The Berkeley Rent Board Mailbag
Codes & Habitability
Q: We have had a foul smell coming from underneath the house we rent for several days now. We notified the landlord and he said he'd check it out, but he hasn't yet, and it's permeating our house. What should we do? (August 2003)
If you can't wait for your landlord to get to it, you have several options. First, you can perform your own inspection. See if you can find the source of the smell. If it's a dead animal, you can call the City of Berkeley's Animal Services Department (981-6600) and they may be able to come and remove the animal. If they are unable to determine the source or the animal is not accessible, say, it's enclosed in a wall, your landlord will have to deal with the removal or give you permission to have it done. If you cannot satisfactorily resolve the problem with your landlord, you have some decisions to make. If you can tolerate the smell, you may elect to stay in the unit at a reduced rent. If this is an option and the landlord does not agree, you should file a petition with the Rent Board for a rent reduction if you are under rent control. Another option would be to take care of the problem yourself and deduct the cost from the rent by following the procedure in Civil Code section 1942. If the problem is so bad that you cannot live in your unit, you can give a 30-day notice to vacate and leave if you have a month-to-month rental agreement. If you have a term lease, you may be able to break the lease if the situation is sufficiently severe, but you should seek legal advice and document the situation before taking any drastic action.
Q: I'm a renter in Berkeley, and yesterday my gas, which I do not pay for, stopped working. I can't cook, I have no heat and no hot water. I called my landlord right away and left a message. I called again a couple hours later, and she said that she'd try to get someone out here-within a few days. This was not a satisfactory response. What are my rights? Can I call a service person in and charge her for it? Can I charge her for meals if I have to eat out? What about the inconvenience of not being able to shower? How long must I wait for her to get around to fixing it? (June 2003)
Your landlord has a duty to act quickly, given the nature of the problem. You may want to tell her that you cannot wait a few days and that you'd be willing to make some calls to try to get someone in to fix the problem sooner. If she refuses your help, doesn't inform you of her progress within a day and no repairperson comes within 24 hours or so, it would be reasonable for you to contact a repair person yourself. Civil Code section 1942 allows a tenant to "repair and deduct" for serious deficiencies if the cost of the repair does not exceed one month's rent. The tenant must give the landlord written notice of the problem and a reasonable amount of time to fix the problem. While thirty days is presumed reasonable for most problems, the lack of gas is a serious problem that warrants a shorter amount of time. Unfortunately, "a reasonable time" is not defined. If the landlord challenged your deduction by serving you with a Three-Day Notice to Pay Rent or Quit, we recommend that you pay the disputed amount first in order to avoid a possible eviction proceeding. Then take the matter to small claims court where a judge would ultimately have to decide whether the deduction was warranted.
You are entitled to a rent reduction for the period that you were without gas and, if you cannot reach an agreement with your landlord as to the amount of the reduction, you can file a petition with the Rent Board.
Q: The roof of my apartment building leaks. During the last rainstorm, water leaked through the bedroom ceiling, which is now sagging. I notified the landlord, but nothing has been fixed. What are my rights? (December 2002)
You have a right to a weatherproof apartment under Civil Code 1941.1 and under the local housing code, and the right to a habitable dwelling is implied in every lease. If your apartment fails to meet these requirements, you may be entitled to some compensation for the impairment the leaky ceiling has caused. Here are steps we recommend tenants take to get problems in their units fixed and to get compensation:
Notify the Landlord Make a written request to your landlord for repairs. Telephoning is fine, and essential in an emergency, but written proof of making the request is important, especially if your landlord is not responsive. So, if you telephone your landlord about a problem, follow up with a letter. Keep copies of all your correspondence. If you don't notify the landlord of a serious problem that results in damage that was preventable with earlier notification, you risk being held responsible for some of the damage done to the apartment.
Document the Problem If possible, take photos of or videotape the problem, or call the Rent Stabilization Board for someone to videotape it. If you file a petition with our office, you'll need to demonstrate that there was (or still is) actually a problem.
Request a Housing Inspection For structural or weatherproofing problems that you suspect violate housing or building codes, call the City's Housing Enforcement Division for a housing inspection at 981-5444. If the inspector cites the landlord for a code violation, the City can charge the landlord for inspection fees if the problem does not get fixed. Also, the inspector will issue a report about all cited violations, which will serve as additional evidence of the problem.
Petition the Rent Board File a petition at the Rent Stabilization Board seeking a rent reduction if the landlord still refuses to make repairs, or if you and the landlord can't agree on some compensation for the inconvenience you suffered. If, at a hearing, you prove the existence of the leak and can show how it affected your use of the bedroom (say, you had to move furniture and couldn't use part of the room), you're probably entitled to a rent reduction. This reduction will apply from the time the landlord had notice of the problem until it was fixed; if the repair isn't made by the time of the hearing, the rent reduction will stay in effect until the landlord proves that it has been fixed.
The Rent Board cannot, however, compensate you for any costs you might have incurred to replace personal belongings damaged by the leak. If your landlord does not agree to reimburse you for your losses, see if he or she will agree to mediate the matter through Berkeley Dispute Resolution Services (BDRS). Otherwise, you will have to file a suit in small claims court to recoup your costs. For more information about BDRS, call 548-2377 or visit www.BDRS.org. For small claims court information, call 893-7160 or visit www.acbanet.org/SCAdvisor.htm.
Q: I have a terrible mold problem in my bathroom. I leave the window open when possible, but it's not safe to do that when I'm gone (I live on the ground floor). My landlord has refused to install a fan. Is he required to? What can do to get rid of the mold permanently? (December 2002.)
You cannot make your landlord install a fan, but you could purchase a fan yourself - it might even be something the landlord would pay for, especially if it remains with the apartment. As for cleaning, the best recommendation is to use a 10% bleach solution. It's not enough just to wipe the affected area with the solution - it has to remain in contact with the solution for 10 minutes or so, so it takes some diligence to actually kill the mold.
Mold needs water to grow. It especially likes dark and damp areas. So, to keep the mold from coming back, you have to reduce the water vapor in the bathroom - opening the window and the door, and running a fan to circulate the air are all good ideas. Bringing light to the area may also help, so open the curtains, if you have them.
You haven't mentioned your building's structure, but if there are leaks from rain or defective plumbing, the mold won't go away until the source of the water intrusion is addressed. These problems are the landlord's responsibility, so you should notify him if he's not aware of such a problem, or keep reminding him that he must make repairs.
For more information about combating mold, visit the Environmental Protection Agency website: http://www.epa.gov/iaq/pubs/moldresources.html.
Q: Because landlords are required to install working smoke detectors, shouldn't they be responsible for maintaining them as well? I am a tenant, and I think I should be able to deduct the cost of replacing the batteries every year. (December 2002.)
Since 1987, state law has required landlords to provide operable smoke detectors at the beginning of all tenancies in multiple-unit buildings. Replacing batteries of smoke detectors in your unit is not the landlord's obligation, unless that's written into your rental agreement. You, as a tenant, must assume some responsibility for basic maintenance of your rental unit, which means keeping it clean and replacing, at your own expense, minor items with a naturally short life that wear out during your tenancy, such as light bulbs and batteries. On the other hand, if your smoke detector doesn't work even with a new battery, then notify your landlord, who must then repair or replace the smoke detector. Also, property owners are responsible for replacing the batteries of smoke detectors located in common stairwells.
Q: Our landlord is slow to make repairs. Many of the things we can fix ourselves, like patching a hole in the screen door, replacing a kitchen faucet held in place with duct tape, and even rebuilding the rotting back steps. Can we go ahead and do these repairs ourselves and deduct our expenses from the rent?
If you think your landlord would rather have you make repairs so he doesn't have to bother with them, write a letter asking if he will allow you to do these repairs and deduct the costs from rent.
If he does not approve, consider whether you can proceed with the "repair and deduct" remedy provided in California Civil Code section 1942.
Use of this remedy is limited:
You must first give the landlord written or oral notice of the problem, and allow him or her reasonable time to make the repairs;
The problem must substantially violate the habitability standards defined in Civil Code sections 1941.1 (see below);
You must not have interfered with the landlord's attempt to fix the problem and the problem must not have been caused by tenants or their guests;
You may deduct no more than one month's rent at a time, and you may not use this remedy more than twice in twelve months.
We strongly advise that you give notice to your landlord in writing of the repairs needed, and keep a copy for your records. Provide a reasonable date by which he should make the repairs, and advise that you will make the repairs (or hire someone to do them) and deduct the cost from rent if he doesn't meet the deadline. The law presumes that 30 days is reasonable. If the problem is an emergency, such as flooding or a backed-up toilet, you will want to call the landlord immediately, but follow up that oral notice with a letter confirming your conversation. Also, it is reasonable to request that emergency repairs be fixed in less than 30 days.
If you or someone you hire does the work, we recommend that you photograph or videotape the problem before and after it is repaired. Once the work is completed, you may deduct the costs from the next month's rent. Be sure to send the landlord copies of all receipts.
As for the items you mentioned, a small hole in the screen door doesn't seem to warrant the use of repair and deduct, but your landlord should be willing to agree to let you make the repair and reimburse you for materials. The broken kitchen faucet and rotting stairs appear to be substantial violations; however, the cost to fix the stairs could exceed more than one months' rent.
Landlord responsibilities under Civil Code section 1941.1 You may use the repair and deduct remedy if your unit or building is substantially lacking one or more of the following:
Effective weatherproofing of roof and exterior walls, including unbroken windows and doors
Plumbing and gas facilities in good working order
Hot and cold running water and connection to a sewage disposal system
Heating facilities in good working order
Electrical lighting, wiring and equipment in good working order
Building and grounds free of debris, garbage, and rodents and other pests
Adequate number of garbage containers
Floors, stairways and railings maintained in good repair
For more information on using the repair and deduct remedy, contact the Repair and Deduct Self-Help Hotline at (800) 806-8111.
Q: I moved into my apartment in March this year. Soon after I moved in, I had a leak in my bedroom ceiling that forced me to move all my belongings away from that side of the room. I asked the landlord to fix it, but he never got around to it, and, quite frankly, I forgot about it because it hasn't rained much since. Now it's leaking again and he says he'll fix it, but I'm not sure when, and I don't want to have to live with it all winter. What should I do?
We recommend you follow up your oral request for repairs with a written one, asking your landlord to respond by a certain date with a plan for fixing the problem. If he still doesn't do anything, consider filing a petition with the Rent Board for a rent reduction. We also strongly advise you to call the City's Housing Code Enforcement Division (510/981-5444) for an inspection; the inspector will write a report describing problems that violate the Housing Code. As part of the petition process, a hearing is held before a hearing examiner, where you have an opportunity to describe the problem and the efforts you made to get the landlord to fix it. You will present evidence such as your letters to the landlord, the inspector's report, and photographs of the leaky ceiling. The landlord has a right to respond to your petition and present a defense at the hearing. The hearing examiner bases a rent reduction on when you first notified the landlord of the leak, the length of time the leak existed, and how badly the leak impaired your full use of the apartment.
Q: Our landlord keeps the water heater set so low that the water is never more than lukewarm. Aren't landlords required to provide "hot water" to their tenants?
Yes, landlords are required to provide hot and cold running water to their tenants. The Berkeley Housing Code defines "hot water" as water, supplied to plumbing fixtures, at not less than 110 degrees Fahrenheit. If you want to have your water temperature tested, you may contact the Code Enforcement Unit of the Berkeley Housing Department at (510) 981-7368 to request an inspection. If the inspector determines that the hot water temperature is substandard, your landlord will be ordered adjust the water heater and you may file a Rent Board petition for a rent reduction for the period when the water temperature was below 110 degrees.
Q: My apartment building is infested with ants! It is so bad in my unit that they nearly cover my floors and cabinets. I have tried just about everything I could think of to get rid of them, including constant cleaning and ant baits, with no success. The tenant in the neighboring unit also complains of ants. My landlord, who also lives in the third unit on the property, refuses to do anything about the infestation, because he says it might harm his dog. Please help. What is my landlord legally required to do?
Residential landlords are required by law to maintain their properties in habitable condition. Specifically, California Civil Code section 1941.1(f) provides that the building and grounds must be clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, e.g., cockroaches and ants. Landlords who fail to maintain their property in a habitable condition may be subject to citations for health and/or housing code violations, rent reductions and monetary damages.
Thus, your landlord has a duty to rid the property of a serious ant infestation, such as the type you describe. (Every ant problem, however, will not necessarily breach habitability standards, particularly where an act or omission by the tenant has caused it.) Your first step should be to contact the City of Berkeley Environmental Health Department and request an inspection of your unit. If the infestation rises to the level you describe, the Health Inspector will issue a report citing the landlord for a health code violation and order its abatement. The Environmental Health Department can also provide you with some self-help tips on combating pests.
You may also file a petition for rent adjustment with the Rent Board on the ground that your landlord has failed to comply with the implied warranty of habitability. If decided in your favor, you would be granted a retroactive rent reduction beginning from the time your landlord was first notified that your unit was infested and continuing until the ants are exterminated.
Additionally, or in the alternative, you may file a court action pursuant to Civil Code section 1942.4(a). A court may award monetary damages, including actual damages, special damages and attorney's fees, where a landlord has not corrected cited health or housing code violations, which also breach the habitability standards of Civil Code section 1941.1, e.g., a serious ant infestation. The court would also order the landlord to abate the nuisance and monitor the corrections to ensure compliance.
Q: After I moved into my apartment, I discovered that there was no telephone line installed. I asked the landlord about it, and he kept saying he'd take care of it but he never did. I finally called the phone company and had a line installed. I think the landlord should pay the $120.00 expense. Am I right?
Yes, under California Civil Code Section 1941.4, your landlord is responsible for installing "at least one suitable telephone jack" and for maintaining the wiring thereof in good working order.
Q: I have just moved to Berkeley. Upon moving into my apartment, I asked the manager to turn on the heat. He suggested I call P.G.&E. since he did not know how to start the heater. When the P.G.&E. technician inspected the heater, he declared it a hazard and disconnected it. I informed the manager of the problem immediately, and sent him a copy of the technician's report. It has now been more than two weeks and although the building has a repairman, I am still without heat in my unit. I need to get my heater fixed and I would also like to get a rent discount for the time I have not had heat. What should I do?
Under California Civil Code § 1941.1, a dwelling is considered untenantable if it does not have adequate heating facilities that are maintained in good working order. In other words, you have an absolute right to have a working heat source when you rent a unit. Since you have notified the manager of the building in writing (by forwarding the P.G.&E. report), you should next request an inspection of the unit by the City of Berkeley Housing Department and concurrently, file a petition with the Rent Board. Since the lack of heat is a breach of the warranty of habitability, under Regulation 1269(B)(3), you would be entitled to no less than a 10% rent reduction. You are entitled to a retroactive rent reduction from the time you first notified the landlord of the problem, and continuing each month until the heater is fixed.
In addition, you may be able to use the "repair and deduct" remedy (Civil Code § 1942). Where a violation of the warranty of habitability is not corrected within a "reasonable time" after proper notice is given, a tenant may arrange for the repair independently and deduct the expense from the next rent payment as long as the cost does not exceed one month's rent. Two weeks appears to be more than a reasonable time to fix a defective heater during winter. To use this remedy, you should be sure to follow the statutory requirements.
Q: There are a number of problems in my unit: the roof leaks, there are no screens on the windows, and recently the place has been infested with crickets. I've had some of these concerns for months, and my landlord keeps promising to fix things but never does. Do I have a legal basis for not paying the rent or can I at least deduct a certain dollar amount?
Under Berkeley law, you may be eligible for retroactive and prospective rent reductions based on some of the problems you mentioned. However, the Rent Board will not authorize rent withholding of any amount until you have filed a petition with the Board and received a decision in your favor. For any problems with a unit, you should first notify the landlord in writing. If your landlord's response is not satisfactory, you should contact the City of Berkeley Housing Department and/or Health Department to schedule an inspection. If there are any observed code violations in and around your unit, the landlord will be cited and required to correct the violations.
Under California Civil Code section 1942, when landlords refuse to make necessary repairs, tenants may do the work themselves or hire someone to make the repairs, and then deduct the costs from the rent. This remedy, however, is not unlimited, and tenants who exercise this right must be careful to follow the proper steps, as set out in the statute.
Q: Our oven has been broken for two weeks. I informed our landlord of the malfunction almost immediately, but so far, he has not called anyone to come in and fix it.: What can I do?
You could ask your landlord if he or she would be willing for you to have the oven repaired and deduct the cost of the repair from your rent. Otherwise, you could tell your landlord that you will call for an inspection of the unit by a City of Berkeley Housing Inspector unless the repair is made quickly. The inspector will issue a report that cites any existing code violations in the unit, including the inoperable oven. You could also, or in the alternative, tell your landlord that you will file a petition with the Rent Board requesting a rent reduction for the inoperable oven.
Q: The bedroom in one of my rental units has window bars. The bedroom also has a door at each end of the room. One door leads to the front door of the unit, and the other leads to the back door. Does this provide adequate emergency escape, or am I required to replace the window bars with release mechanisms?
The intent of the Ordinance is to insure that there is at least one emergency escape window in each bedroom so that anyone in a bedroom will have a means of immediately escaping a burning building to the outside. Even though the bedroom you describe has two doors, each leads to another interior space within the rental unit. Therefore, it appears that you must also provide a means of exiting the bedroom through a window, either by removing or upgrading the window bars to include release mechanisms.
Q: I was wondering where I can find information about how much my landlord has to heat my apartment. Currently, he only turns the heat on for four hours a day. The apartment stays around 60 degrees during the day and is even colder at night. What can I do to get the heat turned on more frequently? Can I bill him for the times I have to use an electric space heater?
I suggest that you call the City's Housing Inspectors at 981-7368 and request an inspection of your apartment. The Inspector will be able to tell you if the heat provided is sufficient. If the heat is inadequate the landlord will be cited. You may also petition the Rent Board for an award of overcharges for the period when the heat was insufficient.
Q: I am a landlady and my question is about dead bolts on first floor doors. The back door of one of my rentals is currently locked with a padlock. Does this door require a dead bolt? The door is hung such that a dead bolt would probably have to be surface-mounted. Would that be ok? If not, am I required to replace the entire door?
California Civil Code requires a dead bolt lock on each main swinging door of a rental property. If a through-the-door lock cannot be installed, a surface mounted lock may be used. The lock, however, may not be the type that requires a key -- no padlocks. You should contact the City's Codes Department for advice on the types of dead bolt locks that satisfy current code requirements.
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