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.