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Message #904 Tenant rights: Retaliatory eviction

mp3 #904 Retaliatory Evictions (mp3 file)

The general rule is that a landlord in any residential month-to-month tenancy has the right to evict any tenant on a 30-day notice to quit, and he doesn't have to have any reason. But there is one important exception to that general rule, and that is, if the landlord is acting in retaliation for or in revenge for something that you, as the tenant lawfully did, he cannot evict you for a period of 180 days (six months), under the terms of Civil Code Section 1942.5.

The usual method of trying to evict you is serving a 30-day Notice to Quit. But, there are other ways the landlord might use to try to evict you. He might raise your rent, or stop some service he has been providing you. This is also prohibited for a period of 180 days (six months) by civil code section 1942.5.

There are three main questions for you to consider to help you decide whether you as a tenant can use the retaliatory eviction defense.

First, "Is the landlord acting in retaliation, that is, in revenge?"

This means that he is seeking to evict you in revenge for something you did, and not for some other good reason. If you don't pay the rent, or if you disturb the peace, or violate some term of your lease, then the court may find that the landlord was not acting in retaliation, but for a good reason.

Second, "Is the landlord evicting you in revenge for some lawful act that you did?"

The code section lists the kinds of lawful actions that protect you. The lawful action that most often is involved, is your right to do something to have your apartment or house made habitable or safe to live in. You have a right to have the premises fit for human habitation, such as a roof and exterior walls that protect from the weather, plumbing, electric, gas, and heating facilities in working order, and the like.

So if you complain to the landlord, or to a local governmental agency which inspects and notifies the landlord to make repairs, or if you make the repairs yourself after proper notice and deduct the cost from one month's rent, these are lawful actions that are protected from retaliation.

There are other kinds of lawful acts that are protected, such as lawfully organizing or participating in a lessees' association, or lawfully and peaceably exercising your right to free speech, or any other constitutional right under the law.

Third, "Have you paid the rent?"

The law on retaliatory eviction says that you must not be in default in your rent. However, if habitability conditions of the premises are so bad that the rental value is affected, you may be able to withhold a portion of the rent and still claim retaliatory eviction.

So, to summarize, to use the retaliatory eviction defense, ask yourself these three questions: do you believe the landlord's main purpose was revenge, or did he have some other legitimate reason to evict you? Is he evicting you in retaliation for some lawful act of yours? And have you paid the rent or have a good reason for not paying it?

But be careful. If you believe you are about to be evicted and that the eviction will be retaliatory, you are strongly advised to see a private attorney or your nearest legal services or legal aid office as soon as possible. See an attorney before it gets to the lawsuit stage. A lessee or tenant may only invoke this defense once in a 12 month period. An attorney may suggest steps you can take to prevent an eviction, or provide you with a realistic assessment of your defenses to an eviction action. If you think that you are a victim of retaliatory eviction, don't hesitate to consult with an attorney. Civil Code Section 1942.5 also provides for the payment of attorney fees to the prevailing party.

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