Fairchild v. Park, 109 Cal. Rptr. 2d 442 (2001)

Citation: Fairchild v. Park, 109 Cal. Rptr. 2d 442 (2001)
Parent Document: Fairchild v. Park, 109 Cal. Rptr. 2d 442 (2001)
Jurisdiction: California (state)
Effective Date: 2001-07-19
Original Source: https://www.courtlistener.com/opinion/2256171/fairchild-v-park/ ↗

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The majority cite an unlawful detainer case, Green v. Superior Court, supra, 10 Cal.3d at page 619, for the proposition that there is “a common law implied warranty of habitability in residential leases in California . . . .’’In general, I agree that a residential tenant who defeats an unlawful detainer action by asserting the landlord’s breach of the implied covenant of habitability may, in addition to remaining in possession of the premises, recover attorney fees under the lease agreement, provided the landlord’s breach has canceled the obligation to pay rent. “[A] landlord’s breach of a warranty of habitability directly relates to whether any rent is ‘due and owing’ by the tenant; hence such breach may be determinative of whether the landlord or tenant is entitled to possession of the premises upon nonpayment of rent. Accordingly, the tenant may properly raise the issue of warranty of habitability in an unlawful detainer action.” (Green v. Superior Court, supra, 10 Cal.3d at p. 620.) “If the tenant can prove such a breach by the landlord, he may demonstrate that his nonpayment of rent was justified and that no rent is in fact ‘due and owing’ to the landlord.” (Green v. Superior Court, supra, 10 Cal.3d at p. 635.)

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