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Affirmative defenses to unlawful detainers (evictions) in California

More affirmative defenses available to California tenants served with an unlawful detainer (eviction or UD) lawsuit are the topic of this blog post, which is part two in a two part series. In part one of this blog post, http://wp.me/ps4Uj-4z , several affirmative defenses were listed that may be used by a defendant in an unlawful detainer (eviction) proceeding.  This blog post lists the remaining affirmative defenses.

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
A.  Gives written or oral notice of the problem, and

B.  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 12-month 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 landlord’s quiet title action against the tenant. A title defense is also available in an eviction following the sale of property in a foreclosure.

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 landlord’s actions or omissions so interfere with the tenant’s right to “peaceful and beneficial possession” of the rental unit that the unit or a portion of it becomes uninhabitable.  Examples include:

A.  Extreme rain damage to one or more rooms of a unit caused by a leaky roof that the landlord refused to repair;

B.  Excessively noisy renovations at the premises at unreasonable hours; and

C.  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
 A.  Theft or extortion in violation of applicable law.

B.  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.

C.  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 an overpayment of rent, entitling the tenant to an offset; A tenant’s timely cure of a breach or lack of opportunity to cure a breach pursuant to a 3-day notice; a landlord’s refusal to accept a timely tender of rent; a breach of only an implied covenant by the tenant; a landlord’s violation of the Subdivision Map Act; a landlord’s failure to install and maintain locks; a landlord’s failure to give the tenant required notice of demolition; and a landlord’s demanding “key money” to initiate or renew a commercial lease.

The use of affirmative defenses by a tenant in their answer to an eviction lawsuit is very important as it is the only way that the tenant can have the Court hear their side of the story.  If the affirmative defenses are not listed in the answer it is extremely unlikely that a Judge would allow their use at trial.

Sample answer to an unlawful detainer (eviction) complaint in California for sale.

Attorneys or parties in California who would like to view a portion of a sample answer to an unlawful detainer complaint that contains 15 affirmative defenses that is sold by the author can see below.


California eviction litigation document package containing over 30 sample documents for sale.

California eviction litigation document package

The author if this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro


Please note that the author of this blog post, 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 blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.


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