Unlawful Detainer: Affirmative Defenses

Common affirmative defenses in a California unlawful detainer (eviction) lawsuit.

Affirmative Defenses to an unlawful detainer complaint include the following:

  • Habitability: Where the landlord has breached the warranty to provide habitable premises.[1] Habitability includes effective waterproofing, plumbing and gas facilities, hot and cold water, sewage, garbage receptacles, and floors, stairways and railings that are maintained in good repair.[2]
  • Repair and Deduct: Where the tenant needed repairs and properly deducted the cost of the repairs from the rent, and the landlord did not give proper credit.[3]
  • Tenant offered to pay rent within 3 days of being served with the 3 Day Notice to Pay or Quit, but the landlord rejected the rent.[4]
  • Defective Notice to Quit: Where the landlord's notice to quit was defective. A 3 Day Notice to Quit must be served either by (1) personal service on the tenant, (2) leaving it with a personal of suitable age and mailing it to the tenant, or (3) posting and mailing the notice. It must also include required language or advisories, and appropriately state the rent due.
  • Retaliation: Retaliation is "implied" where there is proof that the tenant complained to the landlord about the habitability of the premises and the tenancy was terminated within 180 days, and the tenant is not in default in the payment of rent.[5] Otherwise, the tenant must prove retaliation without this inference.
  • Discrimination: Where the landlord is discriminating against the defendant in violation of the Constitution or the laws of the United States or California by filing the complaint. The following are protected categories against which landlords may not discriminate in California: sex, color, race, religion, marital status, national origin, ancestry, familial status, disability, source of income, age, sexual orientation, gender identification.
  • Rent Control: Where the landlord's demand for possession violates the local rent control or eviction control ordinance.
  • Acceptance of rent after expiration of notice to quit: Where the landlord accepted rent to cover a period of time after the date the notice to quit expired.[6]
  • Domestic Violence: Where the landlord seeks to evict the tenant based on acts against the tenant or a member of the household that constitute domestic violence, sexual assault, human trafficking, or abuse of an elder or dependent adult.[7] (A temporary restraining order, protective order, or police report of not more than 180 days old is required as proof.[8])
  • Other Defenses include waiver, estoppels, breach of the covenant of good faith and fair dealing, and unclean hands.

If you're a lawyer or legal aid provider who wants to create an automated eviction defense platform for your jurisdiction, go to www.helpselflegal.com for HelpSelf's Document Automation Builder software.________________________________________________________________________[1] Cal. Civ. Proc. Code § 1174.2; Cal .Civ. Code § 1941.1.[2] Cal .Civ. Code § 1941.1; see also Disability Rights California, "Your Rights! Protecting Yourself Against unsafe Living Conditions and Evictions," September 2011, available at http://www.disabilityrightsca.org/pubs/550101accessible.pdf.[3] Cal .Civ. Code § 1942.[4] Cal. Civ. Proc. Code § 1161.5.[5] Cal. Civ. Code § 1942.5.[6] If a landlord accepts partial payment of rent, he must provide actual notice to the tenant that acceptance of the partial rent payment does not constitute any waiver of rights, including any right the landlord may have to recover possession of the property. See Cal. Civ. Proc. Code § 1161.1 (c).[7] Cal. Civ. Proc. Code § 1161.3 (a).[8] Cal. Civ. Proc. Code § 1161.3 (a)(1).

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