CACI 4320 Affirmative Defense—Implied Warranty of Habitability

California Civil Jury Instructions CACI

4320 Affirmative Defense—Implied Warranty of Habitability

[Name of defendant] claims that [he/she/nonbinary pronoun] does not owe [any/the full amount of] rent because [name of plaintiff] did not maintain the property in a habitable condition. To succeed on this defense, [name of defendant] must prove that [name of plaintiff] failed to provide one or more of the following:

a.[effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors][./; or]

b.[plumbing or gas facilities that complied with applicable law in effect at the time of installation and that were maintained in good working order][./; or]

c.[a water supply capable of producing hot and cold running water furnished to appropriate fixtures, and connected to a sewage disposal system][./; or]

d.[heating facilities that complied with applicable law in effect at the time of installation and that were maintained in good working order][./; or]

e.[electrical lighting with wiring and electrical equipment that complied with applicable law in effect at the time of installation and that were maintained in good working order][./; or]

f.[building, grounds, and all areas of the landlord’s control, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin][./; or]

g.[an adequate number of containers for garbage and rubbish, in clean condition and good repair][./; or]

h.[floors, stairways, and railings maintained in good
repair][./; or]

i.[Insert other applicable standard relating to habitability.]

[Name of plaintiff]’s failure to meet these requirements does not necessarily mean that the property was not habitable. The failure must be substantial. A condition that occurred only after [name of defendant] failed or refused to pay rent and was served with a notice to pay rent or vacate the property cannot be a defense to the previous nonpayment.

[Even if [name of defendant] proves that [name of plaintiff] substantially failed to meet any of these requirements, [name of defendant]’s defense fails if [name of plaintiff] proves that [name of defendant] has done any of the following that contributed substantially to the condition or interfered substantially with [name of plaintiff]’s ability to make the necessary repairs:

[substantially failed to keep [his/her/nonbinary pronoun] living area as clean and sanitary as the condition of the property permitted][./; or]

[substantially failed to dispose of all rubbish, garbage, and other waste in a clean and sanitary manner][./; or]

[substantially failed to properly use and operate all electrical, gas, and plumbing fixtures and keep them as clean and sanitary as their condition permitted][./; or]

[intentionally destroyed, defaced, damaged, impaired, or removed any part of the property, equipment, or accessories, or allowed others to do so][./; or]

[substantially failed to use the property for living, sleeping, cooking, or dining purposes only as appropriate based on the design of the property.]]

The fact that [name of defendant] has continued to occupy the property does not necessarily mean that the property is habitable.

New August 2007; Revised June 2010, June 2013, December 2014, November 2020

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Directions for Use

This instruction applies only to residential tenancies. (See Code Civ. Proc., § 1174.2(a).)

The habitability standards included are those set forth in Civil Code section 1941.1. Use only those relevant to the case. Or insert other applicable standards as appropriate, for example, other statutory or regulatory requirements (Knight v. Hallsthammar (1981) 29 Cal.3d 46, 59, fn.10 [171 Cal.Rptr. 707, 623 P.2d 268]; see Health & Saf. Code, §§ 17920.3, 17920.10) or security measures. (See Secretary of Housing & Urban Dev. v. Layfield (1978) 88 Cal.App.3d Supp. 28, 30 [152 Cal.Rptr. 342].)

If the landlord alleges that the implied warranty of habitability does not apply because of the tenant’s affirmative misconduct, select the applicable reasons. The first two reasons do not apply if the landlord has expressly agreed in writing to perform those acts. (Civ. Code, § 1941.2(b).)

In a case not involving unlawful detainer and the failure to pay rent, the California Supreme Court has stated that the warranty of habitability extends only to conditions of which the landlord knew or should have discovered through reasonable inspections. (See Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1206 [43 Cal.Rptr.2d 836, 899 P.2d 905].) The law on a landlord’s notice in the unlawful detainer context, however, remains unsettled. (Knight, supra, 29 Cal.3d at p. 55, fn. 6.) A landlord has a duty to maintain the premises in a habitable condition irrespective of whether the tenant knows about a particular condition. (Knight, supra, 29 Cal.3d at p. 54.)

Sources and Authority

Landlord’s Duty to Make Premises Habitable. Civil Code section 1941.

Breach of Warranty of Habitability. Code of Civil Procedure section 1174.2.

Untenantable Dwelling. Civil Code section 1941.1(a).

Effect of Tenant’s Violations. Civil Code section 1941.2.

Liability of Landlord Demanding Rent for Uninhabitable Property. Civil Code section 1942.4(a).

“Once we recognize that the tenant’s obligation to pay rent and the landlord’s warranty of habitability are mutually dependent, it becomes clear that the landlord’s breach of such warranty may be directly relevant to the issue of possession. If the tenant can prove such a breach by the landlord, he may demonstrate that his nonpayment of rent was justified and that no rent is in fact ‘due and owing’ to the landlord. Under such circumstances, of course, the landlord would not be entitled to possession of the premises.” (Green v. Superior Court (1974) 10 Cal.3d 616, 635 [111 Cal.Rptr. 704, 517 P.2d 1168].)

“We have concluded that a warranty of habitability is implied by law in residential leases in this state and that the breach of such a warranty may be raised as a defense in an unlawful detainer action. Under the implied warranty which we recognize, a residential landlord covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease. This implied warranty of habitability does not require that a landlord ensure that leased premises are in perfect, aesthetically pleasing condition, but it does mean that ‘bare living requirements’ must be maintained. In most cases substantial compliance with those applicable building and housing code standards which materially affect health and safety will suffice to meet the landlord’s obligations under the common law implied warranty of habitability we now recognize.” (Green, supra, 10 Cal.3d at p. 637, footnotes omitted.)

“It follows that substantial noncompliance with applicable code standards could lead to a breach of the warranty of habitability.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1298, fn. 9 [173 Cal.Rptr.3d 159].)

“[U]nder Green, a tenant may assert the habitability warranty as a defense in an unlawful detainer action. The plaintiff, of course, is not required to plead negative facts to anticipate a defense.” (De La Vara v. Municipal Court (1979) 98 Cal.App.3d 638, 641 [159 Cal.Rptr. 648], internal citations omitted.)

“[T]he fact that a tenant was or was not aware of specific defects is not determinative of the duty of a landlord to maintain premises which are habitable. The same reasons which imply the existence of the warranty of habitability—the inequality of bargaining power, the shortage of housing, and the impracticability of imposing upon tenants a duty of inspection—also compel the conclusion that a tenant’s lack of knowledge of defects is not a prerequisite to the landlord’s breach of the warranty.” (Knight, supra, 29 Cal.3d at p. 54.)

“The implied warranty of habitability recognized in Green gives a tenant a reasonable expectation that the landlord has inspected the rental dwelling and corrected any defects disclosed by that inspection that would render the dwelling uninhabitable. The tenant further reasonably can expect that the landlord will maintain the property in a habitable condition by repairing promptly any conditions, of which the landlord has actual or constructive notice, that arise during the tenancy and render the dwelling uninhabitable. A tenant injured by a defect in the premises, therefore, may bring a negligence action if the landlord breached its duty to exercise reasonable care. But a tenant cannot reasonably expect that the landlord will have eliminated defects in a rented dwelling of which the landlord was unaware and which would not have been disclosed by a reasonable inspection.” (Peterson, supra, 10 Cal.4th at pp. 1205–1206, footnotes omitted.)

“At least in a situation where, as here, a landlord has notice of alleged uninhabitable conditions not caused by the tenants themselves, a landlord’s breach of the implied warranty of habitability exists whether or not he has had a ‘reasonable’ time to repair. Otherwise, the mutual dependence of a landlord’s obligation to maintain habitable premises, and of a tenant’s duty to pay rent, would make no sense.” (Knight, supra, 29 Cal.3d at p. 55, footnote omitted.)

“[A] tenant may defend an unlawful detainer action against a current owner, at least with respect to rent currently being claimed due, despite the fact that the uninhabitable conditions first existed under a former owner.” (Knight, supra, 29 Cal.3d at p. 57.)

“Without evaluating the propriety of instructing the jury on each item included in the defendants’ requested instruction, it is clear that, where appropriate under the facts of a given case, tenants are entitled to instructions based upon relevant standards set forth in Civil Code section 1941.1 whether or not the ‘repair and deduct’ remedy has been used.” (Knight, supra, 29 Cal.3d at p. 58.)

“The defense of implied warranty of habitability is not applicable to unlawful detainer actions involving commercial tenancies.” (Fish Construction Co. v. Moselle Coach Works, Inc. (1983) 148 Cal.App.3d 654, 658 [196 Cal.Rptr. 174], internal citation omitted.)

“In the event of a landlord’s breach of the implied warranty of habitability, the tenant is not absolved of the obligation to pay rent; rather the tenant remains liable for the reasonable rental value as determined by the court for the period that the defective condition of the premises existed.” (Erlachsupra, 226 Cal.App.4th at p. 1297.)

“In defending against a 30-day notice, the sole purpose of the [breach of the warranty of habitability] defense is to reduce the amount of daily damages for the period of time after the notice expires.” (N. 7th St. Assocs. v. Constante (2001) 92 Cal.App.4th Supp. 7, 11, fn. 1 [111 Cal.Rptr.2d 815].)

Secondary Sources

12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 651
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 3-A, Warranty Of Habitability—In General, ¶ 3:1 et seq. (The Rutter Group)
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.109–8.112
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 10.64, 12.36–12.37
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) Ch. 15
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.64, 210.95A (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant: Eviction Actions, § 333.28 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.61 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5, Unlawful Detainer, 5.21
Miller & Starr, California Real Estate 4th, § 19:224 (Thomson Reuters)