Sometimes, but it is risky. In California, a tenant's duty to pay rent depends on the landlord keeping the home livable. If your landlord sues to evict you for unpaid rent, you can defend yourself by proving a serious habitability problem, and the court can lower your rent to what the unit was actually worth. But if the court decides the problem wasn't serious enough, or you can't pay the reduced back rent by the court's short deadline, your landlord wins and you can lose your home. California law also gives tenants other options, and it's worth getting advice before you stop paying.
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Is it legal to withhold rent in California?
Under California law, a tenant who stops paying rent because of serious habitability problems can raise those problems as a defense if the landlord sues to evict (Green v. Superior Court (1974) 10 Cal.3d 616, 620; Code Civ. Proc. § 1174.2(a)).
The California Supreme Court held that a tenant's duty to pay rent is "mutually dependent" on the landlord keeping the home habitable. If the tenant proves the landlord broke that promise, the tenant "may demonstrate that his nonpayment of rent was justified and that no rent is in fact 'due and owing'" (Green v. Superior Court (1974) 10 Cal.3d 616, 635). The Legislature built this into the eviction process in Code of Civil Procedure § 1174.2.
The catch is that a judge decides, after the fact, whether the problem was serious enough and how much rent you actually owed. Until then, you're taking a risk.
What problems are serious enough to justify withholding rent?
The problem has to be a "substantial breach," which the law defines as the landlord's failure to meet building and housing code standards "which materially affect health and safety" (Code Civ. Proc. § 1174.2(c)).
The landlord doesn't have to keep your home in "perfect, aesthetically pleasing condition," but "bare living requirements" must be maintained (Green, 10 Cal.3d at 637). Minor code violations that don't affect habitability won't reduce your rent (Green, 10 Cal.3d at 638).
Problems that can qualify include no heat or hot water, broken plumbing, faulty wiring, a leaking roof, rodent or insect infestations, and mold or dampness that endangers your health (Cal. Civ. Code § 1941.1(a); Cal. Health & Safety Code § 17920.3). For the full list, see our guide on what to do if your San Diego landlord won't fix mold or other problems.
What happens if my landlord sues to evict me for not paying?
If you raise the landlord's failure to repair as a defense in an eviction case for unpaid rent, the court decides whether there was a substantial breach (Code Civ. Proc. § 1174.2(a)).
| If the court finds... | What happens |
|---|---|
| A substantial breach | The court sets the reasonable rental value of the unit in its unlivable condition. You keep your home and are treated as the winning party, as long as you pay that reduced back rent within the time the court sets, which can be no more than five days (a little longer if the judgment is served on you by mail). The court can also order repairs and limit your rent until they're done (Code Civ. Proc. §§ 1174.2(a), 1013(a)). |
| A breach so severe you owe nothing | The court should enter judgment for you (Green, 10 Cal.3d at 639). |
| No substantial breach | The landlord wins the eviction case and is treated as the winning party for any attorney's fees the lease or a statute allows (Code Civ. Proc. § 1174.2(b)). |
| A breach, but you don't pay the reduced rent on time | The landlord wins possession (Code Civ. Proc. § 1174.2(a), (b)). |
Helpful to know: if a housing inspector notified your landlord in writing and the problem still wasn't fixed 60 days later without good cause, the law creates a rebuttable presumption that the landlord breached its duty to keep your home habitable (Cal. Civ. Code § 1942.3(a)). You can still raise the defense without an inspection (Cal. Civ. Code § 1942.3(b)).
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What other options do I have besides withholding rent?
California law gives tenants other tools:
| Option | How it works |
|---|---|
| Repair and deduct | After notice to your landlord (written or oral) and a reasonable time to fix it (30 days is presumed reasonable), you can pay for the repair yourself and deduct it from rent, up to one month's rent, no more than twice in 12 months (Cal. Civ. Code § 1942(a), (b)). |
| Get an inspection | If a housing inspector gives your landlord written notice and the problem isn't fixed within 35 days without good cause, your landlord can't demand or collect rent, raise the rent, or serve a three-day notice to pay or quit. A landlord who does can owe your actual damages plus $100 to $5,000 (Cal. Civ. Code § 1942.4(a), (b)(1)). |
| Move out | If the landlord doesn't make repairs within a reasonable time after notice, you can move out instead and stop owing rent as of the date you leave (Cal. Civ. Code § 1942(a)). |
None of these options is available if the problem was caused by your own failure to meet your duties as a tenant, such as keeping your unit clean and sanitary and not damaging it (Cal. Civ. Code §§ 1942(c), 1942.4(a)(4), 1929, 1941.2).
Can my landlord retaliate if I withhold rent?
It depends. State law bars your landlord from evicting you, raising your rent, or cutting services within 180 days after you complain about repairs, but that protection applies only if you are "not in default" on your rent (Cal. Civ. Code § 1942.5(a)). If you're thinking about withholding rent, ask a lawyer how this condition applies to you.
How can I protect myself if I'm considering withholding rent?
- Tell your landlord about the problem. Written notice with a date gives you proof.
- Document everything. Take dated photos and videos and keep every message.
- Ask your local code enforcement office to inspect. An inspector's written notice is what triggers the 35-day and 60-day protections above.
- Set the rent money aside. If you win only a partial rent reduction, you'll have only a few days to pay the rest. A court can also order you to pay rent into court while the case is pending (Green, 10 Cal.3d at 636-637).
- Talk to a lawyer before you stop paying.
How long do I have to act?
Some of the key deadlines in a repair dispute are:
- 30 days after notice is presumed a reasonable time for repair and deduct (Cal. Civ. Code § 1942(b)).
- 35 days after an inspector's notice is served, rent protections under Cal. Civ. Code § 1942.4 can apply.
- 60 days after an inspector's notice, the eviction-defense presumption can arise (Cal. Civ. Code § 1942.3(a)).
- Five days or less is how long a court can give you to pay reduced back rent and keep your home, plus a few extra days if the judgment is served by mail (Code Civ. Proc. §§ 1174.2(a), 1013(a)).
- Four years is the general deadline for claims for breach of a written lease (Code Civ. Proc. § 337(a)).
Frequently asked questions
Can I withhold just part of my rent?
The court, not the tenant, decides how much rent was owed. If the court finds the problem justifies only a partial reduction, you keep your home only if you pay the portion of back rent the court says you owe (Green, 10 Cal.3d at 639; Code Civ. Proc. § 1174.2(a)).
Do I need a housing inspection before I withhold rent?
Not to raise the defense (Cal. Civ. Code § 1942.3(b)). But an inspection can help: an unfixed problem 60 days after an inspector's written notice creates a legal presumption in your favor (Cal. Civ. Code § 1942.3(a)).
What if the problem is only cosmetic?
Probably not. The warranty of habitability covers "bare living requirements," not a home in "perfect, aesthetically pleasing condition" (Green, 10 Cal.3d at 637), and minor code violations that don't affect habitability won't reduce your rent (Green, 10 Cal.3d at 638).
Will I owe my landlord's attorney's fees if I lose?
You might. If the court finds no substantial breach, the landlord is treated as the winning party for any attorney's fees the lease or a statute allows (Code Civ. Proc. § 1174.2(b)).
Do I need a lawyer?
If you're thinking about withholding rent, or your landlord has already served a notice or filed an eviction case, getting advice early can make the difference between keeping your home and losing it.