Affirmative defenses to California unlawful detainers (evictions) , part one
There are numerous affirmative defenses available to a tenant to an unlawful detainer (eviction) proceeding in California. But one of the first things that any tenant served with a three (3) day notice to pay rent or quit should do is closely examine the notice. The notice must contain the following information:
1. The exact amount of rent due. If the amount is overstated the notice is fatally defective and will not support an eviction proceeding. See Ernst Enter., Inc. v Sun Valley Gasoline, Inc. (1983) 139 Cal.App.3d 355, 359. This does not apply to commercial tenancies. But even with a commercial tenancy, a demand that exceeds 20 percent of the amount due is defective and will not support a UD judgment. See WDT-Winchester v Nilsson (1994) 27 CA4th 516, 534.
2. It must not be served until after the stated amount of rent becomes due. In other words it cannot be served on the date the rent is due. See Lydon v Beach (1928) 89 CA 69, 74.
3. It must have the entire street address of the premises, must have the name, address and phone number of the person to pay the rent to, as well as the days of the week and hours in which the rent may be paid. If it does not state these items the notice is defective.
If the three day notice is defective the best course of action is probably to wait until an eviction proceeding is filed and then either use the defective notice as an affirmative defense in the answer, or file a demurrer to the complaint.
The landlord must wait the entire three days to allow the tenant to comply with the notice. If the last day to comply is a Saturday, Sunday or Court holiday the tenant has until the end of the next business day to comply with the notice.
Once the tenant has been served with the Summons and Complaint they have five (5) calendar days to respond. Court holidays are not counted in calculating the five days, and if the last day to respond is a Saturday, Sunday or Court holiday the tenant has until the end of the next business day to file a response with the Court.
The tenant may file the following pleadings in response to the eviction Complaint.
1. An Answer. The Judicial Council form Answer may be used, and must be verified as well;
2. A Demurrer; and
3. A Motion to quash service of the summons, or to stay or dismiss the action.
If an Answer is used affirmative defenses may be asserted including the following:
Breach of the implied warranty of habitability:
Every residential rental agreement has an implied warranty of habitability that is independent of the tenant’s obligation to pay rent. See Green v Superior Court (1974) 10 Cal. 3d 616, 631 632; Fairchild v Park (2001) 90 Cal.App.4th 919, 927, 928.
This means that a landlord of residential premises must put the premises in a condition fit for human occupancy and must repair all subsequent dilapidations that render the premises untenantable. The landlord’s duty to the tenant to provide habitable premises is nonwaivable.
A breach of the warranty of habitability is available as an affirmative defense for a tenant in a UD action for nonpayment of rent. But it is not available in a UD action based on a 30-day notice to quit. Green v Superior Court, supra, 10 Cal.3d at 631; Knight v Hallsthammar (1981) 29 Cal.3d 46, 57.
Waiver of the three day notice to pay rent or quit:
If the landlord waived, changed, or canceled a notice to quit, the tenant has an affirmative defense to a subsequent UD action. For example, if the landlord accepts a partial payment of back rent after serving the tenant with a 3-day notice to quit, he or she may have waived the original notice. See EDC Assoc. Ltd. v Gutierrez (1984) 153 Cal.App 3d 167, 170.
Residential landlords must not take any of the following actions in retaliation for the tenant’s exercising his or her legal rights:
A. Increasing rent,
B. Decreasing services, or
C. Causing a tenant to quit the rental property involuntarily.
A tenant may not waive his or her rights under the law.
A tenant has a valid affirmative defense if he or she can show that the landlord retaliated against him or her in violation of Civil Code § 1942.5.
In addition, both residential and commercial tenants have a common-law affirmative defense for retaliatory actions by the landlord. See Barela v Superior Court (Valdez) (1981) 30 Cal. 3d 244, 251;
If the tenant proves retaliation by a preponderance of the evidence, he or she is entitled to a judgment of possession. See S.P. Growers Ass’n v Rodriguez (1976) 17 Cal. 3d 719, 724.
The claimed retaliatory action must have occurred within 180 days of the tenant’s lawful exercise of rights. Furthermore, the statutory defense may be used only once in a 12-month period. No limit applies to the common-law defense of retaliatory eviction. See Glaser v Meyers (1982) 137 Cal.App. 3d 770, 774.
A tenant who successfully defends a UD action on the ground of retaliatory eviction is entitled to recover both actual and punitive damages in addition to retaining possession of the property.
Landlord’s breach of the rental agreement:
If the landlord materially breaches an express covenant in the rental agreement, the tenant has a valid defense to an unlawful detainer based on nonpayment of rent. The tenant’s obligation to pay rent and the landlord’s obligations under the agreement are dependent covenants. See Green v Superior Court (1974) 10 Cal. 3d 616, 634.
Breach of local licensing regulations:
When local licensing requirements are intended primarily for public protection, contracts within their purview that are executed between unlicensed persons are unenforceable as a matter of public policy. See Espinoza v Calva (2008) 169 Cal.App. 4th 1393, 1400.
What this means is that if a landlord fails to obtain a certificate of occupancy for his or her rental units before entering into a rental agreement with a tenant, the rental agreement is unenforceable. The tenant thus has a defense to an eviction based upon nonpayment of rent. But this does not mean the tenant is entitled a judgment for possession, the defense only operates to bar the landlord’s recovery of rent based on the unenforceable agreement. See Espinoza v Calva, supra at 1400.
If the landlord has discriminated against the tenant in violation of the laws or of the federal or state Constitutions, the tenant may assert discrimination as an affirmative defense against a UD action. See Department of Fair Employment & Housing v Superior Court (2002) 99 Cal.App 4th 896, 899–902; Smith v Fair Employment & Housing Comm’n (1996) 12 Cal.4th 1143, 1155–1161, 1176, 1179; Marina Point, Ltd. v Wolfson (1982) 30 Cal. 3d 721, 724–726.
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.
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.