The tenant s guide to eviction defense
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THE TENANT’S GUIDE TO EVICTION DEFENSE . OVERVIEW. This section of the training will give you information on defenses available to tenants in eviction cases and review the law on which the most common defenses are based. UNLAWFUL DETAINER – SUMMARY PROCEDURE. Summary procedure Very technical

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OVERVIEW

This section of the training will give you information on defenses available to tenants in eviction cases and review the law on which the most common defenses are based.


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UNLAWFUL DETAINER – SUMMARY PROCEDURE

  • Summary procedure

  • Very technical

  • Five day response period

  • No cross-complaints

  • Priority on the calendar

  • Speedy trial setting

  • Short discovery periods

  • Strict construction of rules by court

  • Public policy – avoid self-help


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WHAT THE LANDLORD WANTS

  • Possession primarily

  • Rent/damages, costs, attorney fees


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WHAT THE TENANT WANTS

  • Their day in court – due process

  • Landlord to meet strict requirements

  • Maintain possession or

  • Time to relocate


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BACKGROUND ON SIGNFICANT TENANTS’ RIGHTS/DEFENSES

Significant rights include:

  • A right to a habitable unit;

  • A right to exercise the rights under law without retaliation by the landlord;

  • A right to be free from discrimination in the terms and conditions of rental.


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WARRANTY OF HABITABILITY

  • A rental unit must be fit to live in.

  • Warranty includes unit and common areas.


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DEFINITION OF HABITABILITY

Habitable means:

  • fit for occupancy by human beings;

  • in substantial compliance with state and local building codes that materially affect the tenant’s health and safety;

  • in compliance with provisions of the Civil Code and Health and Safety Code.


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RESPONSIBILITY FOR REPAIRS

Landlord’s responsibility

  • Unit must be habitable when at the beginning of the tenancy.

  • Unit must be habitable during tenancy.


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IMPLIED WARRANTY OF HABITABILITY

Green v. Superior Court, 10 Cal.3d 616 (1974)

  • Residential leases and rental agreements include an implied warranty of habitability.

  • Dependent covenants – obligation to pay rent and obligation to repair.

  • Common law – duty to repair independent of obligation to pay rent.


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BASIS FOR DECISION

  • No relationship to social and legal realities of landlord/tenant relationship today;

  • Contract for a place to live, not land;

  • Scarcity of affordable housing;

  • Lack of bargaining power;

  • Inability to do major repairs or inspections.


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Uninhabitable conditions

Unit is considered uninhabitable if it

substantially lacks any of the following:

  • Effective weatherproofing and weather protection;

  • Plumbing in good condition;

  • Hot and cold running water;

  • Sewage disposal system.


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UNINHABITABLE CONDITIONS (CONT.)

  • Gas facilities in good working order;

  • Heating facilities in good working order;

  • Electrical system including lighting, wiring and equipment in good working order;

  • Clean and sanitary buildings and grounds free from trash, debris, rubbish, garbage, rodents and vermin;

  • Adequate trash receptacles in good repair.


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UNINHABITABLE CONDITIONS (CONT.)

  • Deadbolt locks on entry doors and locks or security devices on windows;

  • Additional requirements Health and Safety Code;

  • Lead paint;

  • Mold and mildew.


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TENANT’S RESPONSIBILITY

  • Keep premises as clean and sanitary as conditions permit;

  • Operate gas, electrical and plumbing fixtures properly;

  • Dispose of trash and garbage properly;

  • No destruction of property by tenant, family or friends;

  • Use of the premises as a place to live and rooms for intended purposes.


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NO OBLIGATION TO REPAIR

  • If tenant fails to do these things and

  • has substantially caused an unlivable condition and/or;

  • has substantially interfered with the landlord’s ability to do repairs.


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TENANT REMEDIES TO GET REPAIRS DONE

  • Must give notice - oral or written;

  • Written is preferable;

  • Must wait a reasonable time;

  • Must be a condition that affects health and safety;

  • Series of escalating remedies available.


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REPAIR AND DEDUCT

  • Tenant gives notice;

  • Tenant waits a reasonable time;

  • Tenant pays for repairs;

  • Must be substandard condition that affects health and safety;

  • Can be used two times/year, one month’s rent each time;

  • Tenant is not the cause of the problem.


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CONTACT CODE ENFORCEMENT

ADVANTAGES

  • Neutral party

  • Professional evaluation of code violations

  • Good trial evidence

  • Powerful remedy


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CONTACT CODE ENFORCEMENT (Cont.)

DISADVANTAGES

  • Weak and lax enforcement

  • Dislocation of tenants

  • Retaliation and eviction


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RENT WITHHOLDING

Tenant can withhold

  • for conditions that seriously affect health or safety;

  • If notice has been given and no repairs done;

  • Examples of serious conditions;

  • Rent into bank account.

  • Eviction will inevitably result!


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RETALIATION

No adverse action against

tenant including eviction for:

  • exercising certain enumerated rights or

  • for organizing activities or

  • for peaceful exercise of rights under law.

  • Available as an affirmative defense;

  • Basis for damages.


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RETALIATION DEFENSE – Civil Code Section 1942.5(a)

Limited statutory defense

Includes

  • complaints to owner or agent, governmental agency

  • code enforcement citation

  • lawsuit regarding substandard conditions


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RETALIATION (CONT.)

Civil Code Section 1942.5 (a)

  • 180 days protection from latest of series of acts of retaliation;

  • requires tenant to be current in rent.

  • Burden of proof.


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RETALIATION (CONT.)

Civil Code Section 1942.5 (c)

  • Broader protection

  • Includes tenant organizing, rent strikes

  • Peaceful exercise of rights

  • Burden of proof.


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COMMON LAW DEFENSE

  • Barela v. Superior Court, 30 Cal.3d 244 (1981)

  • Significance of decision


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RETALIATION (CONT.)

  • Requires careful interview of client on events prior to service of notice.

  • Reason based on retaliation won’t be stated by owner or agent.


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DISCRIMINATION

  • Available as a defense if reason for eviction is discriminatory intent or effect.

  • Illegal to discriminate under federal and state law based on specific classification or protected groups.

  • Federal law – race, color, religion, sex, national origin, familial status, disability.


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DISCRIMINATION (CONT.)

  • State law – federal law categories and additional classifications including marital status, ancestry, source of income, sexual orientation, arbitrary discrimination

  • Both federal and state laws require reasonable accommodation.


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THE DISCRIMINATION DEFENSE

  • Must belong to protected group.

  • Eviction must be based on membership in protected group.


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DISCRIMINATION (CONT.)

  • Prove by direct evidence of intent or circumstantial evidence.

  • Requires careful interview to get critical facts.

  • Available as an affirmative defense.

  • Basis for damages.


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TERMINATION OF TENANCY

  • Usually the first step in the eviction process

  • Must be in writing

  • Exceptions

    • End of lease

    • Termination of employee


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GENERAL REQUIREMENTS

  • Must name the tenant

  • Must include a description of the property

  • Must include unequivocal demand for production

  • Should include a request for forfeiture

  • Notice period must expire before filing


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TYPES OF NOTICES

  • Three Day Notice to Pay Rent or Quit

  • Three Day Notice to Perform or Quit

  • Three Day Notice to Quit

  • Thirty Day notice to Terminate Tenancy

  • Sixty Day Notice to Terminate Tenancy

  • Ninety Day Notice to Terminate Tenancy


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THREE DAY NOTICE TO PAY RENT OR QUIT

  • Cannot be served until the day after the rent is due;

  • Must accurately state the amount of rent due and the period for which it is due;

  • Should include rent only;

  • Must be in the alternative;

  • Must include locations, days and hours to pay;

  • Must include information if alternative payment arrangements can be made;

  • Rent for only one year;

  • Should declare a forfeiture;

  • Must include unequivocal demand for possession.


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SERVICE OF THREE DAY NOTICE TO PAY RENT OR QUIT

  • Personal service on all tenants

  • Substituted service

  • Nail and mail

  • Same service requirements for Three Day Notice to Perform or Quit and Three Day Notice to Quit


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COMMON TENANT DEFENSES

  • Premature filing of the Complaint

  • Defective service

  • Defects on the face of the notice

  • Habitability

  • Tender

  • Waiver


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THREE DAY NOTICE TO PERFORM OR QUIT

  • Must accurately state the breach;

  • Must be in the alternative;

  • Cannot be for a minor breach;

  • Should declare a forfeiture;

  • Must include an unequivocal demand for possession;

  • Must be breach of an express covenant.


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COMMON TENANT DEFENSES

  • Defective service of the notice;

  • Failure to state details with sufficient particularity;

  • Must be in the alternative;

  • Minor problem;

  • Waiver;

  • Denial of allegations.


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THREE DAY NOTICE TO QUIT

  • Serious breach that cannot be cured;

  • Includes waste/nuisance, illegal drug sales, subletting and assignment if prohibited by the rental agreement/lease;

  • Not required to be in the alternative;

  • Breach must be described with sufficient particularity;

  • Should declare a forfeiture;

  • Must include an unequivocal demand for possession.


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COMMON TENANT DEFENSES

  • Defective service of notice

  • Minor problem

  • Should have been in the alternative

  • Denial of allegations


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THREE DAY NOTICE TO QUIT - FORECLOSURE

  • Served on owner whose property has been sold at trustee’s sale


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COMMON TENANT DEFENSES

  • Defective service of notice

  • Can require new owner to show that title has been perfected

  • Fraud in transfer of title – Ascuncion motion


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THIRTY DAY NOTICE TO TERMINATE TENANCY

  • Done to terminate month to month tenancy of less than one year;

  • Month to month rental agreement;

  • Must include unequivocal demand for possession;

  • No need to state reason (exception – rent control jurisdiction).


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SERVICE OF NOTICE

  • Personal service

  • Substituted service

  • Nail and mail

  • Certified or registered mail


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TENANT DEFENSES

  • Defective service

  • Premature filing of Complaint

  • Waiver

  • Retaliation

  • Discrimination


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SIXTY DAY NOTICE OF TERMINATION OF TENANCY

  • Done to terminate month to month tenancy of a year or more.

  • Month to month rental agreement.

  • Must include unequivocal demand for possession.

  • Tenant in property not protected by PTFA.


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SERVICE OF NOTICE

  • Personal service

  • Substituted service

  • Nail and mail

  • Certified or registered mail


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NINETY DAY NOTICE

  • Section Eight Housing Choice voucher program- Wasatch Property Management v. Degrate, 35 Cal.4th 1111 (2005).

  • Tenant in foreclosed property subject to PTFA.


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SERVICE OF SUMMONS AND COMPLAINT

  • Personal

  • Substituted

  • Posting


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PROBLEMS WITH SERVICE

  • Sewer service

  • Defective service remedies – motion to quash, abuse of process lawsuit

  • Courtesy letter as remedy


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INITIAL CLIENT INTERVIEW

Inquire about:

  • Date of service of Summons and Complaint

  • Defendants

  • Manner of service as to all defendants

  • Documents served on the defendants

  • Type of tenancy


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CASES TO REFER

  • Subsidized housing

  • Mobilehome owners

  • Foreclosure – fraud claims


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PREJUDGMENT CLAIM OF RIGHT TO POSSESSION

  • Used by owners to determine who is occupying property

  • Unnamed defendant must file within 10 days of service, answer 5 days later

  • Disadvantage – credit consequences


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A QUICK LESSON IN COUNTING

  • Must file within 5 days of service including weekends

  • Holiday exception

  • Why counting is important

  • File early if any doubt

  • Consequences of a mistake


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NEXT STEPS

  • Review Complaint allegations

  • Review prayer

  • Review possible defenses


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WHAT IS NOT A DEFENSE

  • Loss of income

  • Receipt of welfare

  • Inability to pay rent

  • No place to move

  • Lots of children

  • Disability unrelated to reason for eviction


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JUDICIAL COUNCIL ANSWER-UNLAWFUL DETAINER

  • All answering defendants can use one Answer form; each defendant completes separate fee waiver forms.

  • General denial vs. paragraph by paragraph denial, for example, paragraphs 7 & 8 for defective service.

  • Deny all paragraphs containing untrue statements or statements with which the defendant disagrees.

  • Denial on information or belief.


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AFFIRMATIVE DEFENSES

  • Inform the Court why the defendant should not be evicted;

  • Need not be detailed;

  • Enough information to give notice to the plaintiff.


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BEACH OF THE IMPLIED WARRANTY OF HABITABILITY

  • Page 1, 2b – deny paragraphs 10 and 11

  • Page 1, box 3a must be checked

  • Page 2, box 3j to add facts or

  • Use an attachment page – see 3 j (1) or (2) and paragraph 6

  • Must address defects, notice, failure to repair


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BREACH OF THE IMPLIED WARRANTY OF HABITABILITY (CONT.)

  • Add language on page 2, paragraph 4b, for example, “The premises are not habitable.”

  • Check box on page 2, paragraph 5 d.


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REPAIR AND DEDUCT

  • Page one, box 2 a or 2 b –deny paragraphs 10 and 11- must be checked.

  • Page one, box 3 b must be checked.

  • Must have complied with statutory requirements.

  • Plaintiff must have failed to give credit.

  • Page 2, box 3j to add facts or

  • Use an attachment page – see 3 j (1) or (2) and paragraph 6.

  • Must address defects, notice, failure to repair, defendant’s repair of defects.


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REPAIR AND DEDUCT (CONT.)

  • May add language on page 2, paragraph 4b.

  • May check box on page 2, paragraph 5 d.


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TENDER OF RENT

  • Requires tender of full amount

  • In form generally accepted by owner

  • Within the three day notice period

  • Page one, box 2 a or 2 b –deny paragraphs 10 and 11- must be checked.

  • Page one, box 3 c must be checked.

  • Additional facts on page 2, paragraph 3j


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LANDLORD WAIVED NOTICE

  • Repeated acceptance of late rent

  • Agreement to accept late rent

  • Page one, box 2 a or 2 b –deny paragraphs 10 and 11- must be checked.

  • Page one, box 3 d must be checked.

  • Additional facts on page two, paragraph 3j.


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RETALIATION DEFENSE

  • Page one, box 3 e must be checked.

  • Additional facts can be added on page 2, paragraph 3j.

  • Sufficient to state that the reason the plaintiff is evicting the tenant is, for example, “Defendant complained to code enforcement.”


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.DISCRIMINATION DEFENSE

  • Page one, box 3 f must be checked.

  • Additional facts can be added on page 2, paragraph 3j.

  • Sufficient to state that the plaintiff is evicting defendant because he is (state protected group). If necessary, add that plaintiff has failed and refused to make reasonable accommodation for defendant’s disability.


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ACCEPTANCE OF RENT

  • Page one, box 3 h must be checked.

  • Additional facts can be added on page 2, paragraph 3j.

  • Examples include acceptance of rent for a period after the Thirty or Sixty Day notice expired.


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OTHER AFFIRMATIVE DEFENSES

  • Page one, box 3 i must be checked.

  • Additional facts can be added on page 2, paragraph 3j.

  • Any defenses that don’t fit anywhere else can be added. For example, the plaintiff breached the covenant of quiet enjoyment by repeatedly entering defendant’s residence without permission.

  • Advisable to a catchall phrase such as “The Complaint fails to state a cause of action.”


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TENANTS WHO HAVE DEFAULT JUDGMENTS

  • Setting aside requires showing of mistake, inadvertence, excusable neglect.

  • Numerous pleadings necessary.

  • Interview to establish sufficiency of reason.


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PRE-TRIAL DISCOVERY

  • Judicial Council Interrogatories.

  • Judicial Council Requests for Admission.

  • Depositions.

  • Timelines.


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SUMMARY JUDGMENT

  • Basis – no triable issue of fact.

  • Done to pro pers to gain advantage.

  • Five day notice.

  • Response – written or oral.


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SETTLEMENT AGREEMENTS

  • Advantages – certainty for both sides.

  • Disadvantages – attorney representation on one side only.

  • Issues to resolve – vacate date, rent/damages, costs, attorney fees, dismissal of case.


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POST-TRIAL MOTIONS

  • Petition for Relief from Forfeiture.

  • Motion for Stay of Execution on Writ of Possession.

  • Appeals.