Landlord - Tenant Issues
We represent both landlords and tenants in actions for unlawful detainer, habitability, and unlawful discrimination. No matter which side we represent for you, we promise aggressive representation to protect your rights!
UNLAWFUL DETAINER FAQ’S
What is the difference between a “lease” and a “rental agreement?
A lease gives the right to a tenant to occupy real property (land, condominium, apartment, house, store, factory, etc) for a specified period of time, for example, one year, after which the tenant must vacate the property or renegotiate continued occupancy with the landlord. If the tenant vacates before the lease expires and the landlord is unable to locate a new tenant, the tenant is liable for the remainder of the lease. If the landlord displaces the tenant, the landlord is liable to the tenant for any additional costs the tenant may incur.
A rental agreement, also known as a “periodic tenancy”, usually month-to-month, but can be any other period of time (week, year, fortnight) on which the parties agree. The period is determined by the rent schedule. If rent is paid once a month, then it’s a month-to-month tenancy. A periodic tenancy can be terminated by either party at any time with notice corresponding to the agreed period. If it’s a month-to-month tenancy, either party can terminate the agreement on one month’s notice. When the occupancy terminates, so does the liability of the tenant for rent.
For what is a landlord allowed to evict a tenant?
The most common cause for eviction is failure to pay rent. A landlord can also evict a tenant for breach of the terms of the rental agreement or lease, assuming the agreement or lease was lawful. For example, if it says, “no pets” and the tenant fails to get rid of the pet after notice, then the landlord can evict the tenant. However, an agreement, which reads, “no Hispanic guests” would be unenforceable because the law forbids racial discrimination. Another common reason for eviction is that the lease term has expired.
What should a landlord do to evict a tenant?
Call us. Do not represent yourself in Court. Do not use a “paralegal” or “document assistant.” You do not save money by representing yourself because those who represent themselves in Court nearly always lose the case. Because an Unlawful Detainer is a streamlined procedure, the landlord must strictly comply with the procedural rules. If the Landlord fails to do so, the Landlord loses and must start all over again, resulting in increased rental losses and litigation costs.
What is a Three Day Notice?
If a tenant does not pay rent, the landlord serves a Three Day Notice to Pay or Quit. It gives the tenant three days, not counting the date of service, (ending on the next business day if the third day falls on a Saturday, Sunday, or Holiday) to pay the amount demanded in the notice. The notice must state the exact amount of rent due (not late charges or other fees) and the period to which the rent applies. It must state where to pay the rent and to whom and during what hours it will be accepted. If the tenant has violated the lease or rental agreement in some other way, the landlord can serve a Three Day Notice to Perform Covenant or Quit. If the tenant does not pay or correct the violation within the time allowed, the Landlord can file an Unlawful Detainer. The notice must be served on the tenant personally, left with an occupant of the tenant’s home or business and thereafter mailed, or posted in a conspicuous place on the property and mailed to the tenant.
What should a tenant do if served with a Three Day Notice?
If you owe the rent and want to stay, pay the rent. If however, you feel you have a defense to the eviction (see below), contact me right away so that I can advise you if your position has legal merit.
What is a Thirty Day Notice?
A landlord serves a Thirty Day Notice to terminate a month-to-month tenancy. Serve the notice a month before you want the tenant to vacate. However, if the tenant has been in place more than a year, a sixty day notice is necessary. If the tenant does not leave, no further notices are necessary before Court proceedings.
What is an Unlawful Detainer?
An Unlawful Detainer is a law suit brought by a person in lawfully entitled to possession of real property to recover possession from one wrongfully remaining on the property and refusing to leave. The most common reason is non-payment of rent. Other reasons include the failure of the tenant to leave after receiving a notice terminating tenancy (30-Day Notice) or after a fixed term lease has expired; or if the tenant has breached a covenant in the lease and failed to correct the violation within the time allotted.
An Unlawful Detainer is a “summary proceeding”, that is, it is designed to streamline the case through the Court system. Unlike a conventional lawsuit on which a response is due in 30 days, an Unlawful Detainer response is due in five days of date of service on the tenant. Discovery deadlines are also shortened. The case receives preferential trial setting, usually within 15 to 20 days of when an Answer is filed.
How must an Unlawful Detainer be served?
It must be personally handed to the tenant, or left at the tenant’s home or place of business with someone in charge and then mailed to the tenant. If the tenant cannot be located, it can be posted on the property and then mailed to the tenant. If the Summons and Complaint are not served properly, the tenant’s attorney can file a Motion to Quash Service.
What should a tenant do if served with an Unlawful Detainer?
Call us immediately! Do not represent yourself in Court. Do not use a “paralegal” or “document assistant.” You do not save money by representing yourself because those who represent themselves in Court nearly always lose the case. If the tenant does not respond within five days, the Court can enter a Default and Default Judgment. This enables the landlord to obtain a writ of possession directed to the County Sheriff, who then posts a notice on the property giving the tenant five days to leave.
If the case is defensible, the tenant should defend the case. If the tenant simply needs time to move, the tenant should hire me to file an Answer. Once an Answer is filed, the Court must set the case for trial within twenty days of the date a request to set trial is filed. If the tenant does not show up for trial, the case proceeds as a “default prove-up” and a Judgment for possession of the premises and rent is entered against the tenant. Practically speaking, the filing of an Answer, without going to trial, buys about fifteen days extra time.
What do you charge for Unlawful Detainers?
I represent both landlords and tenants on a flat fee basis, payable in advance by cash or credit card. Out-of-pocket costs are additional.
For landlords, an uncontested case is $425. If the tenant contests the eviction, and a trial is necessary, we charge $825
For tenants, to file an Answer only is $100. A full defense, with a trial, is $850.
Many leases and rental agreements have attorney fee provisions, which allow the prevailing party to recover attorney fees from the losing party.
What defenses are available to eviction?
If the reason for eviction is non-payment of rent, the tenant as the following possible defenses:
- The tenant paid the rent before the notice was served.
- The landlord refused to accept the rent either before the notice was served, or before the notice had expired.
- The landlord accepted rent after service of the three day notice.
- The three day notice did not correctly state the amount of rent due or is defective in some other way.
- The landlord breached the warranty of habitability. That means the premises were in substandard condition, discussed further below.
- The landlord has breached the lease or rental agreement in some other way.
- The landlord has breached the covenant of quiet enjoyment (explained below).
If the reason is that the tenant has not left after receiving a Notice to Terminate tenancy, the defenses are
- The landlord is retaliating against the tenant for exercising some legal right such as repair-and-deduct (discussed below) or reporting a building or health violation to a government agency.
- The landlord is unlawfully discriminating against the tenant on grounds such as race, gender, family with children, age, physical handicap, religion, sexual orientation, or national origin.
If the reason is the tenant has breached a covenant in the lease or rental agreement, the tenant can defend by contending:
- The covenant or regulation is forbidden by law.
- The covenant or regulation was never violated.
- The tenant corrected the violation.
- Defenses of retaliation and unlawful discrimination may also be available.
What is the warranty of habitability?
The law views a lease or rental agreement is a contract for housing, not just a right of occupancy. In exchange for the tenant’s payment of rent, the landlord is obligated to keep the premises in “tenantable condition”. See below for further information under “Warranty of Habitability”
Can a landlord disconnect utilities or remove the doors and windows to force the tenant to leave?
No. The landlord is liable to the tenant for self-help. The landlord must use the proper Unlawful Detainer procedures.
What is the covenant of quiet enjoyment?
The covenant of quiet enjoyment means the landlord will do nothing to disturb the tenant in possession which amounts to a substantial and material interference with the tenant’s right to possession. For example, if a tenant lives in a duplex and the landlord is in the other unit, the landlord can’t play her stereo at full blast preventing the tenant from sleeping. The landlord can’t carry on activities which prevent the tenant’s going out or coming into the property or which prevent the operation of utilities. The landlord can’t abuse the right to enter the premises to show for sale or to make repairs. These acts amount to “constructive eviction” enabling the tenant to sue for damages.
WARRANTY OF HABITABILITY
A tenant can bring a separate lawsuit against a landlord for damages (outside of a defense to an unlawful detainer) for premises the law defines as untenantable to recover back rent plus civil penalties, court costs, and attorney fees. The Court can order the landlord to make repairs. The law provides a residential dwelling is required to have the following to be considered "tenantable."
- Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
- Plumbing or gas facilities which conformed to applicable law in effect at the time of installation, maintained in good working order.
- A water supply approved under applicable law, which is under the control of the tenant, capable of producing hot and cold running water, or a system which is under the control of the landlord, which produces hot and cold running water, furnished to appropriate fixtures, and connected to a sewage disposal system approved under applicable law.
- Heating facilities which conformed with applicable law at the time of installation, maintained in good working order.
- Electrical lighting, with wiring and electrical equipment which conformed with applicable law at the time of installation, maintained in good working order.
- Building, grounds and appurtenances at the time of the commencement of the lease or rental agreement in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, and all areas under control of the landlord kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin.
- An adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the time of the commencement of the lease or rental agreement, with the landlord providing appropriate serviceable receptacles thereafter, and being responsible for the clean condition and good repair of such receptacles under his control.
- Floors, stairways, and railings maintained in good repair.
- Telephone wiring (Civil Code §1941.4)
- A deadbolt lock on the door and locks on windows less than 12 feet above the ground (Civil Code §1941.3).
In the landlord-tenant context, “Buyer Beware” does not apply—the law imposes on the landlord an affirmative obligation to put the premises in a condition which complies with the law, even if the tenant agrees to rent the premises in a substandard condition. The landlord cannot shift this responsibility to the tenant by agreement. The landlord cannot make an agreement with the tenant to waive the tenant’s rights to habitable premises. Such agreements are unenforceable.
The tenants should first place the landlord on notice, in writing, by both certified and first class mail. If the violations are not corrected within a reasonable period of time, the tenant can repair the condition and deduct up to one month's rent, or the tenant can bring a lawsuit to force the landlord to make the corrections. The tenant can also call the local Building Code Enforcement officer to inspect the premises and write up the landlord for a violation. Should the matter go to Court, the tenant will be able to call the Code Enforcement Officer as an impartial, third party witness on the tenant's behalf.
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