Usually the defendant carries the burden of proof with respect to an affirmative defense. In eviction trials, one of the most common affirmative defenses to the non-payment of rent our Los Angeles Eviction Attorneys face, is the landlord’s breach of the implied warranty of habitability. Under California law, a tenant can shift the burden of proof for habitability to the landlord if the four requirements under Cal. Civ. Code § 1942.3(a) are met. The result is that the tenant now benefits from not having the burden of proof and the presumption remains in tenant’s favor until the landlord can prove in trial, that the premises at issue was in fact habitable.
The tenant only benefits from this burden shifter if all four of the following are met:
• The dwelling unit “substantially lacks” any of the CC § 1941.1 “affirmative standard characteristics” is deemed “substandard” pursuant to Health & Saf.C. § 17920.3 or contains “lead hazards” as defined in Health & Saf.C. § 17920.10 (CC § 1942.3(a)(1));
• A government employee responsible for enforcing housing laws, after inspecting the unit, has given written notice to the landlord (or his or her agent) of the landlord’s obligation to repair the substandard or unsafe conditions or abate the nuisance (CC § 1942.3(a)(2));
• The conditions still exist 60 days after issuance of the above official notice to the landlord and the delay in rectifying the conditions is “without good cause” (CC § 1942.3(a)(3));
• The conditions were not caused by the tenant’s act or omission (in violation of CC §§ 1929 or 1941.2—tenant’s duty to repair own damage and maintain premises in normal course) (CC § 1942.3(a)(4)). [See CC § 1942.3(b)—presumption does not arise unless all § 1942.3(a) conditions are proven]
If the tenant cannot demonstrate all four elements listed above, then the burden of proof remains with the tenant in proving that the premises at issue is uninhabitable. Thus, at trial, landlords should be prepared to demonstrate that substandard conditions, if any, were caused by the tenant and if any inspection reports, whether from the city or county, are issued, then those conditions called out by the reports should be abated within 60 days of issuance of the report.