CACI No. 4326. Affirmative Defense - Repair and Deduct

Judicial Council of California Civil Jury Instructions (2023 edition)

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4326.Affirmative Defense - Repair and Deduct
[Name of defendant] claims that [he/she/nonbinary pronoun] does not owe
[any/the full amount of] rent because [he/she/nonbinary pronoun] was not
given credit against the rent for repairs performed during the period for
which rent was not paid. To succeed on this defense, [name of defendant]
must prove the following:
1. [Name of defendant] gave notice to [name of plaintiff][’s agent] of
one or more conditions on the premises in need of repair;
2. [Name of plaintiff] did not make the requested repairs within a
reasonable time after receiving notice;
3. [Name of defendant] spent $ to make the repairs and gave
[name of plaintiff] notice of this expenditure;
4. [Name of plaintiff] did not give [name of defendant] credit for this
amount against the rent that was due; and
5. [Name of defendant] had not exercised the right to repair and
deduct more than once within the 12 months before the month
for which the cost of repairs was deducted from the rent.
If [name of defendant] acts to repair and deduct more than 30 days after
the notice, [he/she/nonbinary pronoun] is presumed to have waited a
reasonable time. This presumption may be overcome by evidence
showing that a [shorter/ [or] longer] period is more reasonable. [[Name
of defendant] may repair and deduct after a shorter notice if all the
circumstances require shorter notice.]
[Even if [name of defendant] proves all of the above requirements, [name
of defendant] was not entitled to repair and deduct if [name of plaintiff]
proves that [name of defendant] has done any of the following that
contributed substantially to the need for repair or interfered
substantially with [name of plaintiff]’s ability to make the necessary
[Failed to keep [his/her/nonbinary pronoun] living area as clean
and sanitary as the condition of the property permits][./; or]
[Failed to dispose of all rubbish, garbage, and other waste in a
clean and sanitary manner][./; or]
[Failed to properly use and operate all electrical, gas, and
plumbing fixtures and keep them as clean and sanitary as their
condition permits][./; or]
[Intentionally destroyed, defaced, damaged, impaired, or removed
any part of the property, equipment, or accessories, or allowed
others to do so][./; or]
[Failed to use the property for living, sleeping, cooking, or dining
purposes only as appropriate based on the design of the
[Otherwise failed to exercise reasonable care.]]
New April 2008
Directions for Use
Give this instruction if the tenant alleges the affirmative defense of having exercised
the right to make repairs and deduct their cost from the rent. (See Civ. Code,
§ 1942.) If the landlord alleges that repair and deduct is not available 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).)
Sources and Authority
Tenant’s Right to Repair and Deduct. Civil Code section 1942.
Repairs Caused by Lack of Ordinary Care. Civil Code section 1929.
When Landlord Not Obligated to Repair. Civil Code section 1941.2.
“[T]he limited nature of the ‘repair and deduct’ remedy, in itself, suggests that it
was not designed to serve as an exclusive remedy for tenants in this area. As
noted above, section 1942 only permits a tenant to expend up to one month’s
rent in making repairs, and now also provides that this self-help remedy can be
invoked only once in any 12-month period. These limitations demonstrate that
the Legislature framed the section only to encompass relatively minor
dilapidations in leased premises. As the facts of the instant case reveal, in the
most serious instances of deterioration, when the costs of repair are at all
significant, section 1942 does not provide, and could not have been designed as,
a viable solution.” (Green v. Superior Court of San Francisco (1974) 10 Cal.3d
616, 630-631 [111 Cal.Rptr. 704, 517 P.2d 1168], internal citations omitted.)
“Clearly, sections 1941 and 1942 express the policy of this state that landlords in
the interest of public health and safety have the duty to maintain leased premises
in habitable condition and that tenants have the right, after notice to the landlord,
to repair dilapidations and deduct the cost of the repairs from the rent. The
policy expressed in these sections cannot be effectuated if landlords may evict
tenants who invoke the provisions of the statute. Courts would be withholding
with one hand what the Legislature has granted with the other if they order
evictions instituted in retaliation against the exercise of statutory rights.”
(Schweiger v. Superior Court of Alameda County (1970) 3 Cal.3d 507, 516 [90
Cal.Rptr. 729, 476 P.2d 97].)
“[T]he statutory remedies provided a tenant under Civil Code section 1941 et
seq. were not intended by the Legislature as the tenant’s exclusive remedy for
the landlord’s failure to repair. ‘Although past cases have held that the
Legislature intended the remedies afforded by section 1942 to be the sole
procedure for enforcing the statutory duty on landlords imposed by section 1941
[citations], no decision has suggested that the Legislature designed these
statutory provisions to displace the common law in fixing the respective rights of
landlord and tenant. On the contrary, the statutory remedies of section 1942 have
traditionally been viewed as additional to, and complementary of, the tenant’s
common law rights.’ Thus, ‘. . . the statutory framework of section 1941 et seq.
has never been viewed as a curtailment of the growth of the common law in this
field.’ (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 914-915 [162
Cal.Rptr. 194], original italics, internal citations and footnote omitted.)
Secondary Sources
1 California Landlord-Tenant Practice, Ch. 3, Rights and Duties During Tenancy
(Cont.Ed.Bar 2d ed.) § 3.12 et seq.
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, § 170.42[3] (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer,
§ 210.64[10] (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damage, § 334.117 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.62
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.30 (Matthew Bender)

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