Portman, The California Landlord’s Law Book, Vol. I: Rights & Responsibilities, page 189 (NOLO Press 2009).