CACI 4326 Affirmative Defense—Repair and Deduct

California Civil Jury Instructions CACI

4326 Affirmative Defense—Repair and Deduct

[Name of defendant] claims that [he/she/nonbinary pronoun] does not owe [any/the full amount of] rent because [he/she/nonbinary pronoun] was not given credit against the rent for repairs performed during the period for which rent was not paid. To succeed on this defense, [name of defendant] must prove the following:

1.[Name of defendant] gave notice to [name of plaintiff][’s agent] of one or more conditions on the premises in need of repair;

2.[Name of plaintiff] did not make the requested repairs within a reasonable time after receiving notice;

3.[Name of defendant] spent $ to make the repairs and gave [name of plaintiff] notice of this expenditure;

4.[Name of plaintiff] did not give [name of defendant] credit for this amount against the rent that was due; and

5.[Name of defendant] had not exercised the right to repair and deduct more than once within the 12 months before the month for which the cost of repairs was deducted from the rent.

If [name of defendant] acts to repair and deduct more than 30 days after the notice, [he/she/nonbinary pronoun] is presumed to have waited a reasonable time. This presumption may be overcome by evidence showing that a [shorter/ [or] longer] period is more reasonable. [[Name of defendant] may repair and deduct after a shorter notice if all the circumstances require shorter notice.]

[Even if [name of defendant] proves all of the above requirements, [name of defendant] was not entitled to repair and deduct if [name of plaintiff] proves that [name of defendant] has done any of the following that contributed substantially to the need for repair or interfered substantially with [name of plaintiff]’s ability to make the necessary repairs:

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

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

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

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

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

[Otherwise failed to exercise reasonable care.]]

Directions for Use

Give this instruction if the tenant alleges the affirmative defense of having exercised the right to make repairs and deduct their cost from the rent. (See Civ. Code, § 1942.) If the landlord alleges that repair and deduct is not available 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).)

Sources and Authority

Tenant’s Right to Repair and Deduct. Civil Code section 1942.

Repairs Caused by Lack of Ordinary Care. Civil Code section 1929.

When Landlord Not Obligated to Repair. Civil Code section 1941.2.

“[T]he limited nature of the ‘repair and deduct’ remedy, in itself, suggests that it was not designed to serve as an exclusive remedy for tenants in this area. As noted above, section 1942 only permits a tenant to expend up to one month’s rent in making repairs, and now also provides that this self-help remedy can be invoked only once in any 12-month period. These limitations demonstrate that the Legislature framed the section only to encompass relatively minor dilapidations in leased premises. As the facts of the instant case reveal, in the most serious instances of deterioration, when the costs of repair are at all significant, section 1942 does not provide, and could not have been designed as, a viable solution.” (Green v. Superior Court of San Francisco (1974) 10 Cal.3d 616, 630–631 [111 Cal.Rptr. 704, 517 P.2d 1168], internal citations omitted.)

“Clearly, sections 1941 and 1942 express the policy of this state that landlords in the interest of public health and safety have the duty to maintain leased premises in habitable condition and that tenants have the right, after notice to the landlord, to repair dilapidations and deduct the cost of the repairs from the rent. The policy expressed in these sections cannot be effectuated if landlords may evict tenants who invoke the provisions of the statute. Courts would be withholding with one hand what the Legislature has granted with the other if they order evictions instituted in retaliation against the exercise of statutory rights.” (Schweiger v. Superior Court of Alameda County (1970) 3 Cal.3d 507, 516 [90 Cal.Rptr. 729, 476 P.2d 97].)

“[T]he statutory remedies provided a tenant under Civil Code section 1941 et seq. were not intended by the Legislature as the tenant’s exclusive remedy for the landlord’s failure to repair. ‘Although past cases have held that the Legislature intended the remedies afforded by section 1942 to be the sole procedure for enforcing the statutory duty on landlords imposed by section 1941 [citations], no decision has suggested that the Legislature designed these statutory provisions to displace the common law in fixing the respective rights of landlord and tenant. On the contrary, the statutory remedies of section 1942 have traditionally been viewed as additional to, and complementary of, the tenant’s common law rights.’ Thus, ‘… the statutory framework of section 1941 et seq. has never been viewed as a curtailment of the growth of the common law in this field.’ ” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 914–915 [162 Cal.Rptr. 194], original italics, internal citations and footnote omitted.)

Secondary Sources

1 California Landlord-Tenant Practice, Ch. 3, Rights and Duties During Tenancy (Cont.Ed.Bar 2d ed.) § 3.12 et seq.
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and Liabilities, § 170.42[3] (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.64[10] (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant: Claims for Damage, § 334.117 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.62 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5, Unlawful Detainer, 5.30 (Matthew Bender)