Q: May a tenant whose rent is being garnished repair and deduct?
I have a judgment against the owner of a rental property. The tenants has been served with notice of a rent garnishment. They claim that the property is in need of repairs which the owner has failed to remedy. May the tenant legally withhold funds to pay for the repairs?
A:
Disclaimer: The materials provided below are informational and should not be relied upon as legal advice.
If the tenant is entitled to repair and deduct, she/he may do so regardless of the garnishment in effect. Repair-and-deduct procedures apply in very limited circumstances as set forth in Section 1942 of the California Civil Code:
"1942. (a) If within a reasonable time after written or oral notice to the landlord or his agent, as defined in subdivision (a) of Section 1962, of dilapidations rendering the premises untenantable which the landlord ought to repair, the landlord neglects to do so, the tenant may repair the same himself where the cost of such repairs does not require an expenditure more than one month's rent of the premises and deduct the expenses of such repairs from the rent when due, or the tenant may vacate the premises, in which case the tenant shall be discharged from further payment of rent, or performance of
other conditions as of the date of vacating the premises. This remedy shall not be available to the tenant more than twice in any 12-month period.
"(b) For the purposes of this section, if a tenant acts to repair and deduct after the 30th day following notice, he is presumed to have acted after a reasonable time. The presumption established by this subdivision is a rebuttable resumption affecting the burden of producing evidence and shall not be construed to prevent a tenant from repairing and deducting after a shorter notice if all the circumstances require shorter notice.
"(c) The tenant's remedy under subdivision (a) shall not be available if the condition was caused by the violation of Section 1929 or 1941.2.
"(d) The remedy provided by this section is in addition to any other remedy provided by this chapter, the rental agreement, or other applicable statutory or common law......"
If you believe the landlord and tenant are colluding to avoid paying over the rent for satisfaction of your judgment, there is a remedy to apply for a receiver to be appointed for the property. This is a powerful remedy, but it would not be cost-beneficial unless the amount of rent at issue is large enough to warrant the costs of making court applications for receivership, posting bond, and paying the receiver's fees. You should consult your own attorney to protect your legal rights.
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