If my landlord has stopped by and given a letter titled “3 Day Notice to Pay Rent or Vacate Premises”, what are our rights?

We have been living in this 2 story home for 10 years. We live upstairs and the first floor has been converted into a gym as a family business. We refused to pay rent for the last 12 months because the landlord failed to meet our requests to fix the issues with the house (plumbing, holes in walls, mold). These issues were present when we moved here in 10 years ago. Now, after months of no communication, the landlord has stopped by and given a letter titled “3 Day Notice to Pay Rent or Vacate Premises”. What is the best thing to do?

Asked on March 22, 2012 under Real Estate Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

You should speak with a landlord-tenant attorney: with 12 months rent, on the one hand, vs. eviction and loss of your home and business on the other hand, at stake, you need legal advice; don't try to handle this situation yourself.

That said, some principals:

1) You can be evicted for not paying rent.

2) A landlord does need to address significant issues affecting use of the rental premises (though he may effectively ignore minor issues), since such issues would violate the "implied warranty of habitability," or the legal requirement that all rental premises be fit for  their intended purpose. Significant plumbing, structural, or mold conditions can violate this warranty, but this is a fact-based question--how serious are they?

3) If the implied warranty of habitability is violated, it can, depending on the circumstances, give the tenant the right to receive a pro rata reduction in rent, to reflect the dimunition in fair market rental value of the premises in their impaired condition; or to make repairs him/herself and deduct the cost thereof (but no more than that) from the rent; or to get an order forcing the landlord to make repairs; or to more out ("constructive eviction") without penalty. However, it does NOT give the tenant the right to simply withhold all rent; therefore, you are risking eviction.

4) To evict you, if you don't leave voluntarily, the landlord has to take you to court.

5) When taken to court, you can try to raise the habitabilty issues as a defense to eviction, BUT the court may require you to deposit some or all of the unpaid rent with the court--that is, you may need to be prepared to deposit up to 12 months of rent at once.

The short answer is, you have rights, and may be entitled to compensation, but in withholding a year of rent, you have likely exceeded what you are entitled to do and may be subject to eviction. That is why you need an attorney. Good luck.


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