Does the Law Require My Landlord to Provide Heat?

The law requires landlords to provide Berkeley tenants with heat.  California Civil Code § 1941.1(a)(4); Erlach v. Sierra Asset Sericing, LLC, (2014) 226 Cal. App. 4th 1281, 1292.  Specifically, the heat must conform with applicable law at the time of installation.  Id.  Conforming typically requires that the heating system meet minimum temperature requirements, be permanent and not portable, and that the landlord ensure that it is installed and maintained in a safe condition in accordance with applicable building codes and other law.  The law explicitly requires that the landlord maintain the heating system in good working order.  Id.  Good working order requires that the heating system function properly, operate in a safe condition, and, should it become inoperable during a tenancy, the landlord perform promptly and adequate repairs.

Where a landlord fails to provide heat, their actions put Berkeley tenants at risk of danger.  Firstly, should the landlord continue to collect rent, the Berkeley tenant will have overpaid rent while the heat was inoperable.  Secondly, the Berkeley tenant possesses legal claims, including for, inter alia, for breach of the warranty of habitability, breach of the covenant of quiet enjoyment, nuisance, and other legal claims. Erlach v. Sierra Asset Servicing, LLC, (2014) 226 Cal. App. 4th 1281, 1298, fn. 9 (“It follows that substantial noncompliance with applicable code standards could lead to a breach of the warranty of habitability.”).  Thirdly, the landlord has an obligation to restore the Berkeley tenant’s heat promptly and adequately.  The law is clear: Landlords must provide Berkeley tenants with heat.

How Quickly Must My Landlord Repair An Inoperable Heating System?

Generally, heat is a crucial service for Berkeley tenants, especially during the winter months.  Therefore, landlords are required to perform repairs without delay.  Despite an operable heating system’s integrality to a habitable tenancy no definitive period exists as to how quickly landlords must repair inoperable heating systems.  Every broken heating system will be unique.  Therefore, it is imperative that the Berkeley tenant document every aspect of the inoperable heat, save their communications with their landlords, and keep a timeline as to every development until the heat is finally restored in their home.

What Steps Can Berkeley Tenants Take to Restore Heat to Their Homes?

Although a landlord’s obligation to provide heat is clear, it is not often clear what a Berkeley tenant can do when their unit lacks heat or the heater is malfunctions.  Firstly, the Berkeley tenant should complain to their landlord or property manager, preferably in writing.  They should save all correspondence regarding the lack of heat as they will become evidence in the event that the Berkeley tenant is required to commence litigation.  The first complaint triggers the landlord’s duty to act quickly to restore or provide heat.  Secondly, the Berkeley tenant should document the problem.  They may take the following steps to document the lack of heat:

  • Take photographs and videos depicting the situation in their home;
  • Invite witnesses to the unit so they can experience the lack of heat in the home;
  • Conduct indoor moisture and temperature tests in every room lacking heat;
  • Inspect the unit for mold caused by the inoperable heat;
  • Document any adverse health effects they may suffer including hypothermia, high blood pressure, sleep disturbances, and rhinitis; or,
  • Ask a HVAC contractor to inspect the heating system and prepare a report documenting the heating system’s issues.

Thirdly, where the issue persists and the landlord ignores the tenants several complaints, the tenant can consider contacting their local code enforcement department and obtaining a notice of violation for the issue.  If the landlord still does not respond, the Berkeley tenant should consider pursuing more drastic measures.  As the California Supreme Court held decades ago in Green v. Superior Court, 10 Cal. 3d 616 (1974), landlords bear the primary responsibility for maintaining safe, clean, and habitable housing, including providing heat to Berkeley tenants.

Additionally, other measures are available to the Berkeley tenant to restore heat in their home.  This includes repairing and deducting and withholding rent.  Repairing and deducting occurs where the Berkeley tenant pays for repairs themselves and then deducts the cost of the repairs from their monthly rent. Alternatively, in the event the Berkeley tenant lacks money to repair and deduct, they may stop paying rent until the landlord makes repairs.  It is advised that they keep the money in an account as they may receive an eviction lawsuit for withholding the rent.  A Berkeley tenant’s decision to withhold full or partial rent should be regarded as a matter of last resort.  They should ensure that they have sufficient evidence to support their decision to withhold rent before doing so.

It is important to note that, as both measures are drastic, they have the potential to incite great landlord pushback, including an eviction lawsuit.  The lack of heat, however, is a defense in an eviction lawsuit.  De La Vara v. Municipal Court, (1979) 98 Cal. App. 3d 638, 641 (internal citations omitted) (“[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.”).

Are Portable or Space Heaters Permissible Heating Sources Under the Law? 

No.  No law permits landlords meet their duty to provide adequate heat to Berkeley tenants by simply providing portable or space heaters.  The heating system must be permanently attached and wired correctly in a safe manner.  However, provided the home’s electrical system is not dilapidated, a landlord may likely provide Berkeley tenants portable or space heaters as a temporary solution while making prompt and adequate repairs to an inoperable heating system.

For Berkeley tenants, the lack of heat is more than just an inconvenience — the lack of heat constitutes a health hazard, a financial burden, and a sign of their landlord’s systemic neglect.  Berkeley tenants facing these challenges often find themselves caught in a cold play.  Where a Berkeley tenant is regrettably forced to vacate their home due to the lack of heat for a sustained time, they will have suffered both a wrongful eviction and a constructive eviction, which entitles them to monetary damages.  After suffering a heating outage, Berkeley tenants should contact Astanehe Law to discuss their rights and potential representation.