The Lease Requires The Lessor To Undertake
But Repairmen Never Appear! Can I Withhold The Rent?
Your lessor, in breach of his obligation under the lease, has failed to repair the
roof of the building. You contemplate
withholding rent to induce your mustached, black-caped lessor to commence
repairs. Is this a worthy approach to
solving your problem? Withhold rent and
you can count on a visit by a process server with an unlawful detainer
complaint identifying you as the defendant!
In a case arising out of a restaurant business in the City of Ontario, California,
the lessee failed to pay rent and taxes and
was thereafter confronted with a Three Day Notice to Pay or Quit. An unlawful detainer action quickly followed.
In his Answer to the Complaint, the lessee set forth an affirmative defense
essentially alleging that the lessor had breached its covenant to repair the
roof of the building causing the lessee substantial damages. The lessee alleged that the roof leaked water
to such an extent that it forced the lessee to operate his business with
“buckets on the tables to catch the leaking water, and with two inches of
standing water on one portion of the floor of the restaurant.”
After a loss at the trial level, the lessee then appealed, but won no solace from the
Court of Appeal which ruled that in a commercial setting, the lessee could not
assert the roof issue as an affirmative defense. The Court of Appeal concluded that the lessee
was privileged to pay the rent and file a separate action for damages against
the lessor as a result of the lessor’s breach of contract.
The Court of Appeal observed that in a commercial lease transaction:
“The parties are more likely to have equal
bargaining power, and, more importantly, a commercial tenant will presumably
have sufficient interest in the demised premises to make needed repairs and the
means to the make the needed repairs himself or herself, if necessary, and then
sue the lessor for damages.”
Circumstances are different, however, when a residential lease is involved. The courts have
determined that in a residential apartment lease, there exists an implied warranty of habitability.
An implied warranty is inferred from the content of the contract,
but not expressed in words.
Under the implied warranty of habitability, the lessor is considered to have
warranted that the property is, and will be, repaired and maintained in a
condition that meets certain minimum standards of habitability. The failure to meet those minimum standards
will constitute a breach of the warranty on the part of the lessor. The implied
warranty of habitability may be raised as a defense in a residential eviction
action based on non-payment of rent for the period during which the warranty
has allegedly been breached.
Illustrations of conditions which will constitute a breach of the implied warranty of
habitability under a residential lease include:
- Collapse of a bathroom ceiling and the failure to repair
- Continued presence of vermin
- Lack of heat
- Plumbing blockages
- Exposed and faulty electrical wiring which was illegally installed
- Windows broken and boarded up
- No hot water
- The failure, under certain circumstances, to protect lessees against criminal
In California, as in most states, a three day notice to pay rent or quit must be
served upon the lessee before the lessor can commence an action for unlawful
detainer to recover possession of the property.
What if business is poor, economic pressures are substantial, and you receive
such a notice? What are your options
regarding the issue of rent?
Pay the rent.
If you can find the money, pay the rent due
before the expiration of the three day notice.
If you anticipate repetitive difficulty in paying rent, beg or borrow
the money to buy time to sell your business.
A dangerous option. If, however, your attorney concludes that the
notice or service is defective, and defenses can therefore be raised in
forthcoming unlawful detainer action, you can consider waiting for the summons
and complaint and hope that the attorney’s advice was correct.
Negotiate with the lessor.
Many lessors would prefer to receive partial
payments under some type of payment plan rather than dealing with vacant
space. Never fear to negotiate.
Vacate the premises.
If you have no hope of securing money to pay
the rent, vacating the premises reduces the amount of any judgment that the
lessor might obtain against you.
Can a three day notice include late charges?
Unlawful detainer statutes in most jurisdictions refer to default in the
payment of rent and make no mention of charges other than rent. Thus, it might be argued that a notice is
ineffective if it includes amounts other than rent. Many leases, however, define rent under the
following provision: “All monetary
obligations of lessee to lessor under the terms of this Lease are deemed to be
rent.” A late charge under such a
definition will thus likely be recoverable by the lessor.
What if the lessor’s statement of rent in the three day notice is slightly in
error? At one time, such a defect could
be fatal; however, most jurisdictions, including California, presently provide
that if the amount claimed in the notice is clearly identified as an estimate,
the defect is not fatal. In California,
the applicable statute provides that if “it is determined upon the trial . . .
that rent was owing, and the amount claimed in the noticed was reasonably
estimated, the lessee shall be subject to judgment for possession in the actual
amount of rent and other sums found to be due.”
Unlawful detainer trials are entitled to priority in court and thus are heard relatively
quickly. In California, a lessee has
five days to respond to an unlawful detainer complaint after service and a
trial is set within twenty days after the court is advised that the lessee has
filed an answer to the complaint. In
view of the speed with which an unlawful detainer action proceeds to trial, if
a lessee has grievances against the lessor, the best course is to pay the rent
to avoid the unlawful detainer action and then file a complaint against the
Can you file a complaint against the lessor in an unlawful detainer action (as a
cross-complaint) so as to expedite a hearing about your grievances? No.
Cross-complaints by a defendant in an unlawful detainer action are not
The moral of the story? Equipment
off-location has minimal value! Give the
payment of rent high priority or, if your economic future is bleak, seek the
advice of a good lawyer before the process server knocks on your door!
[This column is intended to provide general information only and
is not intended to provide specific legal advice; if you have a
specific question regarding the law, you should contact an
attorney of your choice. Suggestions for topics to be discussed
in this column are welcome.]
Reprinted from The Journal
Myles M. Mattenson © 2005