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TENANT'S DEFENSES TO AN EVICTION (UNLAWFUL DETAINER)
by Kenneth E. Wimer, Attorney at Law

I generally don't worry about a tenant's defenses, for one very good reason, I don't pursue cases that will lose. The trick of course is to identify the cases that are losers and the winners.

The primary defenses are:

1. Habitability;
2. Inaccurate facts; and
3. Retaliatory Eviction

Briefly, Habitability is a defense, in California, to a complaint that asks for money. If you feel that your case has a problem with the issue of habitability, then you will avoid serving a 3 Day Pay Rent Or Quit, but instead, if possible a 30, or a 60 day notice to terminate tenancy. Keeping in mind that 30 and 60 day notices are only available to month to month tenancies, not an unexpired lease. There are of course other notices that you can use, such as 3 day notice to terminate tenancy (nuisance), and a 3 day termination for breach of a non-curable covenant, these will be covered in a future article. The main problem with these last two notices is proof, or should I say the difficulty in proving. In most cases you will need to bring in other tenants to prove that the tenant is a nuisance, i.e. disturbing the peace and quiet of surrounding tenants.

If you serve a 3 Day Pay Rent or Quit, you be sure that there are no Habitability issues. The only sure way is to do two things:

a. Talk to your tenant and ask questions concerning the condition of the proeperty, and do it often, having the tenant sign a dated statement to that effect; and
b. Inspect the property.

If you fail to do these two simple things, and the tenant fails to pay rent, he/she could file an answer with the court stating that the premises is uninhabitable, because of rodents, bug infestation, leaking roof, broken pipes, or any number of things that are habitability issues in the State of California. You may say "I didn't know a pipe was broken, the tenant didn't tell me." In California the landlord is imputed to have knowledge of these matters. The tenant will tell the court that she/he withheld payment of rent because of these issues.

The court can enter a conditional judgment in favor of the tenant, ordering you, the landlord, to fix the problem, and telling the tenant that she/he shall pay an amount to be fixed by the court, and that the amount will be less than the amount set in the lease to compensate the tenant for living in an uninhabitable property. After that, if you serve a 30 or a 60 day notice, it will be inferred that you did so in retaliation of the tenant's successful defense, YOU LOSE AGAIN.

Inaccurate facts, is also a subject of future articles, but to keep it short, it means that you have served an inaccurate Notice. For instance a 3 Day Pay or Quit, where you ask for more than is due. If you ask for even a penny more than the tenant owes, then you loose. You can always ask for less, but never more. Also if you ask for money that is owed but is not rent, such as late fees, or other amount. Keep it simple, no late fees, and if in doubt about an amount owed, always ask for less.

Retaliatory eviction is a real killer, and can guarantee that you are going to have an undesirable tenant for a very long time.

A retaliatory eviction is an eviction which is motivated by the landlord's desire to retaliate for the tenant's exercise of a protected right. If the tenant proves, to the satisfaction of the court, it will defeat the landlord's right to possession.

Let me give you an example;

Say you have a tenant who has a cat, and "No Pets are Allowed" and this is in your month to month rental agreement. You ask the tenant, in writing, to get rid of the cat, but the tenant informs you that the cat is "Companion" animal, and was prescribed by her doctor. So you give her a 60 day notice terminating her tenancy because she is a terrible housekeeper and odors emanate from her unit. In court she testifies that the only reason she is being evicted is in retaliation for refusing to get rid of the cat.

Chances are you are a loser, and you will not be able to evict her for any reason, other than failure to pay rent, for the next 6 months.

Kenneth Wimer, is a California Landlord-Tenant Attorney, and has his office in Rancho Cordova, California. he offers help to Landlords at wimer.net




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