Yes, a tenant may have claims against their landlord, such as fraud and misrepresentation, especially if the landlord represented to the tenant that the unit was legal. But if as the tenant you knew that the apartment is an illegal unit, this may undermine your claim for fraud or misrepresentation, but you will still likely have other viable claims against the landlord.

Illegal units typically contain many habitability issues and are often rented by elderly, disabled, or low-income tenants. Rent controlled jurisdictions recognize that these units deserve special protection. A tenant who lives in an illegal unit may think that they do not have any rights, but illegal units are covered under local rent control ordinances in most cases.

If a tenant resides in an in-law apartment, a backyard cottage, a garage apartment, a granny unit, a basement, or an attic, the unit may be illegal. Other signs that a unit is illegal are that the residence does not have its own address, it does not have its own gas and electric meter, does not have its own mailbox, the ceilings are unusually low, the electrical outlets are ungrounded, or some of the rooms lack windows.

Landlords in California are not entitled to collect or request any rent as long as the apartment is termed illegal. California law does not reward a landlord who has an illegal structure, and it also punishes the landlord by declaring the contract leasing that structure “void.”

If you decide to sue your landlord for renting an illegal apartment to you in California, have it in mind that not all judges will award a refund of rent paid, but you are most likely to win a claim for the return of your security deposit. However, note that as a tenant in an illegal unit, you may have claims for violation of the rent ordinance, breach of the warranty of habitability, breach of quiet enjoyment, wrongful eviction, constructive eviction, and others.

Some of the damages a tenant may seek to recover in a lawsuit against their landlord are rent that was previously paid to the landlord, out-of-pocket expenses, property damage, payment for emotional suffering, damages for physical harm, treble damages, punitive damages, and future damages.

Since each cause of action requires the tenant to prove specific elements to recover damages, and each cause of action has a specific statute of limitations (i.e., a time limit for which a lawsuit must be filed or preserved), you are advised to seek the expertise of an experienced tenant rights attorney.

Note that it is very unlikely you’ll be able to recoup the rent you’ve already paid, but yes you may be entitled to sue your landlord if they misrepresented the apartment when they rented it to you. An apartment is also considered illegal when it is being used in a way that is in conflict with its building’s certificate of occupancy.

7 Landlord – Tenant Laws in California

Note that both landlords and tenants in California are meant to be able to deal with many legal questions and problems without a lawyer, once they understand the basics of state law. This overview of key landlord – tenant laws in California will point you in the right direction.

  1. Required Landlord Disclosures in California

Under state law, California landlords are mandated to disclose specific information to tenants (usually in the lease or rental agreement), such as whether the gas or electricity in the tenant’s rental also serves other areas and information about toxic mould if the landlord knows that mould on the property exceeds exposure limits or poses a threat to the tenant’s health.

  1. California Security Deposit Limit and Return

Note that California state law limits how much a landlord can charge for a security deposit (usually two months’ rent, but after January 1, 2021, no more than one month’s rent when the landlord is renting to a service member), when it is expected be returned (within 21 days after a tenant moves), and sets other restrictions on deposits.

  1. California Termination and Eviction Rules

State laws explicitly state when and how a landlord may terminate a tenancy. For instance, a landlord may give a California tenant who has been assigning or subletting without permission an unconditional quit notice that gives the tenant about three days to move out before the landlord can file for eviction.

  1. Small Claims Lawsuits in California

Have it in mind that tenants can sue landlords in small claims court for the return of their deposit, up to a dollar amount of $10,000. Also note that cities and counties often pass local ordinances, such as rent control rules, health and safety standards, noise and nuisance regulations, and anti-discrimination rules that affect landlords and tenants. Many municipalities have websites —just search for the name of a particular city in California and then do a search when you’re on the site.

  1. California Late Fees and Other Rent Rules

California state law regulates several rent-related issues, including late and bounced-check fees, the amount of notice landlords are expected to give tenants to raise the rent, and how much time (three days in California) a tenant has to pay rent or move before a landlord can file for eviction.

  1. Tenant Rights to Withhold Rent in California

Tenants in California may withhold rent, move out without notice, sue the landlord, call state or local health inspectors, or exercise the right to “repair and deduct” if a landlord fails to take care of important repairs, such as a broken heater.

  1. Federal Landlord – Tenant Laws and Regulations

Even though most landlords and tenants will mainly be concerned with state law in California, several federal laws come into play. Congress has enacted laws, and federal agencies, such as the U.S. Department of Housing and Urban Development (HUD) and the U.S. Environmental Protection Agency (EPA), have adopted regulations, covering discrimination and landlord responsibilities to disclose environmental health hazards, such as lead-based paint.

The U.S. Code is the starting place for most federal statutory research. It consists of 54 separate numbered titles, each covering a specific subject matter. Most federal regulations are published in the Code of Federal Regulations (“CFR”).

Conclusion

Typically, an apartment is considered illegal when it is being used in a way that is in conflict with its building’s certificate of occupancy. Under California law, contracts that are entered into for an unlawful purpose—such as a lease to rent an illegal unit—are void, and the parties are not obligated to perform under that contract.

This means that when a unit does not have a Certificate of Occupancy, the landlord is not entitled to collect or request rent from their tenant. However, note that you may not be able to recoup the rent you’ve already paid, but you may be entitled to sue your landlord if they misrepresented the apartment when they rented it to you.

Solomon. O'Chucks
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