Section 42-806 – Tenant Remedies
First, the ordinance became effective yesterday. I know – I’m behind in getting these posts out. Hang in there and we’ll get through it. Section 806 of the CCRTLO is entitled “Tenant Remedies”. This section has tons of goodies for tenants to go on the offensive against their landlord.
Tenant remedy to withhold rent. Section 42-806(A) allows a tenant the right to withhold their rent in certain instances. If a landlord is not in material compliance with the rental agreement or with Section 42-805 (remember, that’s the section entitled Tenant’s Rights), and provided the tenant is not the deliberate or negligent cause of the condition that is not in compliance, upon written notice to the landlord of material noncompliance, the tenant can withhold rent for the next rent payment if the landlord does not remedy the material noncompliance within 14 days after receipt of the notice. The amount withheld may be the “amount of rent that reasonably reflects the reduced value of the premises”. This is similar to the rights contained in 5-12-110(d) of the CRLTO.
Tenant remedy to terminate lease. Section 42-806(B) allows a tenant to terminate their lease in certain instances. If a landlord is not in material compliance with the rental agreement or with section 42-805 (again, the section on Tenant’s Rights), and provided the tenant is not the deliberate or negligent cause of the out-of-compliance condition, upon written notice to the landlord of material noncompliance, the tenant can terminate the rental agreement and vacate the unit if the landlord does not remedy the material noncompliance within 14 days after receipt of the notice.
If the rental agreement is terminated, the landlord must return the security deposit “immediately” upon the tenant tendering possession. This is similar to the remedy contained in 5-12-110(a) of the CRLTO.
Can a tenant serve that notice and then just not move out? No. A tenant can waive their right to terminate in certain circumstances if the tenant fails to vacate after the longer of one month after the 14 day period expires or the end of the next rental period. If that is the case, the notice is deemed withdrawn and the rental agreement remains in force.
Tenant remedy to file affirmative action. Section 42-806(C) provides the right for a tenant to go to court to obtain an injunction and damages if a landlord does not materially comply with the rental agreement or with section 42-805 (the section on Tenant Rights). A landlord will have an affirmative defense if the condition out of compliance was caused by a deliberate or negligent act or omission of the tenant, tenant’s family, or tenant invitee. This is similar to the provision contained in 5-12-110(e) of the CRLTO.
Tenant remedy for denial of essential services. Section 42-806(D) provides a remedy for the denial of certain essential utilities. If a landlord is required to supply but fails to supply heat, running water, hot water, electricity, gas, plumbing, or internet access, upon written notice from the tenant specifying the service to be restored, if the landlord fails to correct the condition within 24 hours after notice, the tenant may take the following steps:
- Withhold an amount that “reasonably reflects the reduced value of the premises due to the material noncompliance or failure” from the rent; or
- Procure reasonable amounts of heat, running water, hot water, electricity, gas or plumbing service (as a result of what is likely bad or lazy drafting, internet access is left off this list) and, upon presentation to the landlord of paid receipts, deduct the cost from the rent; or
- Recover damages based upon the diminution in the fair rental value of the dwelling unit and reasonable attorney fees; or
- Procure substitute housing, in which case the tenant is excused from paying rent for the period of noncompliance. The tenant may recover the cost of reasonable value of the substitute housing up to an amount equal to the monthly rent and reasonable fees.
In addition, if the failure to supply services extends for more than 72 hours after the tenant notifies the landlord, then the tenant has a right to terminate the rental agreement upon written notice. Upon termination, the tenant must deliver possession of the dwelling unit to the landlord within the longer of (a) 30 days after the expiration of the 72 hour time period specified in the written notice or (b) the end of the next rental period. The landlord must return the security deposit immediately upon the tenant delivering possession. And again, we have a waiver provisions where the termination is waived if the tenant fails to vacate after the longer of 30 days after notice of termination or the end of the next rental period and instead, the rental agreement remains in force.
So is a landlord responsible for a typical power outage? For days when the internet is down? No. The tenant may not exercise the rights under section 42-806(D) if (a) the condition was caused by the inability of a utility supplier or internet provider to provide service unless the landlord caused the inability or (b) the condition was caused by a deliberate or negligent act or omission of the tenant, tenant’s family, or tenant invitee.
This remedy is similar to the one contained in 5-12-110(f) of the CRLTO, although the laundry list of utilities that might be provided is adjusted to add internet service (look how cutting edge the County is!).
Tenant remedy for fire or casualty. Section 42-806(E) deals with the issue of fires and other major damage to a rental unit. If the unit or the premises are damaged or destroyed by fire or casualty such that the unit is in material noncompliance with the rental agreement or with section 805(C) (these are the habitability requirements under the section on Tenants Rights), the tenant may (1) immediately vacate the premises and (2) notify the landlord in writing within 14 days thereafter of the tenant’s intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of fire or casualty.
If continued occupancy is lawful, the tenant may vacate any part of the dwelling unit rendered unusable by the fire or casualty, in which case the tenant’s liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit.
If the tenant desires to continue the tenancy and if the landlord has promised or begun work to repair the damage or destruction but fails to carry out the work to restore the dwelling unit or common area diligently and within a reasonable time, the tenant may notify the landlord in writing within 14 days after the tenant becomes aware that work is not being carried out diligently, or within a reasonable time of the tenant’s intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of the fire or casualty.
If the rental agreement is terminated, the landlord shall return all security deposit within 48 hours. When the landlord accounts for rent after the tenant has terminated the rental agreement, the landlord shall not charge rent to the tenant for any date after the date of the fire or casualty.
A tenant may not exercise remedies in this section if the fire or casualty damage was caused by the deliberate or negligent act or omission of the tenant, the tenant’s family, or the tenant’s invitee.
This is similar to the fire and casualty provisions contained in 5-12-110(g) of the CRLTO
Tenant remedy for minor repairs. Under section 42-806(F), tenants have a remedy allowing repair and deduct for low cost repairs. If the landlord is not in material compliance with the rental agreement or with section 42-805 and the reasonable cost of compliance does not exceed the greater of either $500.00 or one-half of one month’s rent, then the tenant may serve the landlord a notice indicating that the landlord must remedy the condition within 14 days or as promptly as conditions require in case of emergency, and if not, the tenant may correct the condition and withhold the cost of the repair from the tenant’s next rent payment. Any tenant performed work shall be done in a workmanlike manner and the tenant must submit a paid bill from an appropriate trades person or supplier at the same time as deducting the amount from their rent.
A tenant shall not have a right to repair and deduct if the condition was caused by the deliberate or negligent act or omission of the tenant, tenant’s family, or tenant’s invitee. Before correcting a common area, the tenant shall notify all other affected tenants of their plans and arrange the work as to create the least practicable inconvenience to the other tenants.
This is similar to the remedy provided in 5-12-110(c) of the CRLTO.
That’s it for this section. In our next portion of this series, we will delve into something most landlords feel is commonly overlook in landlord-tenant ordinances – tenant obligations.