LANDLORDS OF UNPERMITTED UNIT CANNOT COLLECT RENT
Many landlords are aware that a tenant can defend an eviction proceeding by claiming that a rental unit is uninhabitable. Violations of building codes for things such as lack of heat, leaky ceilings and faulty electricity which go to the habitability of a unit and can be used as evidence by a tenant to have the Court declare the premises uninhabitable. If the Court finds that the premises are uninhabitable, then the landlord may not evict the tenant. Instead, the Court determines the reasonable rent for the premises. The tenant has an opportunity to pay the lower rent and avoid eviction.
On the other hand, if the landlord does not have a certificate of occupancy, he cannot collect any rent. In the case of Espinoza v. Calva 169 Cal. App. 4th 1393 (2008) a landlord sued for eviction and back rent. The Trial Court found the premises were uninhabitable and reduced the rent finding that the landlord was owed $2,350 for three months back rent.
The Court of Appeal reversed the monetary award. It ruled that since the landlord did not have a Certificate of Occupancy, the lease was an illegal contract and the tenant did not owe any money.
In another case, the Court of Appeal found that a tenant can sue a landlord for maintaining a public nuisance by allowing tobacco smoke in the common areas. In Birke v. Oakwood Worldwide 169 Cal. App. 4th 1540 (2009) the tenant was allowed to sue for damages and punitive damages because of alleged harmful effects suffered from second hand smoke in the common areas of an apartment complex.
