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1Dear [FIRSTNAME], This issue of the newsletter this week is the use of affirmative defenses to an unlawful detainer (eviction

) proceeding in California. Next week’s issue will discuss the remaining affirmative defenses that are not discussed in this issue. There are many possible affirmative defenses that can be asserted, and while not all of them can or should be used in a particular case this issue, and next week’s issue will discuss the more commonly used ones. The first affirmative defenses discussed relate to defects in the three day notice. One of the first things that anyone served with a three day notice to pay rent or quit should do is closely examine the notice. The notice must contain the following information. The exact amount of rent due. If the amount is overstated the notice is fatally defective and will not support an eviction proceeding. 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. It must not be served until after the stated amount becomes due. In other words it cannot be served on the date the rent is due. It must have the entire street address of the premises, state the time period for which the rent is overdue, 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 the items the notice is defective. It must have the entire street address of the premises, and 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. And if the address given for the payment of rent does not allow for personal delivery then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner), or the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution (provided that the institution is located within five miles of the rental property), or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure. So a tenant who cannot personally pay the rent because the address given is a post office box should mail the rent check, and get proof of mailing from the post office. That way the rent is considered paid on the date it is mailed. 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. Other affirmative defenses may be asserted including the following: Every residential rental agreement has an implied warranty of habitability that is independent of the tenant's obligation to pay rent. This means that a landlord of residential premises must put the premises in a condition fit for human occupancy and must repair all subsequent problems that render the premises untenantable. The landlord's duty to the tenant to provide habitable premises cannot be waived, and any such purported waiver is null and void, and of no force or effect. A breach of the warranty of habitability is available as an affirmative defense for a tenant in a UD action for nonpayment of rent. Note that it is not available in a UD action based on a 30-day notice to 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. Residential landlords must not take any of the following actions in retaliation for the tenant's exercising his or her legal rights such as Increasing rent, decreasing services, or 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. 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. 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.

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. Next week’s issue will discuss the remainder of the commonly used, and several not so commonly used affirmative defenses. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The author's website: http://www.legaldocspro.net View numerous sample document sold by the author: http://www.scribd.com/legaldocspro Copyright 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.