Can my landlord refuse to let me terminate the lease due to uninhabitability?

There is a termination clause in my lease that states:. Damage to Premises: If, by no fault of Tenant, Premises are totally or partially damaged or destroyed by fire, earthquake, accident, or other casualty that render Premises totally or partially uninhabitable, either Landlord or Tenant may terminate this Agreement by giving the other written notice. I gave this termination notice in writing to my landlord after having sewage remnants and mold from a backup in my garage for 3 weeks without being professionally cleaned. This backup is due to roots in the sewage line, which the HOA is at fault.

Asked on July 1, 2012 under Real Estate Law, California


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

You can terminate the lease even without that termination clause in the lease.  In every lease there is an implied warranty of habitability which requires the landlord to maintain the premises in a habitable condition by complying with local and state housing codes.  The sewage and mold are health issues which constitute a breach of the implied warranty of habitability.  When there is a breach of the implied warranty of habitability, the tenant notifies the landlord as you have done and the landlord is required to respond within a reasonable time by making the necessary repairs.  If the landlord fails to respond within a reasonable time by making the necessary repairs, the tenant has the following remedies:  The tenant can make the repairs (hire someone to make the repairs) and deduct the cost from the rent or the tenant can move out and terminate the obligation to pay rent for the balance of the term of the lease or if the tenant stays on the premises, the tenant can withhold rent and defend against eviction.  Another alternative is to sue the landlord for breach of the implied warranty of habitability.  You can also contact your local housing code inspector, who can bring an enforcement action against the landlord for housing code violations.

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