At its most basic, an eviction notice is a form from a landlord telling a tenant to get out of Dodge. The form and content of the notice vary depending on why the landlord wants the tenant to move and how long the tenant has been in the rental unit. The exact forms and terms are complex and subtle. Using sample forms and/or a lawyer can make the process much simpler for a landlord.
Three-Day Notice Required
Any attempt at eviction will require at least a three-day notice. Sometimes even longer notice is required.
Does Tenant Have Defenses?
From the landlord's viewpoint, sadly, there are defenses to eviction. The more common defenses include the following.
Landlord Didn't Do It Right
As we said, eviction is a complex and complicated area of the law. If a landlord doesn't follow all of those rules and does it all exactly right, the eviction can be declared invalid. If, for example, no notice was given, the case can be dismissed for lack of notice, and the landlord has to start over, beginning with the notice this time. This only delays the eviction, but as a landlord soon discovers, eviction is slow enough without starting over.
Tenant Paid the Rent in Full
If the tenant pays the right during the three-day notice to pay or quit period, the landlord may not go ahead with an eviction lawsuit. A wise tenant will ask for a dated, time-stamped rent receipt when paying the past due rent. It will serve as proof if the landlord does file suit for non-payment. The acceptance is still a defense if the landlord accepts the rent after the notice has expired.
Landlord Refuses Rent
If a tenant gets a three-day pay or quit notice and the landlord refuses the rent when the tenant offers it, this provides a defense against eviction. The tenant should have the total rent in hand at trial.
Violating the Lease Agreement
The tenant must be given three days to cure a lease violation. If the violation is cured, no suit can be filed. Proof of cure will be a defense if the landlord sues anyhow.
Failure to Maintain
The landlord has to maintain a rental unit to minimum standards. The tenant can withhold the rent if the landlord doesn't do so. So long as the tenant complies with the law in withholding the rent, the tenant can use the failure to maintain as a defense against a non-payment of rent eviction. This is sometimes referred to as a breach of the warranty to provide habitable premises. In other words, nobody intends to pay rent for a space they cannot occupy. A tenant enters a lease for a space where the tenant can live. If the space can't be occupied, the tenant is simply not getting the benefit of the bargain - they aren't getting what they paid for. The property should be secure, have plumbing that works and doesn't leak, have functioning utilities, and have safe common areas (areas shared with other tenants). If a tenant doesn't have this, the tenant probably has a solid eviction defense.
Landlord Discriminates
Landlords cannot discriminate against tenants in ways that violate federal, state, or municipal civil rights laws. These impermissible reasons include race, religion, gender, national origin, familial status (including having minor children or being pregnant), and disability. California law added gender identity, gender expression, sexual orientation, marital status, medical condition, and age. If a landlord attempts to evict based on any of these grounds, discrimination is a defense to the eviction. Also, such discrimination is against the law and the landlord may be liable to being sued for damages in a separate case.
Retaliatory Eviction
If the landlord attempts to evict the tenant because the tenant exercised their legal rights, that exercise is a defense against eviction. Thus, properly withholding rent and having repairs done in accordance with the law is not grounds for eviction.
Defective Notices
Everything in eviction comes down to notice. If those required notices are not prepared and delivered in precise compliance with the applicable rules, failure to comply is a defense against eviction. Referring to an online forms library can help a tenant determine whether the rules were followed. The defective notice can be a three-day notice or even a defective notice of a rent increase; in either case, if not properly done, it is ineffective and serves as a defense to the eviction.
Facts as Defenses
Most of the defenses against eviction are factually based. Tenants should be careful to obtain and retain records of any steps that they expect to use as a defense against an eviction. These records will likely determine the outcome of any eviction lawsuit filed against a tenant. The paperwork will prove the defense and force a landlord, at the very least, to start over at the beginning.
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