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A Tenant May Recover Statutory Attorney Fees In An Eviction Action If The Court Determines That The Tenant’s Rental Unit Is Not Habitable And The Conditions Requiring Repair Were Cited By The City

On October 26, 2016, the Appellate Division of the Superior Court of California issued a published opinion in Active Properties LLC v. Maria Cabrera holding that a tenant that prevails in an unlawful detainer action based on a breach of the warranty of habitability may recover statutory attorney fees by filing a noticed motion provided the conditions set forth in Civil Code section 1942.4 have been met.

Civil Code section 1942.4 requires the tenant to establish the following: (1) The dwelling substantially lacks the affirmative standard characteristics specified in the Civil Code for habitable premises, violates certain requirements of the Health and Safety Code, or is deemed and declared substandard because conditions listed the Health and Safety Code exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling. (2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions. (3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice and the delay is without good cause. (4) The conditions were not caused by an act or omission of the tenant.

In this case, the Los Angeles Housing Department (LAHD) inspected and cited the landlord’s property, and thereafter ordered the landlord to “[f]umigate/exterminate as necessary to eliminate insect infestations” in the tenant’s apartment. Roughly 18 months later, the landlord filed an unlawful detainer action against the tenant for non-payment of rent. A jury decided that the landlord had breached the warranty of habitability. After trial, the tenant filed a motion to recover statutory attorney fees arguing that the landlord never complied with the LAHD’s order. The trial court denied the motion. However, the Appellate Division of the Superior Court concluded that the tenant had met the requirements of Civil Code section 1942.4 and hence was entitled to attorney fees.

The moral of the story is that landlords should confirm that a tenant’s rental unit is habitable before filing an eviction action against a tenant for non-payment of rent, especially if the rental unit has been cited by a government inspector.

For further information, please contact Wallace, Richardson, Sontag & Le, LLP at (949) 748-3600; website:

The law firm of Wallace, Richardson, Sontag & Le, LLP represents landlords, property management companies, institutional and private lenders, employers and insurance companies throughout the State of California in real estate, business and employment litigation. The information provided herein is for general interest only and should not be relied upon or construed as legal advice.

December 14, 2016 | Landlord-Tenant Law |