Welcome to Tenant Defenders

Tenant Lawyer – Marc D. Whitham

Represents Tenants and Consumers Throughout San Diego.


San Diego Tenants' Rights Attorney

 

My name is Marc D. Whitham and I’m pleased to welcome you to Tenant Defenders.  I am a tenants’ rights attorney that specializes in defending against wrongful evictions.  I hope that you will not hesitate to contact me directly to see if I can help you with your situation. Whether you are facing eviction, or need to know how to assert your rights as a renter, I am available to speak with you.

Many tenants mistakenly believe that they have no options when they run into a dispute with the landlord, or that they cannot afford a good lawyer.

Legal representation does make a difference, and while I cannot offer free consultations, I am happy to speak with you before you to commit to paying any fees.  If you are working with a limited budget, then let me know what you can afford.

Don’t despair.  Assistance is available and it will make a difference.  I am an experienced litigator who is not afraid to take aggressive action against landlords attempting to abuse the court system, or who refuse to live up to their obligations under the law.

Often times, a good tenant lawyer will help his clients to avoid facing a confrontation in court, and eliminate the risk of facing eviction. I have counseled thousands of tenants regarding their housing rights, and defended hundreds of renters facing trial.

Even if you are not facing a wrongful eviction, but simply need your landlord to take action and obey the law, you will benefit from the experience of an attorney who specializes in tenants rights.   When necessary, I will not hesitate to bring legal action against negligent and abusive landlords for damages.

Please take a look around the website.

If you would like to speak with a lawyer directly,

then Contact Tenant Defenders today.

 

 619-573-9582

How to defend an unlawful detainer case in California

I have compiled here a small summary of some of the most common defenses to unlawful detainer cases, more commonly known as an eviction, for tenants residing in California. Nothing in this post is meant to be legal advice for any specific case. Nor is it an all-inclusive list. There are many other reasons why a tenant may prevail in an unlawful detainer that are not included here.

If after reading this post, you believe that you have a defense to the unlawful detainer, then please click here, to schedule a consultation to discuss your case.

In order to know whether or not you have a defense to your unlawful detainer that will hold up in court, it is important to understand what the plaintiff must prove to the court in order to win the case.

First, the plaintiff must be able to show that he is the owner of the property, or that the person testifying in court is acting with the authority of the owner of the property. Usually the court will accept the plaintiff’s testimony on this point without asking for any further proof, and in most cases the court will not allow a tenant to argue about whether the plaintiff is the owner of the property.  This is especially true if the plaintiff has a written rental agreement signed by the defendant.

There are cases, however, where the person, or property manager attempting to evict is not the actual owner of the property and does not have any contract or relationship with the tenant. If this describes your situation, then you may have a defense.

Second, the plaintiff must show that there is a landlord/tenant relationship between the parties. If you have signed a written rental agreement with the plaintiff, or if the plaintiff has ever accepted a rent payment from you on behalf of the landlord, then this will usually not be a hard point for the plaintiff to establish.  If the party that has filed the unlawful detainer is not your landlord or an agent acting on behalf of your landlord, then they don’t have the right to evict you (the legal term is that the plaintiff lacks standing). If you are a subtenant, then the tenant you rented from, rather than the landlord, will have standing to bring an eviction.

If the plaintiff can establish that he or she is the landlord of the defendant, then the next thing the court will want to know is why the case was filed. The information explaining why the plaintiff wants to evict the tenant must be contained in a written notice. There are several different kind of notices that may allow a plaintiff to bring an unlawful detainer, but the most common are notices demanding the payment of rent and notices to terminate a tenancy. Whatever the notice is, it must be attached to the complaint, it must be dated, it must accurately describe the property where the tenant lives, and it must give the tenant a set period of time to act.

If the reason for the eviction is for nonpayment of rent, then the notice must give the tenant at least three days to pay the rent. The first day is the date following the date the notice was given to the defendant. Some rental agreements require that the landlord give more than three days to pay the rent when notice is given. If that is your case, then the court should enforce that rule under the contract, but any attempt to shorten the period to less than three days is invalid under California law.  If the notice is a notice to terminate, then it must give a minimum of thirty days under normal circumstances. If the tenant has lived at the residence for more than one year, then it must give at least 60 days for the tenant to move. If you live in the City of San Diego at the same residence for more than 2 years, then the notice must explain why the landlord wants to evict you. For more information about the San Diego Tenants’ Right to Know Ordinance click here.

Some of the most common reasons why a notice may be defective are listed below:

  • The notice includes more rent than is actually owed.
  • The notice does not say where the rent can be paid and who will accept it.
  • The notice asks for other money that is not rent, like a late fee, or money for repairs to the property.
  • The notice does not have a date.
  • The notice has the wrong property address.
  • The notice does not say that you can save your tenancy by paying the amount demanded.
  • If the unlawful detainer case you are dealing with falls into any of the categories described above, then do not hesitate to contact us to see how we can help you succeed in asserting your defense.

This list is not meant to be all inclusive, and there may be other reasons why the notice would not hold up in court. If the notice you have received has any of these problems, contact us to schedule your consultation. Even if this list does not describe the notice you received, you may still have other good defenses. If you suspect that you do, send us a message describing why you think the notice is wrong.

Even when the landlord’s notice has all of the correct language and conforms to the law, the plaintiff must still explain to the court how the notice was served on the defendant. If the notice was given to the defendant, then that is sufficient. Even if the notice was not personally handed to the tenant, the landlord or property manager can still meet the legal requirements for service by posting a copy of the notice on the property and sending a copy through the mail, or by leaving a copy of the notice with an adult residing in the property.

The Plaintiff must then wait for the time given in the notice to expire. If the notice is a three day notice demanding the payment of rent, then the plaintiff cannot file his or her complaint until those three days have passed. Note that it is the first day after the notice is given which starts the counting period. The same rule applies to thirty and sixty day notices. The time permitted under the notice must expire before the landlord attempts to bring the eviction, and the first day of counting does not start until after the day when the notice is served.

The final requirement that the landlord must demonstrate to prevail in court is that the defendant is still living in the property. If the tenant has moved out, then he or she can file an application to the court requesting that the case be changed from an unlawful detainer into a normal civil case. The plaintiff can still go forward with the case if the complaint is asking the court to award money, but it is no longer considered an unlawful detainer, and the defendant can then bring a countersuit against the plaintiff when required.

NOTICE: Simply because a tenant moves out of the property, the eviction case does not go away!

It is the tenants responsibility to make the court aware that he or she has left the rental. Even after the case is converted from an eviction to a normal law suit, it is important to follow up with the court. In many cases tenants have good cause to file a counter suit.

If you believe that you have good cause to file a counter suit against your landlord, you should speak with an attorney immediately after you inform the court you have vacated the property.

If the plaintiff cannot show any of the elements mentioned above, then the defendant should ask the court to enter judgment in his or her favor because the plaintiff has failed to carry the prima facie burden that is required. Again, this is not meant to be a complete list of all the ways a defendant can prevail in court,[/one-half]nor does it mean you should attempt to defend yourself. Even if a landlord has a weak case, more often than not they pay good lawyers. Even you feel you have a strong defense, eviction cases are not small claims court, you can, and should be represented.

Before you attempt to defend yourself in an unlawful detainer case, fill out the form below

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An attorney will contact you in reply to explain how we can help.

San Diego Tenants Right to Know Protections

Are there any laws in San Diego that prevent a landlord from evicting a tenant?

In California, there are no statewide laws that prevent a landlord from evicting a tenant, provided that the landlord gives the appropriate written notice to terminate. There are many cities that have enacted ordinances to protect tenants and limit how and when landlords can raise rents and evict tenants.  The City of San Diego does not have any rent control, however, The Tenants Right to Know Regulation is a San Diego Municipal Ordinance enacted in 2004 that provides residential tenants with some protection against arbitrary evictions.

The ordinance requires that if a tenant has lived at the same residence for at least two years, then a landlord wishing to terminate the tenancy must provide a written notice that explains why the tenancy is being terminated.  Note that this law does not apply to non-payment of rent cases, which can be brought by a landlord if the rent is due and unpaid after giving three days written notice to the tenant demanding the payment of rent.

The Tenants’ Right to Know Regulation includes a list of permissible reasons why a landlord may evict even a long-term tenant.  If your landlord is trying to evict you for a reason that is not included among the acceptable reasons listed, or doesn’t list a reason at all, then you have a right to demand the reason why the tenancy is being terminated, and if your landlord attempts to evict you with giving a valid reason, then you have a legal defense in court.  Contact a us at www.tenantdefenders.com.

The text of the regulation in full follows below.

San Diego Municipal Code Chapter 9: Building, Housing and Sign Regulations
Article 8: Housing
Division 7: Tenants’ Right to Know Regulations

§98.0701 Purpose of Tenants’ Right to Know Regulations

The purpose of these regulations is to promote stability in the San Diego rental
housing market and limit adverse impacts on long-term residential tenants displaced
and forced to find replacement housing in the expensive and limited San Diego
housing market. The regulations protect the rights of long-term residential tenants by
limiting grounds for their eviction and requiring landlords to provide notice of such
grounds. The rights conferred by these regulations are in addition to any provided in
state or federal law.

§98.0702 When Tenants’ Right to Know Regulations Apply

This division applies to the rental of any rental unit (as defined in section 98.0720) in
the City except as specifically exempted in section 98.0725.

§98.0720 Definitions

The following definitions apply to the administration and enforcement of this
division:
“Condominium” means the same as defined in sections 783 and 1357 of the
California Civil Code.
“Landlord” means an owner, lessor, sublessor or any other person or entity entitled to
offer any residential unit for rent or entitled to receive rent for the use and occupancy
of any rental-unit.
“Resident manager” means a person who resides on the premises and is employed to
perform or to be responsible for the operation and/or maintenance of the rental-units
on the premises.
“Rental-unit” means a room or a group of two or more rooms designed, intended, or
used for human habitation. Rental-units include apartments, condominiums, stock
cooperatives, single-dwelling units, and hotel units not exempted under section
98.0725.
“Single-dwelling unit” means a single detached structure containing one dwelling unit
for human habitation and accessory buildings appurtenant thereto located on a lot or
parcel and all housing services provided in connection with the use or occupancy
thereof.
“Stock cooperative” means the same as defined in California Business and
Professions Code section 11003.2.
“Tenancy” means the right or entitlement of a tenant to use or occupy a rental-unit.

§98.0725 Exemptions

The following shall be exempt from the requirements of this division:
(a) Institutional Facilities. Housing accommodations in any hospital, convent,
monastery, extended care facility, asylum, nonprofit home for the aged,
fraternity, or sorority house, housing accommodations owned, operated, or
managed by a bona fide educational institution for occupancy by its students
or rental-units that require intake, case management or counseling and an
occupancy agreement as part of the occupation.
(b) Agency Owned or Subsidized Units. Any rental-unit owned, operated, or
subsidized by any government agency, and which is therefore subject to
substantially similar or greater state or federal eviction controls.
(c) Rooms Rented to Boarders. A rental-unit in which the landlord owns the
rental-unit, shares kitchen or bath facilities with the tenants, and also occupies
the rental-unit or a unit in the same building as his or her principal residence.
(d) Rental-Units in Hotels, Motels, or Rooming Houses Rented to Transient
Guests which do not qualify as Single Room Occupancy Hotel Rooms
pursuant to San Diego Municipal Code Chapter 14, Article 3, Division 5.
(e) Mobile Homes. Mobile homes subject to Mobilehome Residency Law
(California Civil Code, Chapter 2.5).
(f) Transient occupancies defined by California Civil Code section 1940(b).

§98.0730 Termination of Tenancy

A residential tenancy of more than two years duration shall not be terminated, nor
shall its renewal be refused, except for one or more of the following reasons:
(a) Nonpayment of Rent.
(b) Violation of Obligation of Tenancy. The tenant has violated a lawful and
material obligation or covenant of the tenancy, except that the following may
not be grounds for termination or nonrenewal of a tenancy:
(1) The failure to surrender possession of the rental-unit upon the
expiration of a specified term, except as provided in
section 98.0730(e);
(c) Nuisance. The tenant is committing a nuisance or permitting a nuisance in, or
is causing damage to, the rental-unit or to the appurtenances thereof or to the
common areas of the housing complex containing the rental-unit, or is
creating an unreasonable interference with the comfort, safety, or enjoyment
of any of the other residents of the housing complex.
(d) Illegal Use. The tenant is using or permitting the rental-unit to be used for an
illegal purpose.
(e) Refusal to Renew Lease. The tenant who had a written lease or rental
agreement which terminated on or after April 26, 2004 has refused, after
written request by the landlord, to execute a written extension or renewal
thereof within the written period prescribed by the lease or state law for a
further term of like duration with similar provisions.
(f) Refusal to Provide Access. The tenant has refused to give the landlord
reasonable access to the rental-unit for the purpose of making repairs or
improvements, or for the purpose of inspection as permitted or required by the
lease or by law, or for the purpose of showing the rental-unit to any
prospective purchaser or mortgagee.
(g) Correction of Violations. The landlord, after having obtained all necessary
permits from the City of San Diego, seeks to recover possession of the rentalunit
for necessary repair or construction when removal of the tenant is
reasonably necessary to accomplish the repair or construction work.
(h) Withdrawal of Residential Rental Structure from the Rental Market. The
landlord intends to withdraw all rental-units in all buildings or structures on a
parcel of land from the rental market.
(i) Owner or Relative Occupancy. The landlord, or his or her spouse, parent,
grandparent, brother, sister, child, grandchild (by blood or adoption), or a
resident manager plans to occupy the rental unit as their principal residence.

§98.0750 Notice to Tenant

Any landlord who attempts to terminate a tenancy pursuant to any of the grounds set
forth in section 98.0730 shall provide the tenant a written notice to quit or terminate
which recites the grounds under which the landlord is proceeding. The landlord shall
provide the notice prior to or at the same time as the written notice of termination set
forth in Civil Code section 1946, or a three-day notice described in Code of Civil
Procedure sections 1161 and 1161a, is served on the tenant

§98.0760 Affirmative Defense

In any action by a landlord to recover possession of a rental-unit, the tenant may
raise as an affirmative defense any violation or noncompliance with the provisions of
this division.

If you live in the City of San Diego and have received a notice to terminate your tenancy that you believe violates the City ordinance, then you should talk to an attorney about your situation.

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Security Deposit Law in California

What Every Tenant Should Know about Getting Back Your Security Deposit

I am often contacted by tenants who have questions about their security deposits.  There is a very long statute in the California Civil Code at Section 1950.5 that describes in detail how landlords and property managers must handle security deposits.  The Code section has requirements about how much a landlord can charge as a security deposit.  It also explains what  a landlord must do with a security deposit when a tenant has vacated a house or apartment.   For a complete copy of Code Section 1950.5 click here.

No lease, nor rental agreement may call any deposit “nonrefundable.”

Landlords cannot escape this rule by charging a “cleaning” or “security” or “pet” fee instead of a deposit. Under the law, the security deposit rules apply to any “payment, fee, deposit or charge” that’s intended to cover damage and unpaid rent. It doesn’t matter how it may be labeled in the lease or rental agreement.

California law requires that landlord only use the deposit for specific purpose.

Deductions are allowed “in only those amounts as may be reasonably necessary” for the following four purposes:

1. For money owed towards the payment of rent (default).

2. To repair damage to the premises caused by the tenant (excluding “ordinary wear and tear”).

3. If needed, to clean the premises, after the tenant leaves.

4. When agreed to in the rental agreement, then to pay for the tenant’s failure to restore or replace personal property or furnishings.

Within 21 days after you move out—whether voluntarily, by abandonment or by eviction—the landlord has to do one of two things:

1. Return your security deposit, or

2. Provide you with an “itemized statement” in writing saying why he is keeping part or all of the deposit. Any portion that is unaccounted for must be returned to the tenant.

Request a pre-move out inspection in order to avoid unnecessary deductions.

If your tenancy began on or after January 1, 2003 then you have the right to request pre-move out inspection of your rental unit. This can help to learn whether the landlord intends to make any deductions from your deposit for damage or uncleanliness. During the inspection the landlord or his agent, must point out any reasons why they might deduct money from the deposit. You’ll then have an opportunity to remedy the problems before the final inspection.

Here’s how to request the inspection: Within a reasonable time after you or the landlord notify the other party of the end of your tenancy, the landlord must inform you in writing that you have a right to be present at the inspection, which must take place (if you request it) no sooner than two weeks before the end of the tenancy. The landlord must give you 48 hours’ notice before the inspection if you haven’t already agreed on a time beforehand. You can fore waive the right to demand 48 hours written notice of the inspection, but I don’t advise it.

After conducting the inspection, the landlord must give you an itemized statement of intended deductions, plus a statement with the language contained in Civil Code §§ 1950.5(b)(1) through 1950.5(b)(4) and 1950.5(d). If you’re not present at the inspection, he should leave the list in the unit. You can remedy the problems at your own cost and potentially save yourself a lot of expense. Make sure if the repairs that are listed are significant that you get your landlord’s written authorization to do the work. Get specific instruction about how to fix any noted problems.

After you leave, the landlord will re-inspect the apartment and if he still wants to do further cleaning or make other necessary improvements, then he or she must send you another itemized statement listing the deductions within three weeks after you’ve vacated. This statement must also include copies of any receipts for work he claims to have paid others to do.

Preserve your evidence.

If your efforts to fix or clean don’t measure up, the landlord can still argue that you didn’t clean well enough. That’s why it’s a good idea to keep receipts for all the materials that you use to clean, and to follow up by taking good, detailed photos of the condition of the apartment or house when you leave. Make sure to address all of the problems pointed out by your landlord.

If a landlord fails to return your security deposit within the three weeks or doesn’t otherwise follow the legal steps for itemization and return, then the request for the initial inspection and the follow up itemization of noted problems together with your photos of premises should provide you with a strong basis to bring a claim demanding the return of your security deposit. If you can show the court that the landlord kept the deposit in bad faith, then you could get damages of up to twice the amount of the deposit.

  • As with all communication between with your landlord, a tenant’s request for the initial inspection of the dwelling should be made in writing. Date the letter, sign it, and keep a copy for your own records. If you have a bad relationship with your landlord, or just a bad landlord, it is a good idea to send the request certified mail.
  • If you make a request for the inspection and the landlord refuses to give it, and still attempts to keep the security deposit, then you have an even better argument that he or she is acting in bad faith.
  • If more than three weeks have passed since you moved out and the landlord has not either returned the deposit or sent you an itemized statement explaining what happened the security deposit, then you should send a letter demanding that it be returned.
  • If the security deposit is not returned, then you should follow up with an attorney to learn more about making your case in small claims.

Fill out the form below to contact an attorney in order to discuss your situation.

 

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San Diego Renters Rights 101

I have included below a list of questions and answers to problems that renters often confront.  It is important to understand that the information provided here is made available to educate tenants about their legal rights, and applies to tenants living within the City limits of San Diego.  Every situation is unique, and what may be the right solution for some will not be right for others.   For this reason, I encourage every tenant that is struggling through a dispute with his or her landlord to seek out and speak with an attorney that specializes in landlord tenant law, and can give you the specific attention your case deserves.

Q: My landlord refuses to make repairs. What can I do?

A: Start by demanding repairs in writing from the property manager or landlord.  If the landlord does not fix the problem, contact the city’s Code Enforcement Division at (619) 236-5500.  An inspector should arrange for an inspection, after which the city should send a notice of violations to the landlord with a deadline for repairs to be completed.  Landlords who do not comply with the City’s notice are asking for trouble. Not only can the city fine these landlords, but tenants can sue for breach of the warranty of habitability.

There is also a state law, Civil Code 1942.4, which makes it illegal for the landlord to continue collecting rent where certain conditions remain unabated for more than 35 days after the landlord is cited by a city inspector.

Q: My landlord shows up and demands access to my home. What are my rights?

A: The landlord can only enter your home under certain circumstances. A landlord can enter to deal with an emergency (e.g., if a pipe bursts). The landlord can also enter, after providing 24 hours written notice, to make repairs or show the apartment. See Civil Code Section 1954 for more details. If your landlord insists on entering over your objection in violation of these rules, you can call the police.

Q: I’m a month-to-month tenant. My landlord is evicting me for no reason at all. Can he do this?

A: In San Diego, if you have lived within the City limits for more than 2 years at the same residence, then your landlord must provide a reason why he or she is terminating your tenancy.  Click here to see an explanation of the San Diego Tenants’ Right to Know City Ordinance. There are  number of reasons why a landlord is permitted to terminate a tenancy  under the statute, however, the notice must include one of these permitted reasons.

Most tenants that live outside of the City limits of San Diego can be terminated without a reason.  If a tenant has lived in a residence for more than one year, then they are still entitled to a written notice of 60 days, but it doesn’t have to include any reason for the termination.

The rules are different for Section 8 and other subsidized tenancies.  Most subsidized leases include protections against arbitrary terminations, but each program differs.

Q: My landlord verbally ordered me to move out of my place. Do I need to move?

A: No. Verbal eviction notice is invalid in California. Until you receive a written notice to terminate your tenancy that complies with California law, you do not need to move in response to the landlord’s verbal demands.

Q: The landlord is raising my rent. Can she do this?

A: Not if you are within the term of a fixed-term rental agreement. In other words, if you are six months into a one-year agreement that specifies a $700 rent, the landlord cannot raise the rent until the agreement expires. But if you are a month-to-month tenant, the landlord can raise your rent any amount, as long as the increase is not in retaliation for your exercise of your rights as a tenant. The landlord must provide 30 days’ written notice of the rent increase, or 60 days’ notice if the rent increase is more than 10%. The rules are different for Section 8 and other subsidized tenancies.

Q: My landlord lost the property in foreclosure. Can the bank that acquired the place at the foreclosure sale make me leave right away?

A: No. If the bank wants you to move out, it will need to serve a written notice telling you to move out. In most cases, the new owner has to give you a 90-day termination notice, and if you have a rental agreement for a fixed term, like a one-year lease, you may be able to stay until it expires. There are some exceptions.  If you entered into the lease knowing that the property was already in the process of being foreclosed, or if you pay a rate of rent that is substantially below what would be a normal market rate, then the bank may argue to the court that you are not a “bona fide” tenant under the federal statute and may try to terminate you with a notice that is less than 90 days.

Q: I moved, and my landlord won’t return my security deposit. What can I do?

A: The landlord is required to return the deposit, or document legitimate deductions, within 21 days after the tenant vacates. The landlord can deduct for unpaid rent, costs to repair damages caused by tenant or tenants’ guests, cleaning of the unit to return the unit to the same level of cleanliness it was in at the inception of the tenancy and other limited bases. Click here for more info on security deposit law under Civil Code 1950.5. The landlord cannot deduct for ordinary wear and tear. If your landlord fails to return the deposit, write a letter to the landlord demanding the deposit back. If that doesn’t do the trick, you can sue. The landlord may be liable not just for the amount of the deposit but for up to two times the amount of the deposit as a penalty for withholding the deposit in bad faith. Usually, security deposit cases are filed in small claims court where you can seek up to $7,500.

Q: I want to know about my rights as a tenant. Where should I begin?

A: The California Department of Consumer Affairs has tenant rights information on its Web site, www.dca.ca.gov. Nolo Press puts out a book called California Tenants’ Rights. Tenants Together provides a free copy of the Nolo book to members who donate at least $25 to the organization. You can also look at Tenants Together’s Web site, www.tenantstogether.org, for more information about your rights as a tenant.

If you have a problem or concern that requires more than just information,

contact an attorney by telling us about your situation

 

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When a tenant needs a lawyer

Prepare yourself with knowledge,

but

Defend yourself with expertise.

Most people want to avoid court. Especially when the dispute carries the risk of eviction. In an ideal world, everyone would work through their disputes by listening carefully and treating our neighbors as we would want to be treated. Unfortunately, Southern California is not an ideal world, and hundreds of people across the State are evicted every day. Many people could avoid being evicted if they understand that if you are a defendant in an unlawful detainer, then you need a lawyer.

My name is Marc Whitham, and I am devoted to serving tenants and consumers in defending against eviction and unlawful collections.  I offer consultations to help tenants gain the upper hand in disputes with the landlord, and I have represented hundreds of tenants at trial.  If you are in need of representation because you are facing eviction or your landlord has locked you out illegally, or is making illegal threats, or has even broken into your home without your permission, then call Tenant Defenders today.

Evictions are Civil Lawsuits.
They are not small claims court!

Rules of Evidence will apply.

Default will enter against tenants that don’t show up.

Your landlord will most likely have an attorney.

Money judgments are entered if you lose.

Find out how representation will make a difference.

Don’t be mistaken – A rental agreement is a contract; not a friendship.

I have encountered countless tenants throughout my career who are shocked and dismayed to find themselves in a difficult dispute with their landlord. The truth is landlords are not in the business of leasing for love of humanity.  They are in it for the business – pure and simple. Your landlord may act like he’s your buddy, but when it comes down to the brass tacks, what you have is not a friendship, but a contract.

When the relationship breaks down because a tenant begins to assert his or her rights, or the landlord isn’t willing to live up to his obligations, then many landlords won’t hesitate to make threats, harass, and then call their lawyers.  Many tenants think that if only they could make the landlord understand their situation, they could avoid trouble.

What the landlord often understands is that filing a lawsuit to evict a tenant (also called an unlawful detainer) can usually resolve his or her “problem” more quickly and more cheaply with the assistance of his attorney than listening and working through the dispute with you. Many tenants are surprised to find that the same is equally true for them.

Even if you aren’t defending a suit in court, it’s important to understand that landlord/tenant disputes almost always involve legal questions of rights and obligations.

Standing upon your legal rights as a tenant does not make you a troublemaker. To the contrary, it can help you and your landlord to have a clearer understanding and a better relationship in the long run.

Avoiding the problem you face with your landlord will seldom bring about a positive result, and will usually end up costing you more in the long run. Whether it is trouble making the rent payment, or the landlord’s refusal to fix the problems with the plumbing it is better to take the situation in hand.  Getting the assistance of a lawyer early on can save you in the long run in a variety of ways.

Tenant Defenders offers affordable legal assistance throughout San Diego & Southern California.

Tenants who do not take the situation in hand right away often suffer unnecessary hardships.

Sometimes a lawyer can help to resolve your problem with a consultation, or by communicating on a tenant’s behalf directly with the landlord.  Many times my clients need someone who can help to get the landlord’s attention.

If your landlord or property manager refuses to listen, and continues to make unlawful demands, or refuses to live up to his or her responsibilities, then we can advise you about what is the most prudent and effective course of action to pursue.  When you need a forceful voice to speak to your concerns, then I’m there for that too.

If your landlord has already broken the law, or is trying to use the legal system to take away your rights, then call right away.  Sometimes even when you try to avoid problems with your landlord, trouble finds you. Unfortunately, many landlords and property managers mistake flexibility and cooperation as an excuse to take advantage of those who rent from them.

I am available to speak with you directly, today, without any further obligation.  I strive to give my clients the very best counsel and advice, by providing legal services personalized to meet your needs.

Don’t hesitate to call 619-573-9582 today to speak directly with an attorney 

Get help from a professional

California tenants right to privacy – Civil Code Section 1954

Do tenants have a right to keep the landlord from entering their home?

The answer to that question is yes, but… you need to know the details.  California tenants right to privacy in the properties they rent is subject to a landlord’s right of entry.  However, landlords cannot just walk into your home whenever they feel like it.  For a landlord, or property manager, to lawfully enter into a tenant’s residence they must observe certain requirements.

Tenants often contact me wondering what to do when the landlord demands to be let into the house without advance notice and without cause.  In those cases, generally speaking, the landlord has no right of entry.   If a property owner wants in, then California law requires that they make the request correctly.

California law requires that landlords and their agents give the correct written notice before attempting to enter into a residential property. When they give notice, they must follow specific procedures.

The Notice must be in writing.

Any landlord or property manager that wants to get into the rental must give advance written notice at least 24 hours before the attempted entry.  The notice must be served at the property.

The Notice must explain why the entry is needed.

The landlord, and the agents working on his or her behalf, cannot simply ask to come into your home because they feel like it, or based upon unfounded suspicions.

These requirements are explained in detail in California Civil Code Section 1954.   The full text of the statute section is as follows:

 

California Civil Code Section 1954

(a) A landlord may enter the dwelling unit only in the following cases:

(1) In case of emergency.

(2) To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees,tenants, workers, or contractors or to make an inspection pursuant to subdivision (f) of  Civil Code Section 1950.5.

(3) When the tenant has abandoned or surrendered the premises.

(4) Pursuant to court order.

(b) Except in cases of emergency or when the tenant has abandoned or surrendered the premises, entry may not be made during other than normal business hours unless the tenant consents to an entry during other than normal business hours at the time of entry.

(c) The landlord may not abuse the right of access or use it to harass the tenant.

(d) (1) Except as provided in subdivision (e), or as provided in paragraph (2) or (3), the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours. The notice shall include the date, approximate time, and purpose of the entry. The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary. The notice may be mailed to the tenant. Mailing of the notice at least six days prior to an intended entry is presumed reasonable notice in the absence of evidence to the contrary.

(2) If the purpose of the entry is to exhibit the dwelling unit to prospective or actual purchasers, the notice may be given orally, in person or by telephone, if the landlord or his or her agent has notified the tenant in writing within 120 days of the oral notice that the property is for sale and that the landlord or agent may contact the tenant orally for the purpose described above.

Twenty-four hours is presumed reasonable notice in the absence of evidence to the contrary. The notice shall include the date, approximate time, and purpose of the entry. At the time of entry, the landlord or agent shall leave written evidence of the entry inside the unit.

(3) The tenant and the landlord may agree orally to an entry to make agreed repairs or supply agreed services. The agreement shall include the date and approximate time of the entry, which shall be within one week of the agreement. In this case, the landlord is not required to provide the tenant a written notice.

(e) No notice of entry is required under this section:

(1) To respond to an emergency.

(2) If the tenant is present and consents to the entry at the time of entry.

(3) After the tenant has abandoned or surrendered the unit.

As is the case with most statutes, there is a lot of exceptions to the general rule requiring notice.  Unfortunately, many landlords, property managers and real estate agents attempt to take advantage of these exceptions in ways that can quickly become overbearing and harassing.

That’s why it pays to know your rights as a tenant and to speak with an attorney that can help you to assert those rights.  Most tenants are unaware that their lease agreement has a number of  implied promises between the tenant and landlord. These promises are common law rights known as covenants.   Covenants predate California statutes, but they are still good law that landlords must observe.

One of the most important of these covenants is known as the covenant of quiet enjoyment.  Simply put, it means that you as the tenant have the exclusive right to possession of the property you rent.  Your landlord cannot take this covenant away.

If your landlord is acting in a way that deprives you the full use and benefit of your rental property, then he or she is likely violating the tenants right to privacy.

To learn more about your rights as a tenant, contact an attorney that specializes in helping renters to assert their rights. Fill out the form below with the information requested and an attorney from Tenant Defenders will follow up to see what kind of help we can offer..

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The warranty of habitability in California

California tenants have a right to insist that the landlord guarantee certain features of  the rental property in safe and sanitary condition.   This is a legal obligation that requires landlords and their managers to provide and maintain basic features in all the rental housing throughout the State.  It is called the warranty of habitability.  Landlords cannot make you agree to accept substandard and dangerous conditions.  No matter what your lease agreement says, your landlord must fix certain kinds of problems.

The law imposes the warranty upon landlords whether they like it, or not. This is why it is known as the warranty of habitability. Landlords and property managers cannot get out of the obligations included in the warranty by clever language in the lease agreement, or because the repairs are expensive, or because the property has been a dump for a long time.  It is this  “no excuses allowed”  feature of the law that makes it an implied warranty.

Habitable means more than your landlord may be willing to admit.  It means your landlord cannot simply tell you to put up with the leaking roof and broken windows.  Your landlord cannot make you responsible for the cost of maintaining the plumbing that constantly backs up.

Tenants are not required to just put up with the rubbish the landlord refuses to move out of the backyard.  None of these situations will literally stop a tenant from being able to live in the property, but they are each an example of a breach of the warranty of habitability.

California cases that affirm the right to habitable homes

The Court decision that recognized the implied warranty of habitability in residential rental agreements has been around for four decades.  In Hinson v. Delis the Court held that when a landlord fails to “substantially obey the housing codes and make the premises habitable” then that landlord was in material breach of the rental agreement with his tenant.

In Green v. Superior Court the California Supreme Court expanded the warranty and affirmed that when a landlord´s maintenance of a rental property fails to keep the home or apartment in decent and livable condition, then a tenant is justified in withholding the payment of rent.

“[A] landlord’s breach of a warranty of habitability directly relates to whether any rent is “due and owing” by the tenant; hence, such breach may be determinative of whether the landlord or tenant is entitled to possession of the premises upon nonpayment of rent. Accordingly, the tenant may properly raise the issue of warranty of habitability in an unlawful detainer action.”

 Green  v. Superior Court compares the implied warranty of habitability to the warranty of fitness that is implied whenever a product is placed into the market for public consumption.

“In most significant respects, the modern urban tenant is in the same position as any other normal consumer of goods… Through a residential lease, a tenant seeks to purchase “housing” from his landlord for a specified period of time. The landlord “sells” housing, enjoying a much greater opportunity, incentive and capacity than a tenant to inspect and maintain the condition of his apartment building. A tenant may reasonably expect that the product he is purchasing is fit for the purpose for which it is obtained, that is, a living unit.”

 The decision explains why the conditions within a rental unit are relevant to the issues a court must decide when hearing an eviction lawsuit.

Today the habitability of the dwelling unit has become the very essence of the residential lease; the landlord can as materially frustrate the purpose of such a lease by permitting the premises to become uninhabitable as by withdrawing the use of a portion of the premises.

 

Standards that establish what is habitable

The California Civil Code Section 1941.1 requires that the landlord provide all of the following to any residential rental property.

  • Effective waterproofing and weather protection of the roof and exterior walls, including unbroken
  • windows and doors.
  • Plumbing, electricity, and gas facilities maintained in good working order.
  • Hot and cold running water and a sewage disposal system.
  • Sufficient heating facilities maintained in good working order
  • Electrical lighting, with wiring and electrical equipment which is maintained in good working
  • order.
  • Working electrical outlets in each room.
  • Floors, stairways and railings maintained in good repair.
  • An adequate number of containers for garbage, kept clean and in good repair.
  • Building and building grounds free of trash, rubbish, rodents, and other pests.
  • A working toilet, washbasin, and bathtub or shower, in a room which is ventilated.
  • An operable dead bolt lock on each main swinging entry door.
  • At least one working telephone jack and phone line.

 

Section 1941.1 also incorporates Health and Safety Code Section 17920.30 and 17920.10.  This portion of the Health and Safety code defines “substandard building.”  A building can be substandard if it has inadequate sanitation, structural hazards, any nuisance, faulty wiring, faulty plumbing, or faulty mechanical equipment.  This section is very detailed.   Click here if you would like to read the entire text.

If the problem you have with your rental falls within one of the categories of defects described in the Civil Code Section 1941.1, or if it a substandard building as defined by Section 17920.30 of the Health and Safety Code, and it prevents you from enjoying the property, then you have good reason to complain, and every right to expect that the situation will be taken care of.

How many times have you heard from the landlord that you are the only tenant that complains?  That everyone else seems to have no problem with the cockroaches, and that the good tenants understand the heating system just doesn’t work.   The fact is many landlords and management companies are under the impression that tenants need to be able to tough it out.  That is not the law in California.  Landlords do have a responsibility to their tenants.

 

Effective and early communication is critical

It is important to remember that the relationship with the landlord is centered upon a contract.  It might be a friendly relationship, but that doesn’t change the fact that your landlord expects you to pay the rent.  Tenants also have a right to insist that the landlord live by his or her legal obligations.

Some tenants fear that their landlord will be put off by complaints about the property , and it is true that a few landlords do react negatively.  But whether your landlord likes it or not, certain kinds of problems are his responsibility to fix, and you have both a legal right and responsibility to make the landlord aware of the problem.

If you do not make a complaint to your landlord about the problem, then he or she will always have an excuse to leave it alone.  It may be the case that the landlord knows that the roof leaks, but maybe not.  Don’t be shy about asserting you right to habitable housing.  It is also important that you make your complaints known as you as the problem arises.

By waiting to make the complaint, the situation may grow much worse.  If the leaking plumbing in the wall is not taken care of promptly, it will lead to mold growth, rotting away of the wood and other building materials and may even create conditions that can later damage the entire building.

When you make a complaint, then you should make the it in writing.  Make sure to sign and date the letter or email, and make sure you include your address.   Keep a copy for your records.  If the landlord doesn’t act on the problem , then follow up.  If you get nothing but excuses, or are told to stop being difficult, then you shouldn’t hesitate to contact a lawyer.  Nothing says “you need to pay attention” like a demand letter.  It lets your landlord understand that you are serious about your contractual and legal rights, and often results in a degree of respect from your landlord that is all too frequently in short supply.

Preserving and preparing your evidence

Hopefully, your landlord will respond to your complaints with enthusiasm and take care to make the needed repairs to his or her property.  Sometimes, a landlord will not be happy with your complaints, and will compel you to take further legal action, or in some cases they may even try to bring a case for eviction.  It is for this reason that tenants should prepare for the worst case scenario, and imagine what they would need to show to convince a judge of their story.

Once you have made complaints concerning the conditions that violate the warranty, make sure that you have lots of photographs.  Don’t just keep them on your phone.  Print the photographs out, or save them to the hard drive of a computer, or put them on your Google Plus page, but make sure you don’t lose them.  If your landlord wants to make some arrangement to change the rental agreement, or offers some concession or explanation why the problem cannot be fixed, then ask them to put these into written form.

In Green v. Superior Court  the California Supreme Court summed up the law over three decades ago with the following:

“Thus, in keeping with the contemporary trend to analyze urban residential leases under modern contractual principles, we now conclude that the tenant’s duty to pay rent is “mutually dependent” upon the landlord’s fulfillment of his implied warranty of habitability.”

 Rent is not the only responsibility arising out of the rental contract.  Your landlord has to do more than simply provide a roof to sleep under.  In California, tenants that rent their homes have every right to demand that the landlord assure that the rental property is in decent and suitable condition.  It doesn’t matter if your house was a dump when you moved in, or has just slowly deteriorated over the course of many years.  Once your landlord is put on notice that the house falls short of the standards outlined in the Statutes, then he or she needs to take some action.

If the landlord or property manager refuses to act, then you have legal rights, and remedies to either enforce the terms of your rental contract, or to be released from your obligations under the same.  For those tenants faced with recalcitrant and indifferent landlords, it is important that you talk to a lawyer.  Don’t make the mistake of assuming that legal services are too expensive, or that you know enough about the law to take care of it yourself.

 

Get professional assistance

Just like any contract, when rental agreements and the parties to them are in dispute, then it will ultimately fall to the court system to decide who is in the right under the law.  A good lawyer can help you to chart your own destiny, and if contacted early on when you first face a conflict with the landlord, I can often help tenants to avoid court.

If your landlord refuses to fix your problems, then you may have to withhold rent in order to get her cooperation.  This should only be done after you have prepared an appropriate record of the problem, advised the landlord  or her agent about the problem, made your demand that it be fixed, and preserved all relevant evidence about the landlord’s efforts, or lack of effort, to remedy the situation.

Even after doing all this, every situation presents unique facts and questions that need to be addressed, and legal advice from a tenant rights specialist can prevent tenants from making mistakes.

Parties that go to court without a lawyer should expect the worse.   Eviction lawsuits are not small claims cases, and it is not a good idea to defend against one without an attorney.  It is equally unwise to assume that simply because the law requires your landlord to live up to the warranty of habitability the process to getting the problems in your house or apartment resolved will be straight-forward.   Click here contact an attorney today that will listen to the facts of the situation.  I will help you to get your landlord’s attention and get the problems resolved.

 

Call today to speak directly with a lawyer about your situation.

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