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THE TENANT’S GUIDE TO EVICTION DEFENSE PowerPoint Presentation
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THE TENANT’S GUIDE TO EVICTION DEFENSE

THE TENANT’S GUIDE TO EVICTION DEFENSE

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THE TENANT’S GUIDE TO EVICTION DEFENSE

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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 cases and review the law on which the most common defenses are based.

  3. 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

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

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

  6. 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.

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

  8. 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.

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

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

  11. 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.

  12. 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.

  13. 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.

  14. 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.

  15. 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.

  16. 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.

  17. 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.

  18. 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.

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

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

  21. 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!

  22. 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.

  23. 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

  24. 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.

  25. RETALIATION (CONT.) Civil Code Section 1942.5 (c) • Broader protection • Includes tenant organizing, rent strikes • Peaceful exercise of rights • Burden of proof.

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

  27. 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.

  28. 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.

  29. 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.

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

  31. 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.

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

  33. 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

  34. 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

  35. 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.

  36. 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

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

  38. 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.

  39. 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.

  40. 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.

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

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

  43. 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

  44. 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).

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

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

  47. 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.

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

  49. 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.

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