Your home, while not perfect, has been your sanctuary for years.  You’ve paid your rent, you’ve taken care of the unit, despite its many imperfections.  You’ve even abstained from lodging complaints for its numerous habitability defects because the imperfections were largely de minimis and cosmetic, therefore you did not think it necessary to pester your irritable and inimical landlord with complaints.  None of the issues in your unit ever rose to the level sufficient justifying complaining.  At this point, a few of the habitability defects have become too severe.  They are no longer de minimis and you want to notify your landlord, in conformity the law, so that they make repairs and make your unit habitable.  Should your landlord fail to make repairs then, you intend to file a lawsuit in court.  At this point, you begin to wonder; How should I notify my landlord about habitability defects in my rental unit?

The law is clear, to assert a claim for breach of the warranty of habitability, one element the tenant must prove that they tendered, “notice…to the landlord within a reasonable time after the tenant discovered, or should have discovered the habitability defect.”  Quevedo v. Braga, (1977) 72 Cal. App. 3d Supp, 1, 7-8 (Overruled on other grounds by Knight v. Hallsthammar, (1981) 29 Cal. 3d 46, 53, 55) (emphasis added); Erlach v. Sierra Asset Servicing, LLC, (2014) 226 Cal. App. 4th 1281, 1298.  The implied warranty of habitability does not hold landlords accountable for defects of which they were unaware and which would not have been disclosed by a reasonable inspection.  Thus, the landlord’s actual or constructive notice of the alleged uninhabitable condition is an essential prerequisite to an actionable breach of warranty of habitability claim.  Peterson v. Sup. Ct. (Banque Paribas), (1995) 10 Cal. 4th 1185, 1205-1206.  But, what exactly constitutes notice here?

Notice may take many forms.  Notice may be actual or constructive.  Constructive notice is notice (of a habitability defect) arising by presumption of law from the existence of facts and circumstances that the landlord, or their agent, has a duty to take notice of.  Therefore, a landlord or property manager is presumed to know about a habitabitly defect despite never being informed about it directly.  For instance, if the landlord notices sewage water emerging from your rental unit during their morning walkthrough of the property, they are likely to have constructive notice of a sewage flood occurring inside your unit.  They cannot claim lack of notice because these details were open and available for them to see.  Ultimately, a landlord’s denial of direct, actual knowledge does not defeat notice where the facts and circumstances support a finding that they reasonably should have discovered the habitability defect.

Actual notice is a simpler concept.  Actual notice occurs where the tenant, or their agent, informs the landlord, or their agent, about a habitabitly defect in their unit.  Here, the landlord cannot argue they are not aware of the habitabitly defect since they have been directly informed about the issue.  They have a duty to respond by commencing repairs.

Actual notice may be oral or written.  Oral notice occurs where the tenant or their agent informs their landlord, or their agent, about a habitabitly defect using the spoken word.  Written notice may take several forms – letter, email, text message, fax, communication via computer or cellular phone program (application) or platforms, notice of violation issued by the government, repair estimate prepared by third party vendor, messages submitted through a tenant portal or property management application, written maintenance requests, third party inspection reports, photographs, videos, letters from tenant advocates or nonprofits, a letter from an attorney, a completed move-in inspection checklist, a written list of unresolved repairs accompanying a lease renewal, meeting minutes, correspondence copied to the landlord, and responses to tenant satisfaction surveys – and occurs where the tenant communicates information in recorded text that is either on paper or electronic.  These different methods serve the same purpose: making the landlord or their agent aware of the habitability defect requiring attention.

What matters most here is whether your landlord or their agent becomes informed about the habitability defect, rather than the particular form of the communication.  The only reason the form of communication becomes important is so that you can prove that the landlord had notice in the event you move forward with your intended lawsuit against them.  So, when deciding what notice to select when informing your landlord about a habitability defect, you are best served selecting notice that can show – to a judge and jury in court – the landlord, or their agent, knew about the habitability defect(s) at issue.

Repeated complaints and broken promises should not define your experience at home. When substantial habitability defects occur, you must ensure your landlord, or their agent has notice of them. Your complaints, photographs, inspection reports, and records of losses can help tell that story, and help you as you seek repairs to your home and, potentially, litigate your breach of the implied warranty of habitabitly claim (not making & attempting to charge you for repairs) in a court of law.