My friend came to me with a question: If the same tenant rents both units in his duplex, can he require the tenant to subscribe for its own water service, separate from the rent (similar to other utility bills)?
This is a good question. His rental management company told him that he had to provide water in multi-family dwellings when the water was served by a master-meter and no sub-meters were installed. This appears to be a reasonable assumption, but is it good law?
Disclaimer: I am not a lawyer. You should consult a licensed attorney regarding your personal matters. This article is provided “for your information” only and does not constitute legal advice.
Material Fact: While I am not a lawyer, I am a second year law student at the Kern County College of Law, and in that respect, I have an interest in the law as it pertains to Real Property and Landlord-Tenant relations.
If you find any problems with the analysis below, please email me the correction and text me at 610-360-9558 so that I may review the suggestion and update this page in a timely manner.
Obligations of the Landlord
Landlord obligations are codified in California Civil Code sections 1940 through 1954.1. Sections 1941 and 1942 divide the responsibilities for repair between the landlord and the tenant. Sections 1947 and 1947.3 regard the payment of rent. None of these sections assign an obligation to the landlord to pay for water service.
A house is not fit for tenants (‘untenantable’) if it does not have:
A water supply approved under applicable law that is under the control of the tenant, capable of producing hot and cold running water, or a system that is under the control of the landlord, that produces hot and cold running water, furnished to appropriate fixtures, and connected to a sewage disposal system approved under applicable law.
(Cal Civ Code § 1941.1 subd. (a)(3).)
The Civil Code makes the landlord responsible for making a leased residence habitable when the lease does not expressly disavow this responsability:
The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty–nine.
(Cal Civ Code § 1941.)
Water Service – in general
California Civil Code sections 1954.201 through 1954.219 address the issue of “Water Service.” The legislature specifically names two intents in writing the laws of this chapter in the code:
- “To encourage the conservation of water in multifamily residential rental buildings through means either within the landlord’s or the tenant’s control.” (Cal Civ Code § 1954.201.) And,
- “To establish that the practices involving the submetering of dwelling units for water service are just and reasonable, and include appropriate safeguards for both tenants and landlords.” (Cal Civ Code § 1954.201.)
The second element most clearly shows us the intent of the legislature when the landlord makes the tenant pay for water service: water service bills must be “just and reasonable.”(Cal Civ Code § 1954.201.)
This chapter of the code defines “water service” to include “any charges, whether presented for payment on local water purveyor bills, tax bills, or bills from other entities, related to water treatment, distribution, or usage, including, but not limited to, water, sewer, stormwater, and flood control.” (Cal Civ Code § 1954.202.)
In this chapter, we see that the landlord of a multi-unit residence (having two to four units) may charge a tenant for water provided that it is “just and reasonable.” (Cal Civ Code § 1954.201.) The legislature finds it unjust or unreasonable when the tenant pays for water service that is not under the tenants “exclusive control and possession.” (Cal Civ Code § 1954.203) It asserts this by requiring submeters to measure “only water that is supplied for the exclusive use of the particular dwelling unit, and only to an area within the exclusive possession and control of the tenant of the dwelling unit.” (Cal Civ Code § 1954.203)
This chapter assumes that the landlord will receive the bill for water service and divide the bill among tenants using the submeter readings. In Civil Code section 1954.204, it requires the landlord to disclose to the tenant that he will receive bills for water service separately from bills for rent. The code also says “a landlord shall only bill a tenant for the following water service: . . .” (Cal Civ Code § 1954.205), but this implies that the billing is presumed to be fair and just when the landlord is not the one who is issuing the bill or when a submeter is not necessary to determine which portion of the water service is under the “exclusive control and possession” of the tenant.
Discontinuing Service with Malicious Intent
Under California law, the landlord may not discontinue utilities with the intent of evicting a tenant. (Cal Civ Code § 789.3.):
A landlord shall not with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his residence willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.
(Cal Civ Code § 789.3.)
Under Civil Code section 789.3, a landlord may not terminate service, but nothing requires the landlord to provide service. This section prohibits landlords from using wrongful methods to “terminate the occupancy.” When a landlord fails to provide water service at the start of a contract with the intent that the tenant become solely responsible for their own water service, this section does not apply.
I found no statutes that required landlords to provide water, electricity, gas or other services as an included feature of a lease agreement for a residence.
In 1937, the Supreme Court of Calfornia put it very simply:
At common law there is no duty or obligation on the part of the landlord to furnish water to his tenants. ([Citation].) . . . Neither can he be held liable for the bills of his tenant. ([Citation].)
(Page v. City of Santa Rosa (1937) 8 Cal.2d 311, 315.)
Absent a statute that imposes liability, a landlord does not have to pay for the water that is delivered to a tenant. (Page v. City of Santa Rosa, supra, 8 Cal.2d 311, 315.)
A landlord may create a duty to supply water by the lease agreement. In Jones v. Kelly (1929) 208 Cal. 251, the court asks whether a landlord that cuts off water to a tenant is liable for a tort when the promise of water is created by a contract. Tenants only had rights to water because the landlord specifically promised water in the contract. (Id. at 254.) In this case, the court decides that the tenant may sue for a tort, even though the right to water exists only because of the contract, because under tort law, no person has the right to intentionally cause harm to another. (Id. at 255.)
A landlord may require the tenant to pay water service bills.
The question is, when a tenant rents all units in a multi-unit dwelling, must the landlord pay for the water service?
Under California law, it does not appear that the landlord is ever required to pay for service. But, when the landlord does attempt to split the service among several tenants, the landlord must use submeters so that the tenant only pays a fair-share of the water service and the landlord must provide numerous disclaimers to make the tenant aware of how water services will be billed.
The primary objective of the California Civil Code’s regulations on water service is to ensure “just and reasonable” billing. It naturally extends that when the landlord can show that a tenant has “exclusive control and possession” of the water service, the landlord may require the tenant to pay for the water service in full, even if the tenant occupies a multi-unit dwelling.
A word about management company’s
A rental management company will make policies and educate its people based on the scenarios that are most likely and most frequent. Because it is unusual to rent an entire multi-unit property to a single tenant, it is likely that the rental management company will be under the false impression that a landlord who does not have submeters must pay for the water service as a condition of the rental agreement. This policy effectively protects the management company from accidental mis-steps that put the landlord on the wrong side of the law.
Although this is likely to be the policy that management company’s cite over the phone, I can find no support in the case law or the statutes that require a multi-unit owner to pay for water service for tenants on the property.