Attorney Fees for Breach of the Implied Warranty of Habitability

Are attorney fees available for a tenant suing a landlord for breach of implied warranty of habitability, even if there was an oral rental agreement (no attorney fee provision), and in a separate civil action apart from an unlawful detainer proceeding?

 The following is from a 2003 case in Monterey, CA which provides some insight into the types of causes of action that can be asserted against a landlord for breach of the warranty of habitability:

“On March 7, 2002, Dino Jaramillo and Kim Jaramillo (the Jaramillos) filed a complaint against JH Real Estate Partners, Inc., JH Management Co., LLC, and United Dominion, later corrected to read United Dominion Realty, L.P. They alleged causes of action for general negligence, intentional tort, premises liability, breach of contract, breach of the implied warranty of habitability, and unfair business practices and false and deceptive advertising.

In regard to general negligence, the Jaramillos alleged in their complaint that beginning on October 5, 2000 and continuing thereafter, the defendants “negligently inspected, maintained or repaired the subject premises resulting in water incursion and dangerous and unhealthful levels of moisture in walls and ceilings, mold, mold mycotoxins, airborne mold spores, fungus, and bacteria in the rental unit occupied by plaintiffs.” The Jaramillos further alleged that this dangerous condition and its negligent cause was not discovered, and could not have been discovered in the exercise of reasonable diligence, until January 2002. In regard to intentional tort, the Jaramillos alleged in their complaint that beginning on October 5, 2000 and continuing thereafter, defendants intentionally caused damage to them by failing and refusing to “provide a clean, sanitary and habitable living space for plaintiffs despite defendants’ knowledge that defendants’ negligence as described herein above had caused plaintiff’s [sic] rental unit to be in an unsafe, unsanitary and dangerous condition due to the presence of mold, mold spores, mycotoxins, fungus, and bacteria.” They further alleged that during “about January 2002, defendants improperly caused one or more three-day notices to pay rent or quit to be served on plaintiffs in retaliation for plaintiffs’ filing a report with the Monterey County Health Department concerning the unsanitary living conditions in their unit, intentionally causing plaintiffs severe emotional distress.” In regard to premises liability, the Jaramillos stated in their complaint that they had “suffered physical injury and severe emotional distress as a result of unhealthful and unsanitary conditions” in their rental unit. They also averred that, about April 2001, Kim Jaramillo slipped and fell on a concrete ramp located on the premises and she injured her knee, and the injury was proximately caused by the defendants’ failure to inspect and to repair or maintain the ramp. In regard to the breach of the implied warranty of habitability, the Jaramillos alleged that defendants failed to provide and maintain a clean, sanitary and habitable rental unit. In regard to violation of Business and Professions Code sections17200and17500et seq., the Jaramillos alleged that defendants’ actions constituted unfair business practices. They further averred that defendants “falsely advertised and represented that rental units at the subject premises were in a clean and sanitary condition, complied with all applicable health, safety and building laws and ordinances, and were safe and were fit for human habitation. . . .”

If you sue a landlord for claims similar to the ones set forth above, Civil Code section 1942.4(b) which deals with the breach of the implied warranty of habitability states as follows:

(1) A landlord who violates this section is liable to the

tenant or lessee for the actual damages sustained by the tenant or

lessee and special damages of not less than one hundred dollars

($100) and not more than five thousand dollars ($5,000).

(2) The prevailing party shall be entitled to recovery of

reasonable attorney’s fees and costs of the suit in an amount fixed

by the court.

Thus, attorneys’ fees are recoverable if you prevail on your habitability claims