Category Archives: Defenses

Affirmative Defenses: Miscellaneous

Finally, there are some defenses that rarely arise, but if they do an attorney ought to assert on a tenant’s behalf. For example:

  1. The tenant has paid the landlord a refundable deposit and wants the court to subtract the amount of that deposit from the judgment.
  2. The plaintiff is not the landlord.
  3. The landlord’s title and right to possession is void or voidable.
  4. The rental property title is disputed.
  5. The landlord violated the implied covenant of good faith and fair dealing.
  6. The landlord violated the implied covenant of quiet enjoyment.

A competent attorney will be able to explain in detail if any of these defenses would apply to a landlord or tenant’s particular case.

Affirmative Defenses: Retaliation and Discrimination

While rare, some landlords are  unscrupulous. Such landlords may try to evict a tenant as retaliation for:

  1. Complaining to a governmental agency about the poor condition of the property.
  2. Complaining to the landlord (or his management company) about the poor condition of the property.
  3. Joining a tenant’s union or trying to organize the tenants.

This is simply a list for illustrative purposes, only an attorney that a tenant retains can see if any of these defenses apply. However, it goes without saying that no landlord should engage in any of those activities. And in the unfortunate event that a landlord does engage in any of those activities, a tenant may have an affirmative defense to eviction.

Along similar lines is a landlord bringing an unlawful detainer action to discriminate against a tenant. Generally, the United States Constitution, federal laws, state laws, and even local laws,  prohibit a landlord from discriminating against his tenants because of their race, national origin, sexual orientation, family status, disability, gender, age, and religion. Therefore, if a tenant feels that his landlord evicted him based on any of these factors he may be able to assert an affirmative defense against his landlord.

Affirmative Defenses: Complaint

A tenant may also try to raise some affirmative defenses against the complaint itself. Again, this is NOT legal advice. Please seek the advice of a competent attorney if you are trying to evict or are being evicted.

There are basically two defenses: (1) that the complaint was improperly verified; and (2) that the complaint was filed before the notice period expired. I will explain each in turn.

A complaint is verified when the landlord attached an affidavit to it that swears to the truth of the pleading. But since every document submitted to the court is submitted under penalty of perjury, do not expect this defense to be very effective, if at all.

Second, the complaint could have been filed prematurely. For example, the complaint was served before the three-days from the three-day notice had expired (or thirty days from a thirty-day notice, which i will discuss in a later post).

Now, I will give an example as to why tenants and lawyers ought to have an attorney. The eviction process is fairly complex and a landlord unfamiliar with the law can easily lose an unlawful detainer action; likewise a tenant can easily be evicted if unfamiliar with the law. In California, if the landlord posts and mails the three-day notice (see my previous post), then the tenant has an additional five days to respond under CCP section 1013(a).

Affirmative Defenses: Notice

As I said in my last post, the answer is the proper place for the tenant to assert affirmative defenses. A tenant must use an affirmative defense or lose it; if he fails to assert a defense in his answer, he is generally barred from asserting it later. I will list a few affirmative defenses, but do NOT construe this as legal advice.

For ease of posting this on my blog I will divide the defenses into several categories: (1) defective notice; (2) defective complaint; (3) retaliation; (4) discrimination; and (5) miscellaneous.

A tenant can assert that the three-day notice was defective. But to assert this defense, the tenant must file a motion to quash service. And to cure this defect, the landlord must simply serve his tenant properly. Thus, this defense at best will only buy a little time. As I stated in my earlier posts, the landlord’s three-day notice must comply with a statute, if it doesn’t the notice is defective. A three-day notice to pay rent or quit may be defective if it:

  1. Demands more rent than the tenant owes.
  2. Fails to state an address where the tenant can pay rent.
  3. Fails to describe the rental property.
  4. Is served before rent was late.
  5. Fails to clearly demand possession of the rental property.
  6. Is based on a breach of the lease agreement, but fails to state what the tenant must do to cure the breach or did not give three days to cure the breach, or both.
  7. Fails to declare the lease is forfeited.
  8. Is never served.
  9. Was served differently than as stated in the complaint.
  10. The notice attached to the complaint is different than that served on the tenant.
  11. Landlord served multiple notices on the tenant, so that the tenant was confused about what the landlord wanted.
  12. Building code violations have existed for over six months, so the rent that the landlord is charging is excessive.

These are just a few examples of affirmative defenses for illustrative purposes. If none of these apply, the tenant will then try to attack the complaint.

Help! I’m Being Evicted

This blog will describe the process of an eviction first from the tenant’s point of view, then from the landlord’s.

First, the landlord will have a reason that he wants the tenant to leave. Depending on the type of lease and landlord’s reason the amount of time will vary. For example, a landlord can terminate a month-to-month tenancy by giving his tenant thirty or sixty days’ written notice.

Under certain circumstances, the landlord is only required to give his tenant three days’ written notice. The most common reason is that the tenant has stopped paying rent. Other reasons include a breach of the lease agreement between the landlord and tenant (i.e., there are people living in with the tenant, not listed in the lease). The tenant has materially damaged the rental property (this called committing waste). The tenant has substantially interfered with other tenants (this is called committing a nuisance). And finally, the tenant has used the rental property for an unlawful purpose such as selling drugs.

Another, although less common reason, is landlord retaliation. For instance the landlord wants to evict the tenant for complaining to a governmental agency about the living conditions or trying to participate in a tenant’s union. Finally, there maybe no cause at all.

Once the landlord has decided that he wants his tenant out of his rental property, usually the easiest and most expedient solution for all parties is to negotiate some type of settlement. The tenant may agree to leave immediately, forfeit any deposit, and work out a repayment schedule for past-due rent. Remember, always get everything in writing.

If the landlord and the tenant cannot reach a settlement, then the landlord will usually begin the eviction process, also known as an unlawful detainer proceeding.