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1Dear [FIRSTNAME], This issue of the newsletter will discuss the remaining affirmative defenses to an unlawful detainer (eviction)

proceeding in California that were not discussed last week. The use of affirmative defenses by a tenant in their answer to an eviction lawsuit is critical as it is the only way that the tenant can have the Court hear their side of the story. Any tenant who has been served with a summons and complaint in an eviction proceeding should carefully review the complaint and their particular situation to determine which affirmative defenses, if any, would be applicable to their particular case. The remainder of the more commonly used, and several of the not so commonly used, affirmative defenses include: 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. If a rental unit is dilapidated to the point of not being habitable, the tenant has the right to make repairs and deduct the costs from the rent or to vacate the premises without being liable for further rent, if the tenant gives written or oral notice of the problem, and 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 12month 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. A tenant may raise the question of title to the property as an affirmative defense to a UD action following a landlords quiet title action against the tenant. A title defense is also available in an eviction following the sale of property such as a foreclosure sale. 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. 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 landlords actions or omissions so interfere with the tenants right to peaceful and beneficial possession of the rental unit that the unit or a portion of it becomes uninhabitable. Examples would include, extreme rain damage to one or more rooms of a unit caused by a leaky roof that the landlord refused to repair; excessively noisy renovations at the premises at unreasonable hours; and persistent harassment of the tenant by the landlord.

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 Theft or extortion in violation of applicable law, 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, 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: Overpayment of rent, entitling the tenant to an offset; Tenant's timely cure of a breach or lack of opportunity to cure a breach pursuant to a 3-day notice; Landlord's refusal to accept a timely tender of rent; Landlord's failure to give the tenant required notice of demolition; and Landlord's demanding "key money" to initiate or renew a commercial lease. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: 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: View numerous sample document sold by the author: 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.