Affirmative defenses to unlawful detainers (evictions) in California
In part one of this blog post, several affirmative defenses were listed that may be used by a defendant in an unlawful detainer (eviction) proceeding. This blog post lists the remaining affirmative defenses.
A. Gives written or oral notice of the problem, and
B. Waits a reasonable period of time for the landlord to make the repair.
Thirty days is presumed a reasonable time period, but a shorter notice period is acceptable when the circumstances justify it. Repair-and-deduct rights may be exercised only twice in any 12-month period. Additionally, repair costs may not exceed one month’s rent.
A residential tenant may successfully defend a UD action for nonpayment of rent on the ground that he or she properly invoked the repair-and-deduct remedy but the landlord failed to give proper credit.
Title at Issue:
A tenant may raise the question of title to the property as an affirmative defense to a UD action following a landlord’s quiet title action against the tenant. See Greenhut v Wooden (1982) 129 Cal. App. 3d 64, 69–70. A title defense is also available in an eviction following the sale of property in a foreclosure.
The issue before a UD judge, however, is limited to determining who is the owner of record. A UD action generally is an unsuitable forum for trying complicated ownership issues because of its summary nature. See Mehr v Superior Court (1983) 139 Cal.App. 3d 1044, 1049.
The concept of a “constructive eviction” exists under the principle of a breach of the covenant of quiet enjoyment that is implied in every rental agreement. A tenant may assert this ground as an affirmative defense when the landlord’s actions or omissions so interfere with the tenant’s right to “peaceful and beneficial possession” of the rental unit that the unit or a portion of it becomes uninhabitable. Examples include:
A. Extreme rain damage to one or more rooms of a unit caused by a leaky roof that the landlord refused to repair;
B. Excessively noisy renovations at the premises at unreasonable hours; and
C. Persistent harassment of the tenant by the landlord.
See Stoiber v Honeychuck (1980) 101 Cal.App 3d 903, 925–926; Clark v Spiegel (1971) 22 Cal..App 3d 74, 79–80.
A tenant may affirmatively defend against a UD action on the ground that the landlord unlawfully influenced the tenant to vacate. A landlord may not engage in certain conduct with the purpose of influencing a tenant to vacate a rental unit. The conduct includes
A. Theft or extortion in violation of applicable law.
B. Willful threats, menacing conduct, or the use or threatened use of force (that would create an apprehension of harm in a reasonable person) that interferes with the tenant’s quiet enjoyment of the premises, in violation of Civil Code § 1927.
C. A significant and intentional violation of Civil Code § 1954, which governs the circumstances under which a landlord may enter the rental unit.
Other defenses that may be applicable in certain cases include:
A. Overpayment of rent, entitling the tenant to an offset. See Minelian v Manzella (1989) 215 CA3d 457, 463 465;
B. Tenant’s timely cure of a breach or lack of opportunity to cure a breach pursuant to a 3-day notice. See Feder v Wreden Packing & Provision Co. (1928) 89 Cal.App. 665, 672;
C. Landlord’s refusal to accept a timely tender of rent. See Strom v Union Oil Co. (1948) 88 Cal.App 2d 78, 81;
D. Breach of only an implied covenant by the tenant. See Keating v Preston(1940) 42 Cal.App. 2d 110, 118 119;
E. Landlord’s violation of the Subdivision Map Act. See Adler v Elphick(1986) 184 Cal.App 3d 642, 645 646;
F. Landlord’s failure to install and maintain locks;
G. Landlord’s failure to give the tenant required notice of demolition; and
H. Landlord’s demanding “key money” to initiate or renew a commercial lease.
The use of affirmative defenses by a tenant in their answer to an eviction lawsuit is crucial as it is the only way that the tenant can have the Court hear their side of the story. If the affirmative defenses are not listed in the answer it is extremely unlikely that a Judge would allow their use at trial.
The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in civil litigation in California Courts. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
