Topic No. 353: Failure to Repair and Maintain Petitions
A tenant may petition for the deferral of any rent increase (except a capital improvement passthrough, utility passthrough or a bond measure passthrough) if the landlord has failed to perform requested repairs, replacement or maintenance as required by state and/or local law. If the petition is granted, the proposed rent increase will be deferred or postponed until the requested repairs are made. The tenant's anniversary date is not affected by the deferral of the increase. The petition must be filed no later than 60 days following the tenant's receipt of the rent increase notice.
Please note that the Rent Board does not have authority to order the landlord to perform the repairs; only a city inspector can do that.
In order to have a rent increase deferred due to a failure to repair, a tenant must prove that the landlord knew that the work needed to be done and was required by law. Tenants should notify their landlord of needed repairs in writing, if possible, or follow oral notification with a letter confirming the request. Additionally, the tenant should contact the Department of Building Inspection or other appropriate city agency to request an inspection for code violations. The "Notice of Violation," if one is issued, provides proof that there is a violation of law.
Tenants should pay the disputed rent increase until the Administrative Law Judge's decision is issued. If the Administrative Law Judge decides that the landlord is not entitled to the increase because of the repair problems, the landlord will be ordered to refund the amount of the rent increase paid since the effective date. The Administrative Law Judge's decision will itemize the repairs that the landlord needs to make in order to reinstate the rent increase. The petition will not be granted if the repairs were completed before the effective date of the rent increase.
Although there are additional remedies under state law for a landlord's failure to repair (such as rent withholding or "repair and deduct"), tenants should be aware that these remedies pose risks and can lead to an eviction action. A tenant should obtain legal advice before deciding to withhold rent under these state law provisions.
Depending on the nature of the code violation, the tenant may combine a Failure to Repair and Maintain claim with a claim based on Decreased Housing Services, which may result in a base rent reduction as well as deferral of a proposed rent increase. The tenant can also raise the landlord's failure to repair and maintain as a defense to a landlord's rent increase petition based on increased operating and maintenance expenses or comparable rents.
For instructions on preparing a Tenant Petition, please see Fact Sheet 6, "Tenant Petitions." For more information on repair issues, refer to Fact Sheet 2, "Repair Issues." To receive a copy of the Tenant Petition form and/or Fact Sheets 2 and 6, you can fax it to yourself through our Fax Back system by calling 252-4660 or visit our website at www.sfgov.org/rentboard. The forms and Fact Sheets are also available at our office.