CACI No. 4320. Affirmative Defense - Implied Warranty of Habitability

Judicial Council of California Civil Jury Instructions (2023 edition)

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4320.Affirmative Defense - Implied Warranty of Habitability
[Name of defendant] claims that [he/she/nonbinary pronoun] does not owe
[any/the full amount of] rent because [name of plaintiff] did not maintain
the property in a habitable condition. To succeed on this defense, [name
of defendant] must prove that [name of plaintiff] failed to provide one or
more of the following:
a. [effective waterproofing and weather protection of roof and
exterior walls, including unbroken windows and doors][./; or]
b. [plumbing or gas facilities that complied with applicable law in
effect at the time of installation and that were maintained in good
working order][./; or]
c. [a water supply capable of producing hot and cold running water
furnished to appropriate fixtures, and connected to a sewage
disposal system][./; or]
d. [heating facilities that complied with applicable law in effect at
the time of installation and that were maintained in good working
order][./; or]
e. [electrical lighting with wiring and electrical equipment that
complied with applicable law in effect at the time of installation
and that were maintained in good working order][./; or]
f. [building, grounds, and all areas of the landlord’s control, kept in
every part clean, sanitary, and free from all accumulations of
debris, filth, rubbish, garbage, rodents, and vermin][./; or]
g. [an adequate number of containers for garbage and rubbish, in
clean condition and good repair][./; or]
h. [floors, stairways, and railings maintained in good
repair][./; or]
i. [Insert other applicable standard relating to habitability.]
[Name of plaintiff]’s failure to meet these requirements does not
necessarily mean that the property was not habitable. The failure must
be substantial. A condition that occurred only after [name of defendant]
failed or refused to pay rent and was served with a notice to pay rent or
vacate the property cannot be a defense to the previous nonpayment.
[Even if [name of defendant] proves that [name of plaintiff] substantially
failed to meet any of these requirements, [name of defendant]’s defense
fails if [name of plaintiff] proves that [name of defendant] has done any of
the following that contributed substantially to the condition or interfered
substantially with [name of plaintiff]’s ability to make the necessary
i. [substantially failed to keep [his/her/nonbinary pronoun] living
area as clean and sanitary as the condition of the property
permitted][./; or]
i. [substantially failed to dispose of all rubbish, garbage, and other
waste in a clean and sanitary manner][./; or]
i. [substantially failed to properly use and operate all electrical, gas,
and plumbing fixtures and keep them as clean and sanitary as
their condition permitted][./; or]
i. [intentionally destroyed, defaced, damaged, impaired, or removed
any part of the property, equipment, or accessories, or allowed
others to do so][./; or]
i. [substantially failed to use the property for living, sleeping,
cooking, or dining purposes only as appropriate based on the
design of the property.]]
The fact that [name of defendant] has continued to occupy the property
does not necessarily mean that the property is habitable.
New August 2007; Revised June 2010, June 2013, December 2014, November 2020
Directions for Use
This instruction applies only to residential tenancies. (See Code Civ. Proc.,
§ 1174.2(a).)
The habitability standards included are those set forth in Civil Code section 1941.1.
Use only those relevant to the case. Or insert other applicable standards as
appropriate, for example, other statutory or regulatory requirements (Knight v.
Hallsthammar (1981) 29 Cal.3d 46, 59, fn.10 [171 Cal.Rptr. 707, 623 P.2d 268]; see
Health & Saf. Code, §§ 17920.3, 17920.10) or security measures. (See Secretary of
Housing & Urban Dev. v. Layfield (1978) 88 Cal.App.3d Supp. 28, 30 [152
Cal.Rptr. 342].)
If the landlord alleges that the implied warranty of habitability does not apply
because of the tenant’s affirmative misconduct, select the applicable reasons. The
first two reasons do not apply if the landlord has expressly agreed in writing to
perform those acts. (Civ. Code, § 1941.2(b).)
In a case not involving unlawful detainer and the failure to pay rent, the California
Supreme Court has stated that the warranty of habitability extends only to
conditions of which the landlord knew or should have discovered through
reasonable inspections. (See Peterson v. Superior Court (1995) 10 Cal.4th 1185,
1206 [43 Cal.Rptr.2d 836, 899 P.2d 905].) The law on a landlord’s notice in the
unlawful detainer context, however, remains unsettled. (Knight, supra, 29 Cal.3d at
p. 55, fn. 6.) A landlord has a duty to maintain the premises in a habitable condition
irrespective of whether the tenant knows about a particular condition. (Knight,
supra, 29 Cal.3d at p. 54.)
Sources and Authority
Landlord’s Duty to Make Premises Habitable. Civil Code section 1941.
Breach of Warranty of Habitability. Code of Civil Procedure section 1174.2.
Untenantable Dwelling. Civil Code section 1941.1(a).
Effect of Tenant’s Violations. Civil Code section 1941.2.
Liability of Landlord Demanding Rent for Uninhabitable Property. Civil Code
section 1942.4(a).
“Once we recognize that the tenant’s obligation to pay rent and the landlord’s
warranty of habitability are mutually dependent, it becomes clear that the
landlord’s breach of such warranty may be directly relevant to the issue of
possession. If the tenant can prove such a breach by the landlord, he may
demonstrate that his nonpayment of rent was justified and that no rent is in fact
‘due and owing’ to the landlord. Under such circumstances, of course, the
landlord would not be entitled to possession of the premises.” (Green v. Superior
Court (1974) 10 Cal.3d 616, 635 [111 Cal.Rptr. 704, 517 P.2d 1168].)
“We have concluded that a warranty of habitability is implied by law in
residential leases in this state and that the breach of such a warranty may be
raised as a defense in an unlawful detainer action. Under the implied warranty
which we recognize, a residential landlord covenants that premises he leases for
living quarters will be maintained in a habitable state for the duration of the
lease. This implied warranty of habitability does not require that a landlord
ensure that leased premises are in perfect, aesthetically pleasing condition, but it
does mean that ‘bare living requirements’ must be maintained. In most cases
substantial compliance with those applicable building and housing code
standards which materially affect health and safety will suffice to meet the
landlord’s obligations under the common law implied warranty of habitability we
now recognize.” (Green, supra, 10 Cal.3d at p. 637, footnotes omitted.)
“It follows that substantial noncompliance with applicable code standards could
lead to a breach of the warranty of habitability.” (Erlach v. Sierra Asset
Servicing, LLC (2014) 226 Cal.App.4th 1281, 1298, fn. 9 [173 Cal.Rptr.3d 159].)
“[U]nder Green, a tenant may assert the habitability warranty as a defense in an
unlawful detainer action. The plaintiff, of course, is not required to plead
negative facts to anticipate a defense.” (De La Vara v. Municipal Court (1979)
98 Cal.App.3d 638, 641 [159 Cal.Rptr. 648], internal citations omitted.)
“[T]he fact that a tenant was or was not aware of specific defects is not
determinative of the duty of a landlord to maintain premises which are habitable.
The same reasons which imply the existence of the warranty of habitability - the
inequality of bargaining power, the shortage of housing, and the impracticability
of imposing upon tenants a duty of inspection - also compel the conclusion that
a tenant’s lack of knowledge of defects is not a prerequisite to the landlord’s
breach of the warranty.” (Knight, supra, 29 Cal.3d at p. 54.)
“The implied warranty of habitability recognized in Green gives a tenant a
reasonable expectation that the landlord has inspected the rental dwelling and
corrected any defects disclosed by that inspection that would render the dwelling
uninhabitable. The tenant further reasonably can expect that the landlord will
maintain the property in a habitable condition by repairing promptly any
conditions, of which the landlord has actual or constructive notice, that arise
during the tenancy and render the dwelling uninhabitable. A tenant injured by a
defect in the premises, therefore, may bring a negligence action if the landlord
breached its duty to exercise reasonable care. But a tenant cannot reasonably
expect that the landlord will have eliminated defects in a rented dwelling of
which the landlord was unaware and which would not have been disclosed by a
reasonable inspection.” (Peterson, supra, 10 Cal.4th at pp. 1205-1206, footnotes
“At least in a situation where, as here, a landlord has notice of alleged
uninhabitable conditions not caused by the tenants themselves, a landlord’s
breach of the implied warranty of habitability exists whether or not he has had a
‘reasonable’ time to repair. Otherwise, the mutual dependence of a landlord’s
obligation to maintain habitable premises, and of a tenant’s duty to pay rent,
would make no sense.” (Knight, supra, 29 Cal.3d at p. 55, footnote omitted.)
“[A] tenant may defend an unlawful detainer action against a current owner, at
least with respect to rent currently being claimed due, despite the fact that the
uninhabitable conditions first existed under a former owner.” (Knight, supra, 29
Cal.3d at p. 57.)
“Without evaluating the propriety of instructing the jury on each item included
in the defendants’ requested instruction, it is clear that, where appropriate under
the facts of a given case, tenants are entitled to instructions based upon relevant
standards set forth in Civil Code section 1941.1 whether or not the ‘repair and
deduct’ remedy has been used.” (Knight, supra, 29 Cal.3d at p. 58.)
“The defense of implied warranty of habitability is not applicable to unlawful
detainer actions involving commercial tenancies.” (Fish Construction Co. v.
Moselle Coach Works, Inc. (1983) 148 Cal.App.3d 654, 658 [196 Cal.Rptr. 174],
internal citation omitted.)
“In the event of a landlord’s breach of the implied warranty of habitability, the
tenant is not absolved of the obligation to pay rent; rather the tenant remains
liable for the reasonable rental value as determined by the court for the period
that the defective condition of the premises existed.” (Erlach,supra, 226
Cal.App.4th at p. 1297.)
“In defending against a 30-day notice, the sole purpose of the [breach of the
warranty of habitability] defense is to reduce the amount of daily damages for
the period of time after the notice expires.” (N. 7th St. Assocs. v. Constante
(2001) 92 Cal.App.4th Supp. 7, 11, fn. 1 [111 Cal.Rptr.2d 815].)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 651
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 3-A, Warranty Of
Habitability - In General, 3:1 et seq. (The Rutter Group)
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.109-8.112
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 10.64, 12.36-12.37
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) Ch. 15
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.64,
210.95A (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.28 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.61
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21
Miller & Starr, California Real Estate 4th, § 19:224 (Thomson Reuters)

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