I Stopped Paying My Rent Because Of Maintenance Issues, Now I’m Getting Evicted

Dave’s at the SF Appeal to answer your questions every Wednesday, so send them to him at tenant@sfappeal.com

My landlord gave me a three day notice for not paying rent and I want to know if I should let it go and fight the eviction. We started renting the house four years ago, the first problem started the day we moved in with the heater not working properly this continued for a year until the landlord replaced the heater. Another time, the landlord took three months to fix broken flashing on the roof over my daughter’s bedroom. Every time it rained, it rained in my daughter’s room. I only me paid half rent during that time. The landlord and property management take their time on any request I make for repairs. Should I fight the eviction?

This is a great question. I hear versions of it all the time. My first response, without knowing all the facts, is almost always no.

We have a saying in the lawyer business, “It’s better to be a plaintiff in a lawsuit than a defendant.” Even though you may have a viable defense based upon what looks like the landlord’s violation of the implied warranty of habitability, the cost to defend an unlawful detainer could run tens of thousands of dollars and there is no guarantee that you will win.

Believe me, there are still judges out there who do not understand that breach of the warranty of habitability is a valid defense to eviction for nonpayment of rent, more than 35 years after the seminal 1974 California Supreme Court decision in Green v. Superior Court.

Your case could also be compromised by the fact that the landlord seems to have compensated you for some of the decreases in services by accepting less rent when the house was less habitable. The landlord is going to claim that he always repaired the conditions (eventually) and that he discounted the rent fairly as consideration for your inconvenience.

You don’t mention if you have notices of violation from the local code enforcement agency, nor do I know if all of your complaints have been made in writing. Those are key elements to a defense to an eviction. That’s one of the reasons why I harp on communicating in writing and calling a housing inspector.

If you live in San Francisco, you have an excellent venue to adjudicate your habitability claims–the San Francisco Rent Board. If you file a petition for decreases in services, you become the petitioner (“plaintiff “) in the case and the landlord has to defend against your claims. You don’t have to hire a lawyer to make your case at the Rent Board. In San Francisco, it is almost always preferable to pay the rent during the notice period and then file a petition at the Rent Board.

If you do not live in a city that has rent control, that’s usually a more compelling reason to pay your rent during the notice period. In general, courts in non rent controlled jurisdictions are even more hostile to tenants than they are here. If you pay the rent, then you will have time to strategize about how to make the landlord accountable, rather than only three days to figure out how to defend a lawsuit.

I should mention here that many landlords’ lawyers arrange to serve three-day notices to pay or quit on Fridays. Why? Because Saturdays and Sundays count. That way a tenant only has Monday to consult an attorney. Luckily the San Francisco Tenants Union is open on the weekends. But if you see me there, it’s very, very likely I’m going to tell you to pay your rent.

Crow & Rose's legal practice emphasizes eviction defense, wrongful eviction and other landlord tenant and real property matters.

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