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Unlawful Detainer Law Definition Elements Defense Eviction Lawyer

Definition

An unlawful detainer is a summary proceeding for a landlord to recover possession of a leased premises from a tenant wrongfully withholding or “detaining” the property. (Drybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063; Cal. Civ. Proc. Code §1161, et. seq.)

A tenant is guilty of unlawful detainer when he continues in possession of the property, without the permission of the landlord, after default in the payment of rent, and three days’ notice, in writing, requiring its payment. (Cal. Civ. Proc. Code, § 1161(2).)


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1. We pay up to 30% referral fees to attorneys.
2. Element 1: Proper Parties
3. Element 2: Landlord-Tenant Relationship
4. Element 3: Three-day Notice to Pay Rent or Quit
5. Element 4: Expiration of Notice Period
6. Remedies
7. Statute of Limitations
8. Affirmative Defenses

Element 1: Proper Parties

Only the landlord or successor-in-estate to the landlord may bring an unlawful detainer action. The only essential defendants in an unlawful detainer action are the tenants and their subtenants in “actual occupation” of the premises. (Cal. Civ. Proc. Code, § 1164.)

The complaint must allege the facts giving the plaintiff the right to possession to the property. (Friendly Village Community Ass’n, Inc. No. IV v. Silva & Hill Const. Co. (1973) 31 Cal.App.3d 220, 224-225.) An agent of the landlord, such as the property manager, cannot sue in his or her own name as the real party in interest. (Chee v. Amanda Goldt Property Mgmt. (2006) 143 Cal.App.4th 1360.)

An assignee of the landlord, however, would be the real party in interest and thus entitled to maintain an action in his or her own name. (National Reserve Co. of Am. v. Metropolitan Trust Co. of Cal. (1941) 17 Cal.2d 827, 831.)

The only essential defendants in an unlawful detainer action are the tenants and their sub-tenants in “actual occupation” of the subject property when the complaint is filed. (Cal. Civ. Proc. Code, § 1164.)

As to unknown occupants of the subject property, a landlord should serve a Prejudgment Claim of Right to Possession and Reply Form attached to the Summons and Complaint at the time service is made upon the tenant. This places the burden on the unknown parties to file, within five days, a “Claim of Right to Possession” with the court. Doing so adds the unknown occupant as a defendant in the unlawful detainer action and requires the unknown occupant to respond to the complaint within five days. (Cal. Civ. Proc. Code, § 1167.25.)


Element 2: Landlord-Tenant Relationship

The complaint must allege the existence of a landlord-tenant relationship or some other relationship that legally supports an unlawful detainer. (Cal. Civ. Proc. Code, § 1161.)

An unlawful detainer complaint must allege the existence of a landlord-tenant relationship between the parties, or some other relationship that legally supports an unlawful detainer action. (Cal. Civ. Proc. Code, §§ 1161(1).)


Element 3: Three-day Notice to Pay Rent or Quit

Before filing an unlawful detainer action, the landlord must serve on the tenant a three-day notice, in writing, requiring payment of the stated amount due, or possession of the property. (Cal. Civ. Proc. Code, § 1161(2).)

A Three-day Notice to Pay Rent or Quit must correctly state the amount of rent due. Overstatement of the rent amount renders the notice ineffective and will lead to dismissal of the unlawful detainer complaint. (Levitz Furniture Co. v. Wingtip Communications, Inc. (2001) 86 Cal.App.4th 1035.) The Three-day Notice to Pay Rent or Quit must be attached to the unlawful detainer complaint and incorporated by reference, or the complaint must allege all the necessary elements of the notice. (Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607.)

Proper service of the notice is an essential allegation in an unlawful detainer complaint, but the details of service need not be plead. (Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 514.)


Element 4: Expiration of Notice Period

A landlord may not file an unlawful detainer action until the time for the tenant to perform the condition contained in the notice has expired. (Lee v. Kotyluk (2021) 59 Cal.App.5th 719.)

An unlawful detainer complaint that is filed before the three-day notice period has expired fails to state a cause of action and must be dismissed. (Borsuk v. Appellate Division of Superior (2015) 242 Cal.App.4th 607.)


Remedies

Reduced Rent for Breach of Habitability

Code of Civil Procedure section 1174.2(a) provides that the court is to determine the reasonable rental value of the premises in its untenantable state up to the date of trial. (Cal. Civ. Proc. Code §1174.2, subd. (a); see CACI 4342.)

Damages for Reasonable Rental Value

It is well established that losses sustained after termination of a tenancy may be recovered, and that damages awarded in an unlawful detainer action for withholding possession of the property are not “rent” but are in fact damages. Thus, a landlord is entitled to recover as damages the reasonable value of the use of the premises during the time of the unlawful detainer either on a tory theory or a theory of implied-in-law contract. It is also settled that rent control regulations have no application to an award of damages for unlawfully withholding property. (Adler v. Elphick (1986) 184 Cal.App.3d 642, 649-650.)

Statutory Damages

Civil Procedure Code section 1174, subdivision b allows statutory damages of up to $600.00 in addition to actual damages if malice is plead and proved. (Cal. Civ. Proc. Code, § 1174, subd. (b).)

Costs

Costs of suit may be awarded to the “prevailing party” pursuant to Code of Civil Procedure section 1032, subdivision (b). The party awarded possession of the subject property is the prevailing party. (Strickland v. Becks (1979) 95 Cal.App.3d Supp. 18, 20-21.)

Attorneys’ Fees

Attorneys’ fees are recoverable by the prevailing party as an allowable cost item if: (1) the parties have agreed thereto by contract, or (2) the recovery of such fees is authorized by statute or law. (See Cal. Civ. Proc. Code, §§ 1033.5(a)(10), (c)(5), 1021; Cal. Civ. Code, § 1717.)


Statute of Limitations

An unlawful detainer action can be filed at any time while the defendant is in actual possession of the property. However, a Three-Day Notice to Pay Rent or Quit must be served within one year after the rent is due. A notice that demands more than one year’s rent is defective. (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697.)


Affirmative Defenses

Affirmative defenses are limited to those defenses which may defeat the landlord’s right to possession. (Coyne v. De Leo (2018) 26 Cal.App.5th 801, 805; Cal. Civ. Proc. Code, § 1161, et seq.) The following exceptions have been allowed:

Implied Warranty of Habitability

Substantial noncompliance with applicable code standards could lead to a breach of the warranty of habitability. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1298.)

Retaliatory Eviction (Cal. Civ. Code, § 1942.5.)

The Legislature intended to create a cause of action for retaliatory eviction that is not barred by the litigation privilege. If the litigation privilege trumped a suit for retaliatory eviction under section 1942.5 the privilege would “effectively immunize conduct that the statute prohibits, theres encouraging, rather than suppressing, “the mischief at which it was directed.” (Winslett v. 1811 27th Avenue LLC (2018) 26 Cal.App.5th 239, 254.)

Discriminatory Eviction (Unruh Act)

Evictions that contravene statutory or constitutional strictures provide a valid defense to unlawful detainer actions. (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 727.)

Waiver by Acceptance of Rent

Acceptance of rent may also be a defense to an unlawful detainer if the tenant remains in possession after the expiration of the terms of the lease. (see Cal. Civ. Code,  § 1945; Kaufman v. Goldman (2011) 195 Cal.App.4th 734, 740.)

Failure to Comply with Rent Control Ordinance/Tenant Protection Act

The statutory remedies for recovery of possession and of unpaid rent do not preclude a defense based on municipal rent control legislation enacted pursuant to the police power imposing rent ceilings and limiting the grounds for eviction for the purpose of enforcing those rent ceilings. (Birkenfeld v. Berkeley (1976) 17 Cal.3d 129, 149.)

Repair and Deduct

A tenant may allege the affirmative defense of having exercised the right to make repairs and deduct their cost from the rent, however, this remedy was not designed to serve as an exclusive remedy for tenants in this area. (Green v. Superior Court of San Francisco (1974) 10 Cal.3d 616, 630.)

Landlord’s Refusal of Rent

Landlord’s refusal of rent may be an affirmative defense. (Cal. Civ. Code, § 1500.)

Tenant Was Victim of Domestic Violence, Sexual Assault, Stalking, Elder/Dependent Adult Abuse or Human Trafficking

Tenant may have an affirmative defense by alleging the tenant is being evicted because the tenant was the victim of domestic violence, sexual assault, stalking, human trafficking, or elder or dependent adult abuse. (Cal. Civ. Proc. Code, § 1161.3.)

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