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1 THE TENANT’S GUIDE TO EVICTION DEFENSE. 2 OVERVIEW This section of the training will give you information on defenses available to tenants in eviction.

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Presentation on theme: "1 THE TENANT’S GUIDE TO EVICTION DEFENSE. 2 OVERVIEW This section of the training will give you information on defenses available to tenants in eviction."— Presentation transcript:

1 1 THE TENANT’S GUIDE TO EVICTION DEFENSE

2 2 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. 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.

3 3 UNLAWFUL DETAINER – SUMMARY PROCEDURE Summary procedure Summary procedure Very technical Very technical Five day response period Five day response period No cross-complaints No cross-complaints Priority on the calendar Priority on the calendar Speedy trial setting Speedy trial setting Short discovery periods Short discovery periods Strict construction of rules by court Strict construction of rules by court Public policy – avoid self-help Public policy – avoid self-help

4 4 WHAT THE LANDLORD WANTS Possession primarily Possession primarily Rent/damages, costs, attorney fees Rent/damages, costs, attorney fees

5 5 WHAT THE TENANT WANTS Their day in court – due process Their day in court – due process Landlord to meet strict requirements Landlord to meet strict requirements Maintain possession or Maintain possession or Time to relocate Time to relocate

6 6 BACKGROUND ON SIGNFICANT TENANTS’ RIGHTS/DEFENSES Significant rights include: A right to a habitable unit; A right to a habitable unit; A right to exercise the rights under law without retaliation by the landlord; 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. A right to be free from discrimination in the terms and conditions of rental.

7 7 WARRANTY OF HABITABILITY A rental unit must be fit to live in. A rental unit must be fit to live in. Warranty includes unit and common areas. Warranty includes unit and common areas.

8 8 DEFINITION OF HABITABILITY Habitable means: fit for occupancy by human beings; 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 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. in compliance with provisions of the Civil Code and Health and Safety Code.

9 9 RESPONSIBILITY FOR REPAIRS Landlord’s responsibility Unit must be habitable when at the beginning of the tenancy. Unit must be habitable when at the beginning of the tenancy. Unit must be habitable during tenancy. Unit must be habitable during tenancy.

10 10 IMPLIED WARRANTY OF HABITABILITY Green v. Superior Court, 10 Cal.3d 616 (1974) Residential leases and rental agreements include an implied warranty of habitability. Residential leases and rental agreements include an implied warranty of habitability. Dependent covenants – obligation to pay rent and obligation to repair. Dependent covenants – obligation to pay rent and obligation to repair. Common law – duty to repair independent of obligation to pay rent. Common law – duty to repair independent of obligation to pay rent.

11 11 BASIS FOR DECISION No relationship to social and legal realities of landlord/tenant relationship today; No relationship to social and legal realities of landlord/tenant relationship today; Contract for a place to live, not land; Contract for a place to live, not land; Scarcity of affordable housing; Scarcity of affordable housing; Lack of bargaining power; Lack of bargaining power; Inability to do major repairs or inspections. Inability to do major repairs or inspections.

12 12 Uninhabitable conditions Unit is considered uninhabitable if it substantially lacks any of the following: Effective weatherproofing and weather protection; Effective weatherproofing and weather protection; Plumbing in good condition; Plumbing in good condition; Hot and cold running water; Hot and cold running water; Sewage disposal system. Sewage disposal system.

13 13 UNINHABITABLE CONDITIONS (CONT.) Gas facilities in good working order; Gas facilities in good working order; Heating facilities in good working order; Heating facilities in good working order; Electrical system including lighting, wiring and equipment 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; Clean and sanitary buildings and grounds free from trash, debris, rubbish, garbage, rodents and vermin; Adequate trash receptacles in good repair. Adequate trash receptacles in good repair.

14 14 UNINHABITABLE CONDITIONS (CONT.) Deadbolt locks on entry doors and locks or security devices on windows; Deadbolt locks on entry doors and locks or security devices on windows; Additional requirements Health and Safety Code; Additional requirements Health and Safety Code; Lead paint; Lead paint; Mold and mildew. Mold and mildew.

15 15 TENANT’S RESPONSIBILITY Keep premises as clean and sanitary as conditions permit; Keep premises as clean and sanitary as conditions permit; Operate gas, electrical and plumbing fixtures properly; Operate gas, electrical and plumbing fixtures properly; Dispose of trash and garbage properly; Dispose of trash and garbage properly; No destruction of property by tenant, family or friends; No destruction of property by tenant, family or friends; Use of the premises as a place to live and rooms for intended purposes. Use of the premises as a place to live and rooms for intended purposes.

16 16 NO OBLIGATION TO REPAIR If tenant fails to do these things and If tenant fails to do these things and has substantially caused an unlivable condition and/or; has substantially caused an unlivable condition and/or; has substantially interfered with the landlord’s ability to do repairs. has substantially interfered with the landlord’s ability to do repairs.

17 17 TENANT REMEDIES TO GET REPAIRS DONE Must give notice - oral or written; Must give notice - oral or written; Written is preferable; Written is preferable; Must wait a reasonable time; Must wait a reasonable time; Must be a condition that affects health and safety; Must be a condition that affects health and safety; Series of escalating remedies available. Series of escalating remedies available.

18 18 REPAIR AND DEDUCTREPAIR AND DEDUCT Tenant gives notice; Tenant gives notice; Tenant waits a reasonable time; Tenant waits a reasonable time; Tenant pays for repairs; Tenant pays for repairs; Must be substandard condition that affects health and safety; Must be substandard condition that affects health and safety; Can be used two times/year, one month’s rent each time; Can be used two times/year, one month’s rent each time; Tenant is not the cause of the problem. Tenant is not the cause of the problem.

19 19 CONTACT CODE ENFORCEMENT ADVANTAGES Neutral party Neutral party Professional evaluation of code violations Professional evaluation of code violations Good trial evidence Good trial evidence Powerful remedy Powerful remedy

20 20 CONTACT CODE ENFORCEMENT (Cont.) DISADVANTAGES Weak and lax enforcement Weak and lax enforcement Dislocation of tenants Dislocation of tenants Retaliation and eviction Retaliation and eviction

21 21 RENT WITHHOLDING Tenant can withhold for conditions that seriously affect health or safety; for conditions that seriously affect health or safety; If notice has been given and no repairs done; If notice has been given and no repairs done; Examples of serious conditions; Examples of serious conditions; Rent into bank account. Rent into bank account. Eviction will inevitably result! Eviction will inevitably result!

22 22 RETALIATION No adverse action against tenant including eviction for: exercising certain enumerated rights or exercising certain enumerated rights or for organizing activities or for organizing activities or for peaceful exercise of rights under law. for peaceful exercise of rights under law. Available as an affirmative defense; Available as an affirmative defense; Basis for damages. Basis for damages.

23 23 RETALIATION DEFENSE – Civil Code Section (a) Limited statutory defense Includes complaints to owner or agent, governmental agency complaints to owner or agent, governmental agency code enforcement citation code enforcement citation lawsuit regarding substandard conditions lawsuit regarding substandard conditions

24 24 RETALIATION (CONT.) Civil Code Section (a) 180 days protection from latest of series of acts of retaliation; 180 days protection from latest of series of acts of retaliation; requires tenant to be current in rent. requires tenant to be current in rent. Burden of proof. Burden of proof.

25 25 RETALIATION (CONT.) Civil Code Section (c) Broader protection Broader protection Includes tenant organizing, rent strikes Includes tenant organizing, rent strikes Peaceful exercise of rights Peaceful exercise of rights Burden of proof. Burden of proof.

26 26 COMMON LAW DEFENSE Barela v. Superior Court, 30 Cal.3d 244 (1981) Barela v. Superior Court, 30 Cal.3d 244 (1981) Significance of decision Significance of decision

27 27 RETALIATION (CONT.) Requires careful interview of client on events prior to service of notice. Requires careful interview of client on events prior to service of notice. Reason based on retaliation won’t be stated by owner or agent. Reason based on retaliation won’t be stated by owner or agent.

28 28 DISCRIMINATION Available as a defense if reason for eviction is discriminatory intent or effect. 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. 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. Federal law – race, color, religion, sex, national origin, familial status, disability.

29 29 DISCRIMINATION (CONT.) State law – federal law categories and additional classifications including marital status, ancestry, source of income, sexual orientation, arbitrary discrimination 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. Both federal and state laws require reasonable accommodation.

30 30 THE DISCRIMINATION DEFENSE Must belong to protected group. Must belong to protected group. Eviction must be based on membership in protected group. Eviction must be based on membership in protected group.

31 31 DISCRIMINATION (CONT.) Prove by direct evidence of intent or circumstantial evidence. Prove by direct evidence of intent or circumstantial evidence. Requires careful interview to get critical facts. Requires careful interview to get critical facts. Available as an affirmative defense. Available as an affirmative defense. Basis for damages. Basis for damages.

32 32 TERMINATION OF TENANCY Usually the first step in the eviction process Usually the first step in the eviction process Must be in writing Must be in writing Exceptions Exceptions End of lease End of lease Termination of employee Termination of employee

33 33 GENERAL REQUIREMENTS Must name the tenant Must name the tenant Must include a description of the property Must include a description of the property Must include unequivocal demand for production Must include unequivocal demand for production Should include a request for forfeiture Should include a request for forfeiture Notice period must expire before filing Notice period must expire before filing

34 34 TYPES OF NOTICES Three Day Notice to Pay Rent or Quit Three Day Notice to Pay Rent or Quit Three Day Notice to Perform or Quit Three Day Notice to Perform or Quit Three Day Notice to Quit Three Day Notice to Quit Thirty Day notice to Terminate Tenancy Thirty Day notice to Terminate Tenancy Sixty Day Notice to Terminate Tenancy Sixty Day Notice to Terminate Tenancy Ninety Day Notice to Terminate Tenancy Ninety Day Notice to Terminate Tenancy

35 35 THREE DAY NOTICE TO PAY RENT OR QUIT Cannot be served until the day after the rent is due; 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; Must accurately state the amount of rent due and the period for which it is due; Should include rent only; Should include rent only; Must be in the alternative; Must be in the alternative; Must include locations, days and hours to pay; Must include locations, days and hours to pay; Must include information if alternative payment arrangements can be made; Must include information if alternative payment arrangements can be made; Rent for only one year; Rent for only one year; Should declare a forfeiture; Should declare a forfeiture; Must include unequivocal demand for possession. Must include unequivocal demand for possession.

36 36 SERVICE OF THREE DAY NOTICE TO PAY RENT OR QUIT Personal service on all tenants Personal service on all tenants Substituted service Substituted service Nail and mail Nail and mail Same service requirements for Three Day Notice to Perform or Quit and Three Day Notice to Quit Same service requirements for Three Day Notice to Perform or Quit and Three Day Notice to Quit

37 37 COMMON TENANT DEFENSES Premature filing of the Complaint Premature filing of the Complaint Defective service Defective service Defects on the face of the notice Defects on the face of the notice Habitability Habitability Tender Tender Waiver Waiver

38 38 THREE DAY NOTICE TO PERFORM OR QUIT Must accurately state the breach; Must accurately state the breach; Must be in the alternative; Must be in the alternative; Cannot be for a minor breach; Cannot be for a minor breach; Should declare a forfeiture; Should declare a forfeiture; Must include an unequivocal demand for possession; Must include an unequivocal demand for possession; Must be breach of an express covenant. Must be breach of an express covenant.

39 39 COMMON TENANT DEFENSES Defective service of the notice; Defective service of the notice; Failure to state details with sufficient particularity; Failure to state details with sufficient particularity; Must be in the alternative; Must be in the alternative; Minor problem; Minor problem; Waiver; Waiver; Denial of allegations. Denial of allegations.

40 40 THREE DAY NOTICE TO QUIT Serious breach that cannot be cured; Serious breach that cannot be cured; Includes waste/nuisance, illegal drug sales, subletting and assignment if prohibited by the rental agreement/lease; Includes waste/nuisance, illegal drug sales, subletting and assignment if prohibited by the rental agreement/lease; Not required to be in the alternative; Not required to be in the alternative; Breach must be described with sufficient particularity; Breach must be described with sufficient particularity; Should declare a forfeiture; Should declare a forfeiture; Must include an unequivocal demand for possession. Must include an unequivocal demand for possession.

41 41 COMMON TENANT DEFENSES Defective service of notice Defective service of notice Minor problem Minor problem Should have been in the alternative Should have been in the alternative Denial of allegations Denial of allegations

42 42 THREE DAY NOTICE TO QUIT - FORECLOSURE Served on owner whose property has been sold at trustee’s sale Served on owner whose property has been sold at trustee’s sale

43 43 COMMON TENANT DEFENSES Defective service of notice Defective service of notice Can require new owner to show that title has been perfected Can require new owner to show that title has been perfected Fraud in transfer of title – Ascuncion motion Fraud in transfer of title – Ascuncion motion

44 44 THIRTY DAY NOTICE TO TERMINATE TENANCY Done to terminate month to month tenancy of less than one year; Done to terminate month to month tenancy of less than one year; Month to month rental agreement; Month to month rental agreement; Must include unequivocal demand for possession; Must include unequivocal demand for possession; No need to state reason (exception – rent control jurisdiction). No need to state reason (exception – rent control jurisdiction).

45 45 SERVICE OF NOTICE Personal service Personal service Substituted service Substituted service Nail and mail Nail and mail Certified or registered mail Certified or registered mail

46 46 TENANT DEFENSES Defective service Defective service Premature filing of Complaint Premature filing of Complaint Waiver Waiver Retaliation Retaliation Discrimination Discrimination

47 47 SIXTY DAY NOTICE OF TERMINATION OF TENANCY Done to terminate month to month tenancy of a year or more. Done to terminate month to month tenancy of a year or more. Month to month rental agreement. Month to month rental agreement. Must include unequivocal demand for possession. Must include unequivocal demand for possession. Tenant in property not protected by PTFA. Tenant in property not protected by PTFA.

48 48 SERVICE OF NOTICE Personal service Personal service Substituted service Substituted service Nail and mail Nail and mail Certified or registered mail Certified or registered mail

49 49 NINETY DAY NOTICE Section Eight Housing Choice voucher program- Wasatch Property Management v. Degrate, 35 Cal.4 th 1111 (2005). Section Eight Housing Choice voucher program- Wasatch Property Management v. Degrate, 35 Cal.4 th 1111 (2005). Tenant in foreclosed property subject to PTFA. Tenant in foreclosed property subject to PTFA.

50 50 SERVICE OF SUMMONS AND COMPLAINT Personal Personal Substituted Substituted Posting Posting

51 51 PROBLEMS WITH SERVICE Sewer service Sewer service Defective service remedies – motion to quash, abuse of process lawsuit Defective service remedies – motion to quash, abuse of process lawsuit Courtesy letter as remedy Courtesy letter as remedy

52 52 INITIAL CLIENT INTERVIEW Inquire about: Date of service of Summons and Complaint Date of service of Summons and Complaint Defendants Defendants Manner of service as to all defendants Manner of service as to all defendants Documents served on the defendants Documents served on the defendants Type of tenancy Type of tenancy

53 53 CASES TO REFER Subsidized housing Subsidized housing Mobilehome owners Mobilehome owners Foreclosure – fraud claims Foreclosure – fraud claims

54 54 PREJUDGMENT CLAIM OF RIGHT TO POSSESSION Used by owners to determine who is occupying property Used by owners to determine who is occupying property Unnamed defendant must file within 10 days of service, answer 5 days later Unnamed defendant must file within 10 days of service, answer 5 days later Disadvantage – credit consequences Disadvantage – credit consequences

55 55 A QUICK LESSON IN COUNTING Must file within 5 days of service including weekends Must file within 5 days of service including weekends Holiday exception Holiday exception Why counting is important Why counting is important File early if any doubt File early if any doubt Consequences of a mistake Consequences of a mistake

56 56 NEXT STEPS Review Complaint allegations Review Complaint allegations Review prayer Review prayer Review possible defenses Review possible defenses

57 57 WHAT IS NOT A DEFENSE Loss of income Loss of income Receipt of welfare Receipt of welfare Inability to pay rent Inability to pay rent No place to move No place to move Lots of children Lots of children Disability unrelated to reason for eviction Disability unrelated to reason for eviction

58 58 JUDICIAL COUNCIL ANSWER- UNLAWFUL DETAINER All answering defendants can use one Answer form; each defendant completes separate fee waiver forms. 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. 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. Deny all paragraphs containing untrue statements or statements with which the defendant disagrees. Denial on information or belief. Denial on information or belief.

59 59 AFFIRMATIVE DEFENSES Inform the Court why the defendant should not be evicted; Inform the Court why the defendant should not be evicted; Need not be detailed; Need not be detailed; Enough information to give notice to the plaintiff. Enough information to give notice to the plaintiff.

60 60 BEACH OF THE IMPLIED WARRANTY OF HABITABILITY Page 1, 2b – deny paragraphs 10 and 11 Page 1, 2b – deny paragraphs 10 and 11 Page 1, box 3a must be checked Page 1, box 3a must be checked Page 2, box 3j to add facts or Page 2, box 3j to add facts or Use an attachment page – see 3 j (1) or (2) and paragraph 6 Use an attachment page – see 3 j (1) or (2) and paragraph 6 Must address defects, notice, failure to repair Must address defects, notice, failure to repair

61 61 BREACH OF THE IMPLIED WARRANTY OF HABITABILITY (CONT.) Add language on page 2, paragraph 4b, for example, “The premises are not habitable.” Add language on page 2, paragraph 4b, for example, “The premises are not habitable.” Check box on page 2, paragraph 5 d. Check box on page 2, paragraph 5 d.

62 62 REPAIR AND DEDUCT Page one, box 2 a or 2 b –deny paragraphs 10 and 11- must be checked. Page one, box 2 a or 2 b –deny paragraphs 10 and 11- must be checked. Page one, box 3 b must be checked. Page one, box 3 b must be checked. Must have complied with statutory requirements. Must have complied with statutory requirements. Plaintiff must have failed to give credit. Plaintiff must have failed to give credit. Page 2, box 3j to add facts or Page 2, box 3j to add facts or Use an attachment page – see 3 j (1) or (2) and paragraph 6. 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. Must address defects, notice, failure to repair, defendant’s repair of defects.

63 63 REPAIR AND DEDUCT (CONT.) May add language on page 2, paragraph 4b. May add language on page 2, paragraph 4b. May check box on page 2, paragraph 5 d. May check box on page 2, paragraph 5 d.

64 64 TENDER OF RENT Requires tender of full amount Requires tender of full amount In form generally accepted by owner In form generally accepted by owner Within the three day notice period 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 2 a or 2 b –deny paragraphs 10 and 11- must be checked. Page one, box 3 c must be checked. Page one, box 3 c must be checked. Additional facts on page 2, paragraph 3j Additional facts on page 2, paragraph 3j

65 65 LANDLORD WAIVED NOTICE Repeated acceptance of late rent Repeated acceptance of late rent Agreement to accept 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 2 a or 2 b –deny paragraphs 10 and 11- must be checked. Page one, box 3 d must be checked. Page one, box 3 d must be checked. Additional facts on page two, paragraph 3j. Additional facts on page two, paragraph 3j.

66 66 RETALIATION DEFENSE Page one, box 3 e must be checked. Page one, box 3 e must be checked. Additional facts can be added on page 2, paragraph 3j. 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.” Sufficient to state that the reason the plaintiff is evicting the tenant is, for example, “Defendant complained to code enforcement.”

67 67.DISCRIMINATION DEFENSE Page one, box 3 f must be checked. Page one, box 3 f must be checked. Additional facts can be added on page 2, paragraph 3j. 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. 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.

68 68 ACCEPTANCE OF RENT Page one, box 3 h must be checked. Page one, box 3 h must be checked. Additional facts can be added on page 2, paragraph 3j. 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. Examples include acceptance of rent for a period after the Thirty or Sixty Day notice expired.

69 69 OTHER AFFIRMATIVE DEFENSES Page one, box 3 i must be checked. Page one, box 3 i must be checked. Additional facts can be added on page 2, paragraph 3j. 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. 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.” Advisable to a catchall phrase such as “The Complaint fails to state a cause of action.”

70 70 TENANTS WHO HAVE DEFAULT JUDGMENTS Setting aside requires showing of mistake, inadvertence, excusable neglect. Setting aside requires showing of mistake, inadvertence, excusable neglect. Numerous pleadings necessary. Numerous pleadings necessary. Interview to establish sufficiency of reason. Interview to establish sufficiency of reason.

71 71 PRE-TRIAL DISCOVERY Judicial Council Interrogatories. Judicial Council Interrogatories. Judicial Council Requests for Admission. Judicial Council Requests for Admission. Depositions. Depositions. Timelines. Timelines.

72 72 SUMMARY JUDGMENT Basis – no triable issue of fact. Basis – no triable issue of fact. Done to pro pers to gain advantage. Done to pro pers to gain advantage. Five day notice. Five day notice. Response – written or oral. Response – written or oral.

73 73 SETTLEMENT AGREEMENTS Advantages – certainty for both sides. Advantages – certainty for both sides. Disadvantages – attorney representation on one side only. Disadvantages – attorney representation on one side only. Issues to resolve – vacate date, rent/damages, costs, attorney fees, dismissal of case. Issues to resolve – vacate date, rent/damages, costs, attorney fees, dismissal of case.

74 74 POST-TRIAL MOTIONS Petition for Relief from Forfeiture. Petition for Relief from Forfeiture. Motion for Stay of Execution on Writ of Possession. Motion for Stay of Execution on Writ of Possession. Appeals. Appeals.


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