Tag: Eviction Attorney Los Angeles; Unlawful Detainer Attorney Los Angeles; Los Angeles Eviction Lawyer; Landlord Attorney Los Angeles; Los Angeles Eviction Lawyer

Trustees and authorized Real Estate Agents, California Civil Code § 2924.8 has been amended to require the addition of specific language regarding the foreclosure sale to the notice of sale required by Section 2924f. The following notice shall be included in the notice:

Foreclosure process has begun on this property, which may affect your right to continue to live in this property. Twenty days or more after the date of this notice, this property may be sold at foreclosure. If you are renting this property, the new property owner may either give you a new lease or rental agreement or provide you with a 90-day eviction notice. You may have a right to stay in your home for longer than 90 days. If you have a fixed-term lease, the new owner must honor the lease unless the new owner will occupy the property as a primary residence or in other limited circumstances. Also, in some cases and in some cities with a “just cause for eviction” law, you may not have to move at all. All rights and obligations under your lease or tenancy, including your obligation to pay rent, will continue after the foreclosure sale. You may wish to contact a lawyer or your local legal aid office or housing counseling agency to discuss any rights you may have.

Said notice must also be mailed via first class mail and addressed to the “Resident Of Property Subject To Foreclosure Sale”. For Trustees and Agents, compliance with the requisite notice is a must.

Our Los Angeles Eviction Attorneys recently faced an issue with proving a monthly rent amount in an eviction trial wherein there was no rental agreement and most rent payments were made in cash without receipts. In such a situation, all the tenant has to do to call into issue the accuracy of a three-day notice is to testify that the monthly rent amount is something other than what is listed in the 3-day notice. Due to the technical nature of an eviction trial, such ambiguities are very difficult to overcome.

If you are a landlord and are renting property pursuant to an oral agreement, you are best served with executing a written lease agreement regardless of the relationship with the tenant or the duration of the tenancy.

Usually the defendant carries the burden of proof with respect to an affirmative defense. In eviction trials, one of the most common affirmative defenses to the non-payment of rent our Los Angeles Eviction Attorneys face, is the landlord’s breach of the implied warranty of habitability. Under California law, a tenant can shift the burden of proof for habitability to the landlord if the four requirements under Cal. Civ. Code § 1942.3(a) are met. The result is that the tenant now benefits from not having the burden of proof and the presumption remains in tenant’s favor until the landlord can prove in trial, that the premises at issue was in fact habitable.

The tenant only benefits from this burden shifter if all four of the following are met:

• The dwelling unit “substantially lacks” any of the CC § 1941.1 “affirmative standard characteristics” is deemed “substandard” pursuant to Health & Saf.C. § 17920.3 or contains “lead hazards” as defined in Health & Saf.C. § 17920.10 (CC § 1942.3(a)(1));

• A government employee responsible for enforcing housing laws, after inspecting the unit, has given written notice to the landlord (or his or her agent) of the landlord’s obligation to repair the substandard or unsafe conditions or abate the nuisance (CC § 1942.3(a)(2));

• The conditions still exist 60 days after issuance of the above official notice to the landlord and the delay in rectifying the conditions is “without good cause” (CC § 1942.3(a)(3));

• The conditions were not caused by the tenant’s act or omission (in violation of CC §§ 1929 or 1941.2—tenant’s duty to repair own damage and maintain premises in normal course) (CC § 1942.3(a)(4)). [See CC § 1942.3(b)—presumption does not arise unless all § 1942.3(a) conditions are proven]

If the tenant cannot demonstrate all four elements listed above, then the burden of proof remains with the tenant in proving that the premises at issue is uninhabitable. Thus, at trial, landlords should be prepared to demonstrate that substandard conditions, if any, were caused by the tenant and if any inspection reports, whether from the city or county, are issued, then those conditions called out by the reports should be abated within 60 days of issuance of the report.

Pre-trial discovery has its place and purpose in civil matters. Attorneys engage in discovery to gather evidence and prepare for dispositive motions and trial. However, unlawful detainer actions are expedited since possession is the issue and California law allows for an expedited trial process so that a landlord’s possessory interest can be restored as soon as allowable by law.

Because the discovery process takes time, the question for landlords is whether propounding discovery on tenants fighting an eviction action, is the prudent thing to do. Generally, on a failure to pay rent eviction action, wherein the Landlord’s case is premised on the written lease and proper delivery and execution of the 3-day notice, discovery isn’t essential to secure a judgment for possession even in the event of a trial. However, should a tenant’s answer include affirmative defenses such as inhabitability issues or certain breaches of the lease by the landlord, then propounding discovery upon the tenant could prove helpful in formulating rebuttal arguments to those defenses.

Because the unlawful detainer proceeding is expedited, discovery in eviction actions are also expedited in that response times are shortened so that landlords and tenants can get discovery responses in time for the expedited trial. Thus, landlords should plan their litigation and trial strategies based upon the affirmative defenses and other issues raised in the answer.

Our Eviction Attorneys in Los Angeles are often faced with the commonly asserted defense offered by tenants that the landlord breached the implied warranty of habitability. The warranty of habitability is implied by law in residential leases and a landlord’s ability to collect rent is dependent upon a habitable premises. California law lists most of the conditions that will make a residential unit untenantable if the conditions are substandard.

These include: (a) Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors; (b) Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order; (c) A water supply approved under applicable law that is under the control of the tenant, capable of producing hot and cold running water, or a system that is under the control of the landlord, that produces hot and cold running water, furnished to appropriate fixtures, and connected to a sewage disposal system approved under applicable law; (d) Heating facilities that conformed with applicable law at the time of installation, maintained in good working order; (e) Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order; (f) Building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin; (g) An adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the time of the commencement of the lease or rental agreement, with the landlord providing appropriate serviceable receptacles thereafter and being responsible for the clean condition and good repair of the receptacles under his or her control; (h) Floors, stairways, and railings maintained in good repair; and (i) A locking mail receptacle for each residential unit in a residential hotel, as required by Section 17958.3 of the Health and Safety Code. Cal. Civ. Code § 1941.1.

Once the tenant raises the defense of uninhabitable premises, the burden is then on the landlord to show that there was no breach of warranty of habitability. If the landlord prevails, then a judgment for possession will follow. However, if the tenant prevails, the court will determine what the reasonable rent for the premises during the nonpayment period is and will allow the tenant the right to remain in possession of the premises on payment of the abated rent. Additionally, the court has the power to award attorney fees and costs to the tenant. C.C.P. § 1174.2. Furthermore, any claim by Landlord that tenant has lived with these substandard conditions and therefore somehow waives her right to evoke the protections of section 1942.5 has been rejected by the California Supreme Court in Knight v. Hallsthammer (1981) 29 Cal. 3d 46, 59.

Thus, a prudent landlord should conduct documented inspections and walk-throughs upon entering into a residential lease agreement and respond within a reasonable time to any tenant complaints about habitability. If repairs are made to a unit, those repairs should also be well documented by the landlord.

California Civil Code § 1954 codifies the rules a residential landlord must comply with upon entry of a residential unit. A landlord may enter a dwelling unit only in the following cases: (1) emergency; (2) to make necessary or agreed repairs or to inspect after reasonable notice pursuant to Section 1954(d); (3) when tenant has abandoned or surrendered the unit; or (4) pursuant to court order.

Failure to comply, i.e., an unlawful entry, may result in civil action including but not limited to, civil claims for invasion of privacy or breach of lease, and civil penalties per occurrence pursuant to Cal. Civ. Code § 1940.2.

Section 1954(d)(2) – Entry for purpose of exhibiting the dwelling unit to prospective or actual purchasers: In such a case, the notice may be given orally, in person or by telephone, if the landlord or an agent has notified the tenant in writing within 120 days of the oral notice that the property is for sale and that the landlord or agent may contact the tenant orally for the purpose of showing the unit or dwelling. Twenty-four hours is presumed reasonable notice in the absence of evidence to the contrary. The notice shall include the date, approximate time, and purpose of the entry. At the time of entry, the landlord or agent shall leave written evidence of the entry inside the unit.

Written notice is not always required if the landlord and tenant orally agree to an entry for repairs and date and approximate time of entry are part of that oral agreement. No notice is required if there is an emergency or the tenant is present and consents to the entry at the time of entry.

Our Los Angeles Eviction Attorneys recently analyzed an issue pertaining to whether a constructive eviction (i.e., where tenant elects to surrender possession) will support a claim for breach of the implied covenant of quiet enjoyment brought by the tenant.

California law is well settled that every lease contains an implied covenant of quiet enjoyment, whereby the landlord covenants that the tenant shall have quiet enjoyment and possession of the premises. See Petroleum Collections, Inc. v. Swords, (1975) 48 Cal.App.3d 841, 846. Thus, there is an imposed duty of care upon the landlord to ensure tenant’s peaceful and quiet enjoyment of the premises is undisturbed. As follows, where the landlord substantially interferes (as opposed to minor inconveniences or annoyances) with the tenant’s right to use and enjoy the premises, a breach has occurred. This substantial interference does not need to amount to an actual eviction. If the acts of the landlord compel a tenant to surrender possession then such acts may support a claim for breach of quiet enjoyment. See Andrews v. Mobile Aire Estates, (2005) 125 Cal. App. 4th 578, 590.

State and local budget cuts are affecting our schools, civil service and also landlords.  As diligent and expeditious landlords and their attorneys are at getting a judgment for possession in order to evict the tenant, the timeline for recovering possession gets pushed farther and farther out now that the Sheriff’s department is having to deal with budget cuts.  Some Sheriff Departments are faster than others but eviction notices don’t go up the same day, week or month that you send in your eviction package and Sheriff’s instructions.  Your eviction might be one of 300 for that week that have to be processed, served and posted by the Sheriffs.  With law enforcement staff constantly under pressure due to budget cuts, evictions are taking a back seat to public safety and other concerns and rightfully so.  It’s important to keep the lines of communications open with the Sheriff’s department regarding your eviction and remember, if the tenant you are trying to evict is a danger to other tenants, make sure to let the Sheriffs know about the specific facts and circumstances that are causing you concern.

Cal. Civ. Code § 1951.2 provides the general remedies available to landlords upon a breach of lease by the tenant. Section 1951.2 states: (a) Except as otherwise provided in Section 1951.4, if a lessee of real property breaches the lease and abandons the property before the end of the term or if his right to possession is terminated by the lessor because of a breach of the lease, the lease terminates. Upon such termination, the lessor may recover from the lessee: (1) The worth at the time of award of the unpaid rent which had been earned at the time of termination; (2) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided; (3) Subject to subdivision (c), the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the lessee proves could be reasonably avoided; and (4) Any other amount necessary to compensate the lessor for all the detriment proximately caused by the lessee’s failure to perform his obligations under the lease or which in the ordinary course of things would be likely to result therefrom.

Thus, landlords are under a duty to mitigate (i.e., try to re-rent the premises) but may seek the available remedies upon a breach of lease.

California Civil Code Section 1950.5 requires a landlord to provide, within 21 calendar days, an itemized statement indicating the basis for, and the amount of, any security deposit received; and the disposition of the security deposit and to then return any remaining portion of the security deposit to the tenant.

Specifically, Section 1950.5(g) provides that the landlord: shall also include copies of documents showing charges incurred and deducted by the landlord to repair or clean the premises, as follows: (A) If the landlord or landlord’s employee did the work, the itemized statement shall reasonably describe the work performed. The itemized statement shall include the time spent and the reasonable hourly rate charged. (B) If the landlord or landlord’s employee did not do the work, the landlord shall provide the tenant a copy of the bill, invoice, or receipt supplied by the person or entity performing the work. The itemized statement shall provide the tenant with the name, address, and telephone number of the person or entity, if the bill, invoice, or receipt does not include that information. (C) If a deduction is made for materials or supplies, the landlord shall provide a copy of the bill, invoice, or receipt. If a particular material or supply item is purchased by the landlord on an ongoing basis, the landlord may document the cost of the item by providing a copy of a bill, invoice, receipt, vendor price list, or other vendor document that reasonably documents the cost of the item used in the repair or cleaning of the unit.

If a landlord does not comply with the statute, then a tenant can be successful on a Breach of Statutory Duty claim against the landlord and be entitled to recover the entire deposit. A Tenant would have to show that the Landlord failed to provided Tenant (within 21 calendar days) with an itemized statement concerning the Tenant’s security deposit. Once Tenant has met his/her burden of proof and establishes that Landlord breached the Statutory Duty imposed by Section 1950.5(g), then Tenant is entitled to a refund of the entire deposit. See Granberry v. Islay Investments, (1995) 9 Cal.4th 738 (California Supreme Court held that when a landlord fails to comply with Section 1950.5, then the entire security deposit must be returned to the tenant.) Id. at 745.

We recently secured a judgment for a Los Angeles tenant for his entire security deposit ($8,000.00) plust costs, fees and interest by proving on a summary judgment motion, that landlord simply failed to provide tenant with a itemized statement concerning his security deposit. The Los Angeles Superior Court held that, as a matter of law, tenant was entitled to the entire deposit. No trial on the merits were required.