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Habitability Issues

Where there are repair problems involving the health, safety or welfare of the tenant, the landlord has a duty to make necessary repairs under the implied warranty of habitability. The tenant should notify the landlord of the problem (preferably in writing). If after a reasonable time the landlord ignores the requests or refuses to make repairs, the tenant may:

  • repair and deduct,

  • abandon the rental unit, or

  • withhold rent.

Before using the above remedies, the tenant should consult legal advice to determine which method is most fitting to the situation.

Repair and Deduct

This remedy is used to correct subpar conditions that affect the tenant's health and safety. Under this remedy, the tenant may repair and deduct the cost of repair (up to one-month's rent) from the rent when it is due. The tenant is permitted to do this twice within a 12-month period.


If the cost to repair the subpar conditions exceeds the amount of one month's rent, the tenant may abandon the premises. Once the property is abandoned, there is no further responsibility to pay rent.

Rent Witholding

The defect necessary to withhold rent must be serious enough to make the property uninhabitable. The tenant then may withhold the rent until the landlord makes repairs. The tenant should deposit the rent into a separate account so that when and if the matter goes to court, the judge is able to see the tenant's willingness to pay rent, but for the serious condition on the property.

Do you have questions regarding your habitability? If so, please contact Aziz Legal by phone at (408) 203-4627 or email us at

This article is merely informational and is not intended to be used as legal advice. Use of any information from this article is for general information only and does not represent personal legal or tax advice, either express or implied. Readers are encouraged to consult Aziz Legal, or another attorney, for any specific legal matters.

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