articles by Category
Political & Legal Advocacy

Learn about Berkeley Rental Housing Coalition, the political and legal arm of the BPOA!

Affiliate Member of
The Forms You Need

One of the advantages of being a member of BPOA is having access to a wide array of useful forms, some of which have been created just for our members. For example, The BPOA RENTAL AGREEMENT F09 is specific to Berkeley and includes lead, asbestos and sex offender language. You can view the complete list of available forms here, but only members can download.

BPOA Article Library

Legal • January 1, 2005

Landlord/Tenant Law 101: Habitability and Related Issues

Landlord/Tenant Law 101: Habitability and Related Issues

Once upon a time,

 …there was a building, rented by a landlord to an artist who lived on the premises and  occupied himself with paints, acrylics, metal sculptures and the like. One night, the tenant locked himself out.  Looking for a way to get in through an open window, he climbed on top of a barrel that was covered with plywood.  As he went onto his tip-toes, the plywood caved in and he was pitched into the barrel, which was filled with acid. 

 Eleven months later, much scarred but not chastened, the tenant sued the landlord and everyone else in sight.  What result?

 In California, housing providers must ensure that their buildings are habitable, or tenantable.  California Civil Code Sections 1941 et seq. define habitability: deadbolts on doors, locks on windows, unbroken window panes, hot and cold water, electrical and gas installations up to code as of the date of installation, sewer connections, leak-proof roofs, garbage pickup, a hazard-free environment, etc.  While a carefully written lease may shift the obligation of continuing maintenance and repair to the tenant, the general rule is that  the owner, provided he/she is on notice of a problem, must repair it or be responsible for any injuries to life or property which result from the defect.

The requirement that a rented dwelling be habitable is closely related to the more general requirement that  any owner maintain his or her property free of potential hazards to third parties (whether tenants or complete strangers) who might reasonably be expected to enter the property.  In California this liability may be diminished or even avoided entirely, if it can be shown that the plaintiff (whether a tenant, a guest, or a trespasser) has also been negligent.  In our example of the acid-filled barrel, the tenant might well have a claim against the landlord, provided that he can adequately explain why it was not unreasonable for him to be climbing atop a barrel in the dead of night.  The landlord and tenant would no doubt also be fighting over who was responsible for the barrel. If it was left  by a prior tenant, the landlord would most likely bear all costs and damages to third parties. If left by the tenant, but with the landlord’s knowledge, neither might be liable to the other, but both  might find themselves responsible for injuries to third parties, including trespassers.

 What if there were no injury, and the tenant had simply discovered a hazard or other defect on the premises?  As between the landlord and tenant, the latter would have the right either to repair the defect upon the landlord’s failure to do so after notice, and to deduct up to one month’s rent as reimbursement, or to abandon the property without further liability for rent.  The tenant may also give notice to the landlord, and stay on the property, refusing to pay rent  until the dwelling is again habitable.  This is possible because non-habitability is a defense against any eviction action. This is true whether or not the defective condition has actually resulted in any harm to the tenant.  In Berkeley, the tenant does not have to raise the defense explicitly;  rather an owner must affirmatively certify that a unit is habitable as part of any complaint for unlawful detainer.

The City of Berkeley, which never misses a chance to over-govern, has superimposed its own Rental Housing Safety Program over the law of the state.  The RHSP allows tenants to demand  that the City inspect a unit for compliance with a wide range of requirements.  It also requires the owner to self-certify (with a copy to the tenant, but not to the City) compliance on an annual basis.  Finally there are special five year inspection and certification requirements for gas heaters and stoves.

 Berkeley’s annual certification forms are to be found on the Rent Board’s website.  In addition to the state’s requirements the punch card has entries for vented stoves and heaters, fire extinguishers (there must be one within 75 feet of each doorway, and it must be re-certified  or replaced every year), proper fuse capacity (no more than 15 amps for pre-1960 construction), strapped water heaters, and the like.

 Provided that the tenant has been alert about making sure that a defect is listed on the certification form,  the City’s  self-certification rule makes it difficult for a landlord to claim  lack of knowledge as a defense to an action based on non-habitability. Conversely, if the tenant has accepted the landlord’s list, and has not called the landlord’s attention to errors, the tenant may have a hard time asserting non-habitability as a defense to an eviction action. Nor should an owner forget California Civil Code Section 1929 which refers to property defects caused by a tenant’s own negligence.  Examples of tenant negligence include  failures to keep the premises clean, leaving personal property on the floors of common areas, breaking and failing to repair windows, the use of appliances or power-tools which are beyond the capacity of a building’s circuits,  the use and storage of flammable materials, botched home repair jobs, and many, many other others.  A word to the wise however: even if the tenant  has caused a  hazard, or has screwed up the plumbing, it is best for the owner simply to repair the damage immediately and fight over financial responsibility later.

 An old high school friend once rented a cottage with a wide, wooden deck overlooking Muir Woods. While he and his wife were on vacation their teen age boys threw a party for a couple hundred close and intimate friends. As night fell, the music got more frenzied and the dancers’ feet pounded louder on the deck. Suddenly there was a ear-splitting crack as the main joist gave way, pitching beer cans, teen-agers, and electric guitars into Redwood Creek.  A post-accident inspection showed dry-rot in the joist.

 One of the injured dancers sued my friend, who sued the landlord.  What result?

 BPOA does not offer legal advice and reminds its readers to seek professional help in specific situations.


Receive event reminders, news & alerts from BPOA.
You don't have to be a member to sign up!


October 27
Powerful Planning for Asset Protection

October 28
How to Turn Preventative Maintenance Into Money Savings

November 13
Member Meeting - In Person Insurance and Risk Management for Income Rental

January 06
Managing Tenant Liability

View the Calendar...


BPOA Monthly Newsletter

Another advantage of being a member of BPOA is that you will receive our monthly print newsletter. From news and political reports to articles and advice, we cover the state and local issues you need to know about as a housing provider in Berkeley.
Get your complimentary copy of a recent issue of the BPOA Monthly Right Here .

    Home    About BPOA    Articles    Calendar    Available Forms    Q&A    Resources    Members    Get in Touch    Join    Renew!    Sitemap    
Voice 510.525.3666 • ©2021 Berkeley Property Owners Association. All Rights Reserved.