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Legal • September 1, 2004

Landlord/Tenant Law 101: Defenses to Eviction

Landlord/Tenant Law 101:  Defenses to Eviction

By:  David M. Wilson

Elsewhere in this issue, Jim Smith tells the story of Claire Morrison, an elderly homeowner who returned from the hospital only to find her house occupied by tenants that had been invited in by assumedly well-meaning relatives.  Though her case would seem airtight, Claire died homeless, another victim of the Maginot line of tenant defenses provided by Berkeley and California law.

In most jurisdictions, evictions are permitted where (a) the rent has not been paid, or (b) the terms of the lease have been violated, or (c) the lease term has expired.  The process is easy where the tenancy is month to month and the market is firm: the landlord may raise rents at the end of the lease term, and evict if the tenant declines to pay the increased amount.  As Jim notes, this is often the most efficient way to handle the obstreperous, wasteful or slow-paying tenant, and is nearly always preferable to court proceedings.

Berkeley is different:  here there has been a policy decision that existing tenants have a right to stay on indefinitely at their original rents in nearly all cases.  Rent board regulations also assume that most eviction attempts are in bad faith, i.e. subterfuges for forcing the tenant out and jacking up the rent to the successor.  This assumption in turn is cited as justification for a battery of added tenant protections which effectively make evictions difficult, time-consuming and expensive even where clearly justified. 

Here are the high points (as always you should consult with a professional with regard to specific cases):

The alleged violation, with few exceptions, must be of a specific lease provision:  As elsewhere in California, a Berkeley tenant who fails to pay rent or violates a material term of an existing lease may be evicted.  For this reason the landlord should be careful to list in the lease every conceivable reason why a tenant may be found undesirable:  excessive noise, public drunkenness, criminal or disorderly conduct while on premises, property damage, harassment of other tenants or neighbors, cluttering of common areas, open fires or barbecues,  overnight guest policies, etc.  While California law allows eviction for violation of some of these standards, it never hurts to have them in the lease as well.

The alleged violation must be noticed in writing to the tenant:  Unlike most other places in California, Berkeley has enumerated the “good causes” which justify eviction (see the Rent Control Ordinance at Section 13.76.130).  The notice to the tenant must specify which cause you are invoking and must be filed with the rent board.  A failure to do this is a defense to the eviction.

Expiration of the lease does not constitute “good cause”:  In Berkeley the expiration of the lease term or the existence of a simple month to month tenancy does not justify eviction except in narrowly defined circumstances.  One of these is an owner move-in;  another is the need to make substantial repairs.

“Owner move-ins” only rarely constitute “good cause”:  The owner move-in exception is the result of state legislation and court actions.  Berkeley regulations strive to make the exception as narrow as possible.  There are complications wherever the landlord has other rental property in the City, or where the landlord fails to move in within three months, or fails to stay for at least 24 months, or where the tenant is of a certain age, or is handicapped. Sometimes, the landlord will have to post cash for “relocation assistance”.  A failure to follow any of the detailed requirements is a defense to the eviction [this is a separate subject and will be treated in greater detail in a future issue].

Acceptance of rent may be a defense to eviction: Generally in California any formal defect in the three day notice is a defense to eviction.  Likewise any acceptance of rent by a landlord who has knowledge of a lease violation may be found to be a waiver of the landlord’s right to evict on account of that violation.

Failure to comply with the rent stabilization ordinance and regulations is a defense:  In Berkeley, any failure, no matter how slight, to comply with the rent control rules (failure to register; failure to pay all fees, even disputed ones;  violation of rent ceilings; etc.) is a defense to eviction.  It is not unknown for a tenant who has himself failed to pay rent, to invoke the landlord’s alleged violations in other buildings, or as to other tenants, as a defense to his own breach.

Abandonment by the original tenant can be hard to prove: Often a three day notice will prompt a tenant to leave the premises.  Or the landlord may visit one day and find that the original tenant no longer appears to live in the unit, which is instead occupied by strangers who introduce themselves as “sublessees”, “assignees” or “roommates”.  California law deals, not very clearly, with abandonment by an original tenant and establishes a procedure for written notice, and a response within a specified period in order to avoid termination of the tenancy.  The rights of the third party occupants in such situations are very much in the air (see Greg McConnell’s article on A.B. 2088 in last month’s newsletter).  Once again, any slip in following the prescribed procedures may be a defense to eviction.

Retaliation is a defense:  Both Berkeley and California allow a tenant to argue that an eviction is in retaliation for some sort of whistle-blowing by the tenant.  In Berkeley any record of a tenant complaint within the previous six months raises a presumption that the eviction is in bad faith.  This provision creates an incentive for tenants to make frivolous allegations when they sense that their continued occupancy is in jeopardy.

An alleged lack of habitability is a defense:  Berkeley’s ordinance and regulations strengthen this defense.  It is particularly subjective:  when does a simple code violation (knob and tube wiring in old construction) materially impact the tenant’s right to heat, water, and a non-leaky roof over his head?

Berkeley tenants have an abundance of tools with which to delay eviction, or even to avoid it entirely.  Jim Smith points to the real world solution: landlords often become super-picky about choosing tenants, and may even  keep units off the market rather than rent to someone with questionable references, an unclear background, or no obvious livelihood.  Unhappily this may threaten other legitimate social goals.  But there really is little choice given the present state of the law in our town. 


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