What’s to Defend?
The Deal with Contested Evictions.
More and more tenants are becoming adept at maneuvering the legal system. One sure way to delay the eviction process is to file a response. The court doesn’t require the tenants to say why they are answering, only that the minimum written reply be filed with the court within the time period allowed by law. Filing this response does not mean the tenant wins the case. But, the law states that the tenant is entitled to due process, so he or she will get their day in court.
We’ve taken a look at about 1,000 recent contested eviction cases at our office to find out the most commonly stated defenses contained in a tenant’s answer to the complaint for unlawful detainer. In our survey, if there was more than one defense stated in the answer, we’ve put it in the one category that represents the main defense stated by the tenant.
Habitability
Breach of the warranty of habitability is the most frequently used and yet least successful defense stated. It seems that tenants are suddenly finding defects in the premises when the rent is due and unpaid. In fairness, breach of the warranty of habitability is a good defense where the premises are substantially lacking in basic services. However, even in these cases, we have to ask, if it’s that bad, why don’t you just move out? Still, the owner needs to keep the rented premises in habitable condition. It is a good practice to respond in a timely fashion to all legitimate repair requests. In so doing, the tenant will not be able to rely at all on the defense that the premises were uninhabitable.
No Defense Stated
The next most frequently filed answer is one that contains no stated defense at all! A bare-bones answer says nothing. Frequently, the tenant will admit all the allegations in the complaint and really has nothing left to say at trial. This is particularly frustrating since it is obvious the answer was filed solely as a delaying tactic. Yet, the clerks of the court are required to accept a “blank” answer, even though there are no defenses stated.
Defective Notice
A tenant will sometimes raise the fact that the notice overstates the rent or includes late charges or NSF charges. Perhaps it states the wrong period for which rent is due. Care must be taken to make sure the notice accurately states the amount of rent due and is served correctly. This category includes tenants who declare on their answer that they were never served with the notice. Make sure to comply with service requirements on all notices.
Waiver of Notice
Sometimes the tenant will claim in their unlawful detainer answer that the owner waived the notice-usually a three day notice to pay rent or quit. The tenant will claim the owner verbally agreed to extend the payment date and then breached this verbal agreement by filing the unlawful detainer as soon as the three day notice expired. Don’t say anything that would go against the effect of a three day notice. Avoid making comments like, “This is just a formality” and “Don’t worry about it.”
Retaliatory Eviction
This defense is used to try to defeat a thirty day notice. The landlord has the right to give a thirty day notice for no reason, and yet, tenants like to accuse the landlord of acting vindictively based on the exercise of a right. In several issues of our newsletter LANDLORDS AND THE LAW, we have addressed the issue of retaliatory evictions in detail. Tenants are rarely successful in this defense because the landlord will indeed have good faith business reasons that are not retaliatory in order to support a thirty day notice.
Discrimination
The discrimination defense comes in a variety of forms. The tenant may be basing it on the traditional categories that are protected: race, creed, national origin, marital, or familial status. It is important to remember never to terminate tenancies based on these protected classifications. On the other hand, all tenants must comply with the rules and regulations of the complex—and everyone must pay rent on time.
Other
After all else fails, we see tenants asking for leeway from the court based on hardship, saying they are financially strapped and cannot vacate the premises. For example, answers will say Defendants were robbed, their welfare got cut off, or they simply don’t have the money and lost their job. None of these are legal defenses and the court will not recognize them. Yet the tenant may believe that somehow justice will prevail and they will be entitled to extended free housing based on their financial condition. They find out otherwise when the matter come to trial. As you can see, if your tenants are street smart and know a little about landlord/tenant law, they can easily string you out by filing an answer with the court, even though they eventually lose. Without a doubt, the biggest gripe about the unlawful detainer process is that it takes too long. Even though it’s one of the fastest legal proceedings available in California, it never seems fast enough, especially when your non-paying tenants are “getting deeper into your pocket” as each day goes by. One of the most common questions we receive is, “Isn’t there a faster way to evict a tenant?” Unfortunately, the answer is, “No.”
A tenant will file an answer with no merit and eventually lose at trial, so contesting evictions simply delay the inevitable. Fortunately, there are some specific things you can do to speed things up. The best way to avoid excessive delays is to make sure you do everything right the first time. Here are a few suggestions:
- When preparing the notice, make sure it’s filled out correctly. Any defect will cause a cancellation of the case.
- Be sure you individually serve everyone listed in the notice (i.e. if both husband and wife are listed on the notice, don’t try to take a shortcut by serving the husband only—serve them both)
- Make sure the process server has all available information about where and when to serve the summons and complaint. Remember, your tenants have five days to responds but the clock doesn’t start ticking until your tenants are properly served.
- If there are extra unknown occupants or substantial traffic in and out, consider serving a pre-judgment claim of right to possession so you will avoid a third party claim of right to possession by a so-called roommate.