California's 40-year-old habitability law is failing California tenants

Many view California as a leader in tenant protections, but the state's primary law for litigating unsafe housing is obstructive and outdated. Enacted in 1985, California Civil Code Section 1942.4 relies on an enforcement model that predates modern standards of habitability and equity. As written, the statute confines tenants to a "notice and cure" loop that allows landlords to ignore dangerous conditions for years without facing legal consequences. It is time for California to update this 40-year-old statute to align with modern legal frameworks that prioritize tenant safety.

The failures of California Civil Code Section 1942.4

While Civil Code Section 1942.4 was designed to assist tenants, its structure effectively acts as a shield for negligent landlords. Under this 40-year-old framework, a tenant cannot even initiate a legal claim unless they satisfy several burdensome prerequisites. First, tenants must contact a local code-enforcement agency and schedule an inspection, a process that often takes weeks. Then, a claim only exists if the city issues a formal notice of violation and the landlord fails to remediate the issue within 35 days. If the landlord cures within the 35 days, there is no private right of action, meaning families who have suffered through years of habitability defects would have no claim under the statute.

This model is entirely reliant on public inspection officials and code-enforcement agencies, both of which have been criticized for administrative gatekeeping. For low-income and marginalized families, the requirement to navigate these agencies often poses a prohibitive barrier to securing necessary repairs.

Out of step with modern legal standards

California's reliance on this gatekeeping structure is increasingly an outlier. The Uniform Residential Landlord and Tenant Act (URLTA), approved by the American Bar Association, represents the modern standard for housing law. To date, 22 states have adopted versions of this uniform law, which allows for more direct claims without the bureaucratic hurdles found in California's outdated statute.

Unlike Section 1942.4, these modern frameworks presume that housing safety is an immediate right, allowing tenants to seek judicial relief sooner, rather than waiting for a government agency to grant them "permission" to sue.

Why court access and attorney fees matter

The structural differences in these laws directly affect where and how many claims can realistically be brought. For example, in the City of San Jose, a stronger local framework allows for more frequent and effective enforcement than in jurisdictions that strictly rely on state law.

Beyond that, access to justice is being systematically eroded. Landlords have increasingly been removing attorney-fee provisions from standard leases. Organizations such as the San Francisco Apartment Association and the California Association of Realtors have stripped these provisions from their forms because they know that without a clear path to recover legal costs, tenants face a significant barrier to enforcement. When state law also makes attorney fees difficult to trigger, it creates a "justice gap" where only those who can afford hourly rates can defend their right to safe housing.

Biological threats: The impacts of delay

These procedural hurdles result in prolonged exposure to conditions that threaten human health. For children, living with mold or pests creates "toxic stress" that physically changes brain development. Jack P. Shonkoff and Andrew S. Garner, "The lifelong effects of early childhood adversity and toxic stress," Pediatrics 129, no. 1 (2012): e232-46. These stressors make it harder to sleep, learn or stay focused (https://www.tobenerlaw.com/the-effects-of-poor-housing-conditions-on-cognitive-development-and-learning/). For seniors, a broken furnace or poor air quality can lead to life-threatening events like heart attacks or strokes.

A better model: San Jose and beyond

It is time that California aligns with 22 other states and local jurisdictions who have fixed these problems. Under the City of San Jose's Housing Code (Chapter 17.20), tenants can sue immediately without waiting for an inspector. Since the law specifically lists dozens of living conditions that count as violations, it is easier for non-experts and tenants to identify when the law is being broken.

Other states are also ahead of California. Alabama allows tenants to sue for damages and fees immediately and lists specific duties landlords must meet, like providing heat and working elevators. Florida makes the right to attorney fees "non-waivable," meaning a landlord can't strip tenants of legal representation through fine print in a lease. Texas presumes that just seven days is a reasonable time to fix a health threat, bypassing the need for government inspections entirely.

A call for legislative reform

California's habitability laws currently prioritize administrative process over tenant health and safety. To align our laws with modern science and standards set by 22 other states, the Legislature must reform California Civil Code Section 1942.4:

1. Eliminate the government prerequisite. Remove the requirement for an official city notice of violation. Tenants should have the right to enforce their lease the moment a health-threatening condition exists.

2. Abolish the 35-day safe harbor. Ensure landlords are held liable for long-term negligence, even if they perform a last-minute repair after an inspector finally arrives.

3. Incentivize private enforcement. To counter the removal of fee provisions in standard leases, the state must expand civil penalties and provide a non-waivable path to attorney fees to ensure all tenants have actual access to counsel.

California must move beyond its antiquated 1985 enforcement model that rewards delay. The Legislature has the responsibility to ensure that habitability standards are enforceable for every tenant, regardless of their ability to navigate government bureaucracy or pay for private counsel.