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 still 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. This form needs to be filled out only 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 you, as a tenant, are being evicted, it's probably because you can't pay your rent to your landlord. If you can't pay your rent then how are you expected to defend yourself against the landlord's unlawful detainer suit because 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 provide 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.

Jury Trials

Every tenant should request a jury trial in an eviction case because generally jurors tend to favor tenants and disfavor landlords. To request a jury trial, the tenant must file a Request for Jury Trial form, and of course pay. The tenant must pay the $150 jury trial fees five days before the trial date. Jury trials generally last two to five days and can cost the parties several thousand dollars.

The tenant is hoping that the landlord will settle before trial, or that he can prevail at trial because of the jury.  Additionally, few tenants realize that if the tenant wins, he may receive reasonable attorney fees, if the written rental agreement between the parties provides for these fees (which it probably does). Add insult to injury.

For landlords, Los Angeles Attorney, Dennis P. Block has written a lease agreement that limits reasonable attorney fees to $500. This makes a jury trial economically inefficient for a lawyer to pursue because the tenant's attorney will only have the potential to earning $500 for a trial that may last five days.  Mr. Block recommends that landlords check their rental agreements for attorney's fees limitations. If the rental agreement does not contain one, the landlord ought to serve on all month-to-month tenants a Change of Terms of Tenancy.

Husband and Wife: Till Eviction Do Us Part

Here is a random bit of trivia. Assume a landlord is trying to evict a husband and wife. The landlord ought to name both in the complaint. Further assume that when answering the complaint one of the spouses is unavailable. According to California Code of Civil Procedure section 371: "If a husband and wife are sued together, each may defend for his or her own right, but if one spouse neglects to defend, the other spouse may defend for that spouse's right also." This means that in answering the complaint one spouse may sign the complaint for both (but better have a good reason for doing so). The spouse must first sign using his own signature, then sign by writing something such as "[name] for spouse / co-defendant [spouse's name] per CCP section 371." then sign again. Note that this will not work for all documents.

Eviction Goes Awry With Tenant Self-Help

A poorly written article states that, "[a] Yolo County Sheriff's deputy shot and injured a Davis woman . . . while evicting her from an apartment complex." The tenant apparently threw a knife at a Davis police officer, striking him in the head without causing any injury. If this former tenant didn't have a lawyer before, I bet she wants one now!

Landlords and tenants should never use self-help remedies. For landlords, this includes threatening the tenant, changing the locks, shutting off the utilities, physically removing the tenant or his possessions, etc. By engaging in self-help the landlord is giving the tenant defenses to the eviction and causes of action for a possible trespass, assault, battery, slander or libel, intentional infliction of emotional distress, and wrongful eviction lawsuit against the landlord.

For tenants, see the behavior described above as an example of what not to do. The bottom line is that self-help is illegal in California (California Civil Code section 789.3), and most other states.

Rent Control and Illegal Leases

Derek Bok, former President of Harvard University said, "If you think education is expensive, try ignorance." This rings true when it comes to rent control. A California Court of Appeal in Espinoza v. Calva,  ruled that in rent controlled cities until a building official has issued a certificate of occupancy to a landlord, the occupancy is unlawful and thus the lease is an illegal contract. This may mean that the landlord cannot collect past due rent from the tenant (although he can probably still get the tenant evicted).


Regardless, most rent control ordinances forbid a landlord from charging rent until the property is registered with the city. For example, the Los Angeles rent control ordinance section 151.11 states: "A tenant may withhold the payment of any rent otherwise lawfully due and owing . . . until the landlord has . . . ." first procured and served on the tenant or displayed in a conspicuous place a valid written registration statement from the housing department. Once a landlord has done this, "the tenant becomes obligated to pay the current rent and any back rent withheld.

Rent Control

Some cities and municipalities have enacted rent control. Rent control laws generally limit how much a landlord can increase the rent, how often he can increase the rent, limit his late fees, and require him to give a reason when asking a tenant to move. Cities usually enact these ordinances because there is a shortage of housing, that in turn results in a low vacancy rate, and consequently the rental values increase to meet the demand. When combined with speculative home buying, flipping, etc. this tends to increase the rental values at a more rapid rate. Bureaucrats, in their infinite wisdom, thought that rent control should be imposed to protect the poor and downtrodden by making rent "fair."

Regardless, here in Los Angeles county, rent control is something that landlords need to understand, and something that tenants can use to their advantage to prevent eviction. Although not all of Los Angeles County is subject to Rent Control, most of Marina Del Rey is not. But cities such as Los Angeles, Santa Monica, Beverly Hills, West Hollywood, Burbank, and Glendale are under rent control.

For example, Los Angeles enacted the Los Angeles Rent Stabilization Ordinance (LARSO) in 1978. Thus any multi-unit property built before December 1978 is subject to rent control. Multi-unit means apartments, condominiums, town homes, duplexes, two or more dwelling units on the same lot, mobile homes and mobile home pads, and rooms in a hotel, motel, rooming house or boarding house occupied by the same tenant for sixty  consecutive days or more. Anyone can check when the landlord's building was built at the Los Angeles Zoning Information and Map Access System (ZIMAS) website. The Los Angeles Department of Building and Safety also provides similar information at their website.

Likewise, Santa Monica enacted rent control (SMRCCA) on April 10, 1979. So most residential buildings in Santa Monica built before April 10, 1979 are covered by rent control. Any tenant can check on the rent control status, rent levels, and amenities of his rental property by calling a Rent Control Information Coordinator at: (310) 458-8751.

If the rental unit is subject to rent control the landlord must make register his property. But this alone is not sufficient, a landlord should serve a copy of the registration on the tenant when the tenant signs the lease; post a copy of the registration a common area (like next to the mailboxes in an apartment); send a copy to each tenant once a year; and give a copy to the tenant before serving the three-day notice to pay or quit (or attach it with the three-day notice).

Unlawful Detainer Registries

Aside from being forced to move, the effect of an eviction in the information age is now even more far reaching. Private companies like First Advantage SafeRent comb court records and collect the names of defendants in unlawful detainer actions. Every landlord should check this database before renting his property to a tenant. Thus, it is in the tenant's best interest to stay off of this list.

In an unlawful detainer action the record will remain sealed for sixty days from the date that the complaint was filed. After those sixty days the unlawful detainer becomes public record per CCP 1161.2 and the tenant's name will likely appear on the registry unless the tenant wins his case, or the case is dismissed. In the event that the tenant loses his case, he will want the record sealed. To do so, the tenant, in his answer to the unlawful detainer, should ask the court "to seal the record before and after the judgment or dismissal."

Tenant's names remain on the list for seven years!

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 he was evicted 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 attaches 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 these are NOT to be construed 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 short period of time. As I stated in my previous 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 as to what the landlord wanted.
12. Building code violations have existed for over six months, consequently 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.

The Unlawful Detainer Answer

Once the tenant receives an unlawful detainer complaint he should consult with a lawyer immediately. This is particularly important since the landlord will most likely already have hired an attorney to draft the complaint (and to represent him in court). A local bar association will be able to provide a list of attorneys.

However, some tenants represent themselves in pro per. This is an abbreviation for in propria persona, which is latin for one's own person or on one's behalf. This is usually a fast way for a tenant to get himself evicted.

In California, as the complaint, the courts offer a form-fillable unlawful detainer answer. The answer is where a tenant would admit or deny the allegations in the landlord's complaint. It is also the proper place for the tenant to raise affirmative defenses.

The Unlawful Detainer

Assuming that the three days has passed, the landlord will file an unlawful detainer action in superior court. In California, the courts offer a form-fillable version. Since the landlord will file the lawsuit, he is the plaintiff or petitioner and the tenant is the defendant or respondent. The plaintiff must be served with the complaint (the lawsuit). Contrary to popular belief,  in an unlawful detainer action, justice is swift. The tenant usually only has five days to file a response to the complaint. The five days begins when the landlord serves the unlawful detainer summons and complaint on the tenant.

However, I have been told that occasionally unscrupulous landlords will file the summons and complaint with the court but not serve it. They will commit perjury by telling the court that it was served and request a default judgment against the tenant. Thus the tenant automatically looses his case and the sheriff will post a five-day notice to vacate the rental unit.


The tenant's response to the complaint is called an answer. If the tenant fails to respond, the landlord will go to the court and ask for a default judgment. This means that the landlord wins the lawsuit because the tenant did nothing, obviously this is not a desirable position. Thus, it is best to file and answer to the complaint.

After the tenant files his answer with the court, the court clerk will set a date for a hearing. At the hearing, the trial judge will listen to both the landlord and the tenant and allow each to present evidence. If the landlord wins the court will issue a writ of possession. This means that the tenant will have five days to leave to rental property before the sheriff throws him out.

So if the tenant is served with an unlawful detainer complaint, he will want to file and answer in the court and raise defenses.

Respond To The Three-Day Notice

So you've been served with a three-day notice and you know exactly what it is from reading my last post. Now you must respond to the notice.

The tenant's easiest response is to pay the rent according the terms of the notice or to correct the lease violation. Remember that at this point the landlord can only demand the rent not paid. The notice is legally ineffective if it demands more rent than is actually due, includes late charges, unpaid utility charges, dishonored check fees, or interest. However, I understand that any tenant with integrity, and money, would have paid his rent on time. Assuming that the tenant cannot pay his rent or cannot remedy the violation, time is of the essence because after the end of the third day, the landlord no longer has to accept his tenant's money and can sue his tenant.

First, the tenant ought to determine whether he was served properly.  Service is a statutory procedure to ensure that the tenant actually receives the notices and documents that are required by law. There are three ways to serve: 1) personal service; 2) substituted service; or 3) by posting and mailing.

1. Personal service is handing the notice to the tenant, or placing it at his feet if he refuses to accept it. The three-day period starts the day after the tenant receives the notice.
2. Substituted Service is handing the notice on a person of suitable age and discretion (i.e., an adult or teenager who lives in the house) and mailing a copy of the notice to the house. The three-day period begins after both steps have been completed.
   
3. Posting and mailing is taping a copy of the notice to the front door and mailing a copy to the house. The three-day period begins after the notice was posted and mailed.
   

If the tenant was not served properly this would  be his first line of defense.

The Notices

There are several types of notices that a landlord can give a tenant.

Notices to Quit or Vacate.
In California, if the tenant agreed to a month-to-month tenancy, the landlord can serve a thirty-day notice to quit if the tenant has lived in the unit less than one year (unless the unit is in a rent controlled city like Los Angles or Santa Monica). If the tenant has lived there for more than a year, the landlord must serve a sixty-day notice to quit.

Three-Day Notice to Pay or Quit. 
After the tenant has failed to pay rent, the landlord will give a three-day notice to pay or quit. This is notifying the tenant that he has three days to pay all the past-due rent (pay) or to leave the property by the end of the third day (quit). Even if the tenant decides to leave, he still must pay the landlord the past-due rent. Now, there are a few exceptions, but I will discuss those in a later post. The three-day notice must be properly served on the tenant.

The notice must conform to statute to be valid. For instance in California, under Code of Civil Procedure (CCP) section 1161(2), a notice must:

1. Include each tenant who signed the rental agreement and pays the rent, or both.
   
2. State the exact amount of rent that is then due. A three-day notice cannot include late charges or penalties.
3. Include the property address.
4. Include the date of the notice.
5. Include a person (or company) to pay rent to and contact information such as that person's phone number, the address where payment should be made and hours when payment may be received.
   

If the tenant pays the rent, then the tenancy continues. If the tenant fails to either pay all the past due rent or to leave then the next step is for the landlord to file an unlawful detainer action. This is a lawsuit, so there are some significant ramifications for the tenant (which I will discuss later).

It is important to act quickly, because once the three days have passed, the landlord has the option of: (1) accepting the rent and thereby automatically waiving his right to evict his tenant for failing to pay rent; or (2) refuse to accept the rent and file an unlawful detainer action.

Regarding the address where the rent should be tendered, the landlord should use a physical address (as opposed to a post office box). Because when a landlord sues a physical address the rent must be paid within the three day period, but when he uses a post office box the payment must be postmarked within the three days.

Three-Day Notice to Cure or Quit.
If the tenant has violated the lease or rental agreement and the problem can be fixed (i.e., tenant is subletting the unit, the unit is in disarray, or some other violation of the agreement), the landlord can ask his tenant to correct the violation within three days or move out.

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.