Rent is Due When Rent is Due

Most leases, form or otherwise, provide a grace period for late rent. But the grace period is merely used to measure when the landlord will charge his tenant a late fee. The prudent landlord will serve a three-day notice to pay or quit the day after the rent is late. Of course, be mindful of rent that is due on weekends and holidays, as these may give the tenant an additional day or two to pay the rent.

Late Fees

A landlord should insert this provision into his lease agreement.
“Late Charge
The parties agree that it would be impractical or extremely difficult to fix the actual damage incurred the Landlord if the Tenant fails to pay rent timely. An administrative cost, which is related to collecting and accounting for the late payment will be assessed at the rate $3.00 per day for no more than 20 days from the day the late fee began. The late charge will commence the day after the rent is due. The parties further agree that the acceptance of this provision will be conclusive evidence in any legal proceeding that calculating actual damage would be impractical and extremely difficult to fix. Further the late fee assessed above, is conclusive evidence, in any legal proceeding, that it is a reasonable administrative cost.”

The Motion to Quash Service of Process

California Civil Code section 418.10 allows a defendant to file a motion to quash service of process. A defendant in an unlawful detainer action may still file a motion to quash service if process was not served in a statutorily authorized manner, even though he has actual notice of the lawsuit (i.e. received the summons and complaint). See Schering Corp. v. Super. Ct. (Ingraham), 52 Cal. App. 3d 737, 741 (1975). This motion is a pleading, so there is no judicial council form like there is for discovery. The defendant must also attach a proof of service when he files it. Here is an example.

Below is an example of a motion to quash service of process in a non-unlawful detainer case, note the differences:

Notice of Motion to Quash Service of Summons for Lack of Personal Jurisdiction.
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF ___________________

______________________ [name]
Plaintiff,
vs.
______________________ [name]
Defendant. )
Case No. ___________________
NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS
Date: ___________________
Time: ___________________
Location: ___________________
Judge: ___________________
Date Action Filed: ___________________
[Trial Date: ___________________]

To ___________________[name], plaintiff, and to ___________________[name], his/her attorney of record:

NOTICE IS GIVEN that defendant ___________________[name] appears specially to make this motion only and, so specially appearing, does and will, on ___________________[date], at ___________________[time], or as soon thereafter as the matter may be heard, in [___________________ (Department or Division) ___________________ of] this court, located at ___________________[street address], ___________________[city], move for an order quashing the service of summons on this defendant [and staying or dismissing the action]. The motion will be made on the ground(s) that the court lacks jurisdiction over the person of this defendant [and that California is an inconvenient forum and this action, in the interest of substantial justice, should be heard in a forum outside this state].

The motion will be based on this notice of motion, on the declaration(s) of ___________________[name(s)], and the supporting memorandum served and filed with this notice of motion, on the records and file in this action, and on such evidence as may be presented at the hearing of the motion.

Date: ___________________.

______________________ [firm name]

______________________ [signature]

______________________ [typed name]

Attorney for Defendant ______________________ [name]

When A Tenant in Los Angeles Refuses to Pay

Under Los Angeles Rent Control section 151.11

A. A tenant may refuse to pay any rent in excess of the maximum rent or maximum adjusted rent permitted pursuant to this chapter ro regulations or orders adopted hereunder or as further permitted by this chapter or ordinance.  The fact that such rent is in excess of maximum rent or maximum adjusted rent shall be a defense in any action brought to recover possession of a rental unit or to collect the illegal rent.  This subsection shall not be applicable to any rental unit not subject to the restrictions on rent set forth in this chapter.

B. A tenant may withhold the payment of rent otherwise lawfully due and owing after July 1, 1979 until such time as the landlord has complied with Section 151.05 A. of this chapter.  Once the landlord has complied with Section 151.05 A. of this chapter the tenant becomes obligated to pay the current rent and any back rent withheld pursuant to this subsection.

Here is section 151.05:

A. On or after July, 1979, no landlord shall demand or accept rent for a rental unit without first procuring, and serving on the tenant or displaying in a conspicuous place a valid written registration statement from the Department or its designee.  On or after April 30, 1983, no landlord shall demand or accept rent for a rental unit without first serving a copy of a valid registration or annual registration renewal statement on the tenant of that rental unit.

Is Your Landlord An Anti-American Fascist ?

Then do what Sharron White, a Patriot, did . . .

According to KATU, the Oaks Apartments at 1440 Geary Circle S.E., Albany, Oregon 97322 owned by Stan Keller, banned flags from the exteriors of apartments and vehicles parked at the complex. The manager, Barb Holcomb, told Ms. White, a long-time resident, to take down the flag she had on her car for eight years because “someone might get offended.” The American Civil Liberties Union said the policy banning flags from the apartment complex violated no laws.

But Ms. Holcomb reconsidered after received competent legal advice: “All automobiles and things attached to the automobiles are the personal property of the tenant.”  Enough said.

 

Holcomb said that the flag ban was based on an interpretation of two sections of the rental agreement.

I am trying to find that agreement. If anyone has these provisions post them in a comment please!

Adding Insult to Injury: Evicted After Domestic Violence

An article in the Chicago Tribune describes how after Kathy Cleaves-Milan’s then-live-in boyfriend had brandished a gun and promised to end both of their lives, the managers of her Elmhurst apartment complex served her with eviction papers for violating the terms of the lease.

The terms of the lease had been breached due to “violations arising from criminal activity.” The gun “violence” she had reported to police was sufficient. Here is a boilerplate “nuisance” clause:

“Violating Laws and Causing Disturbances: Tenant is entitled to quiet enjoyment of the premises. Tenant and guests or invitees will not use the premises or adjacent areas in such a way as to: (1) violate any law or ordinance, including laws prohibiting the use, possession, or sale of illegal drugs; (2) commit waste (severe property damage); or (3) create a nuisance by annoying, disturbing, inconveniencing, or interfering with the quiet enjoyment and peace and quiet of any other tenant or nearby resident.”

In California, these clauses are based on Code of Civil Procedure section 1161(4).  But the question is whether a clause like this is still enforceable.  On the left coast, the liberal California legislature passed S.B. 782 (modeled after a San Francisco ordinance). It gives the tenant an affirmative defense. A tenant can petition the court to stay in his rental unit if: (1) he provides written documentation by a qualified third-party (i.e., police officer, therapist, or licensed clinical social worker) substantiating the abuse; and (2) was served an eviction notice based primarily on acts of domestic violence, sexual assault, or stalking.  However, the tenant remains subject to all the terms of their lease (i.e., paying rent) and landlords would be able to evict the abuser.

Similarly, in 1985, New York passed a law making it illegal for a landlord to refuse to rent to a victim of domestic violence. Other states, including Minnesota and Colorado, have similar laws that prohibit a landlord from evicting a victim of domestic abuse because he has called the police. In Obama’s home state of  Illinois, where this eviction took place, the 2007 Safe Homes Act permits a domestic-abuse victim to terminate a lease early or request a lock change. And in 2010, an amendment to the Illinois Human Rights Act takes effect that will prohibit discrimination against a person who has obtained an order of protection.

The Prejudgment Claim of Right to Possession

Sometimes the landlord will attach  a Prejudgment Claim of Right to Possession to the unlawful detainer complaint.  Only complete the form if: (1) you are not named in the unlawful detainer complaint; (2) you lived in the rental unit on the day the unlawful detainer complaint was filed or before; and (3) you still live in the rental unit.

I Can’t Afford to be Evicted

If your landlord is evicting you it’s probably because you can’t pay your rent. If you can’t pay your rent then how are you expected to defend yourself against the landlord’s unlawful detainer suit? It costs money to file an answer to the complaint. When the tenant files his answer he ought to also fill out a request to waive court fees (asking the court) and an order on court fee waiver (actually waiving the fees). Then give both these documents to the court clerk with your answer and keep your money.

Discovery in Unlawful Detainer Actions

You may be asking yourself . . . What?!

Discovery is the process by which opposing parties to a lawsuit get information about the litigation from the other parties (and sometimes non-parties). The information is sought through discovery devices like interrogatories, depositions, requests for admissions, and requests for production.

The California Courts offer form interrogatories for an unlawful detainer action.

And the California Code of Civil Procedure specifically addresses discovery in unlawful detainers. For example, section 2031.020 states that a “defendant may make a demand for inspection, copying, testing, or sampling without leave of court at any time.” But a plaintiff in an unlawful detainer action may make a demand for inspection, copying, testing, or sampling without leave of court at any time, five days after: (1) service of the summons on the answering party; or (2) appearance by the answering party, whichever occurs first.

The astute landlord ought to know the procedure and the time-lines for discovery in an unlawful detainer action.

When A Landlord’s Rental Property Is Being Foreclosed

In the past, a foreclosure invalidated a lease. Thus for example, if a landlord purchased a house at foreclosure with existing tenants, he could serve a thirty-day notice on the tenants and evict the tenants.

However, the City of Los Angeles has added a foreclosure eviction moratorium to its rent control ordinance. Los Angeles City Council enacted the Foreclosure Eviction Ordinance on December 17, 2008. Consequently, landlords cannot evict tenants from rent-controlled properties in foreclosure. The fact that the property changes ownership (from the landlord to the bank), does not change the lease under the rent control ordinance. So, if the landlord’s property is foreclosed, he cannot evict the tenant because he no longer owns the property and a bank cannot evict the tenant merely because it foreclosed on the property.

Most likely, as standard practice, a bank will serve a tenant with an unlawful detainer complaint. The tenant should get legal advice immediately to determine his next course of action. It is important to understand that while the tenant is still living in the rental property he must pay rent to someone.