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Our Landlord’s Sawing Is Making Life Miserable

Our Landlord’s Sawing Is Making Life Miserable

Our Landlord’s Sawing Is Making Life Miserable

Landlord’s sawing.

For 16 years my wife and I have lived in the lower unit of a rent-controlled two-unit Victorian flat, built around 1875 in Hayes Valley.

My landlord has a woodworking shop in the basement. Several days a week he is there from around 1:00 PM to about 5:00 PM, using a table saw, sander, and other power tools which are very loud.
I work from home and my office is directly above his table saw.

Because our rent is so reasonable, and we have always been on very good terms with him, I am hesitant to complain about the noise.

Furthermore, he is a retired lawyer.

I feel that it is time to confront him and want to know where I stand legally before I do this.

Also, my wife suffers from MS and often requires a nap during the day to relieve her constant fatigue.

How should I approach this issue?

In San Francisco various city departments enforce specific areas of the San Francisco Noise Control Ordinance, Article 29, San Francisco Police Code. The Department of Public Health provides a list of the departments and noise enforcement for which they are responsible. For example, the Department of Building Inspection looks into construction noise and the Police Department is responsible for stereo, television, music, party, and animal noise.

Your landlord isn’t really making construction noise nor is he blasting his stereo. I think his noise is more related to “personal” noise that interferes with quiet enjoyment related to enforcement by the Police Department. In my experience, the cops are going to be reticent about investigating the noise as you describe it. Don’t call the cops yet.

Let’s step back for a moment. You say, “Because our rent is so reasonable, and we have always been on very good terms with him, I am hesitant to complain about the noise.” Here’s a learning moment for us all. Let’s take your statement apart.

First, your rent is reasonable because it is regulated by the San Francisco Rent Ordinance. That has nothing to do with your landlord. He may not like it, but he may not care if he has owned the building for a long time and he’s making a reasonable return on his investment. He certainly cannot evict you because you complain about the noise.

Second, you’re on good terms with the landlord. Is the only reason you’re on good terms because your rent is low? If that is true, it suggests that your civility is predicated upon fear. I guess one could make the argument that all human civility is based upon fear of punishment, but we have been out of the caves for awhile now. I have a feeling that you are just treating the landlord as would treat others–with consideration. Guess what? Your landlord doesn’t know why you’re civil to him, he just knows that you are civil.

One of the biggest problems for landlord and tenant relationships is that both landlords and tenants often have ulterior motives to be civil, rather than just respecting the relationship for what it is–a business relationship. If you have an ulterior motive for acting civilly, but you’re really just seething with anger and hate, you’re likely practicing a passive-aggressive approach that is destined to thwart any rational discussion with the landlord. That’s a waste of human energy more properly reserved for lawyers.

You have an opportunity to be powerful here. I’m not talking about the power of, “I’m going to sue your ass, if you don’t stop building your stupid little toy trains or whatever the hell you’re sawing.” I’m talking about the power of genuine human interaction.

Retired lawyers can be good communicators and maybe, just maybe, they are sick and tired of the adversarial process. I often would rather deal with older, more experienced lawyers because they don’t need to posture and they understand the value of settling an issue rather than duking it out.

I suggest that you simply talk to the landlord. Tell him that you didn’t have any problem with his work in the garage before (if that’s true.) Tell him that you work more from home now and that your wife is sick and needs to sleep during the day. Listen to him. Try to work out a schedule that will accommodate both your needs.

If the landlord acts like an asshole, walk away. Then look into writing him a request for a reasonable accommodation based on your wife’s disability. Request that he limit his noise during certain hours of the day.

Go to the San Francisco Tenants Union to discuss other options including filing a complaint with the California Department of Fair Housing and Employment.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

My Building Manager Says I’m Denying Access To My Apt., But I’m Not!

My Building Manager Says I’m Denying Access To My Apt., But I’m Not!

My Building Manager Says I’m Denying Access To My Apt., But I’m Not!

One of the owners of my building, I’ll call him DJ, was also the former manager until Jan 2010 when management was turned over to a professional managing firm, I’ll call Slumco. I have been having problems getting the managing firm Slumco to remedy an outstanding notice of violation issued by SF DBI over eight weeks ago.

Last week, out of the blue, the former manager DJ emailed me and said he wanted to send in a work crew within a day. I had not received any notice of change in management, so I asked him whether he was acting as the manager and if he was still a partial owner.

He did not answer those questions and then accused me of denying access, which I did not. I have been more than accommodating and never denied access. I’ve allowed many people in to evaluate and estimate repairs but nobody has actually done any work.

I emailed the president of Slumco and asked him if DJ was now the acting manger and he replied “DJ is our Attorney”. I had no idea he was a lawyer, let alone the acting lawyer for Slumco. He never disclosed this fact and used his same old email address as when he was the former building manager.

In communication, is he required to inform me which capacity he is acting in? Doesn’t he have to disclose that he is a lawyer? Does he have a conflict of interest?

The first thing I do when a tenant tells me that a landlord is represented by a lawyer who I don’t know either personally or by reputation is look him up. It doesn’t happen often, but every once in awhile I’ll run across someone who thinks that he can intimidate tenants by claiming to be a lawyer. It’s easy to set them straight. On two occasions, I caught unlicensed attorneys filing unlawful detainers. Now that’s a real kick!

Check the State Bar attorney search engine to see if DJ has his JD. Actually, California is one of few states left that does not require one to graduate from a law school to be licensed to practice law. You don’t need a JD (Juris Doctor) if you do a rigorous course of study under a practicing attorney or judge. It’s very possible DJ is a lawyer. Check out how long he’s been in practice and if he has any disciplinary actions filed against him.

I did a quick search in The Rules of Professional Responsibility and a few cases. I can’t see any requirement that DJ has to tell you he is a lawyer. There is very little possible conflict of interest. He has always been in an adversarial position with you. That is, unless he is getting confidential information by seeking to represent you, he has always been a potential enemy. And you know it. Next time you communicate with him (in writing), ask him who he is representing.

I don’t think any of that really matters. The real questions are: How many fricking inspections and estimates does it take to abate the violations? And where is your formal 24-hour written notice to enter? Check out “Sorry, CitiApartments, ‘Routine Inspections’ Are Illegal” for a refresher.

Certainly, the landlord has the right to enter to exhibit to workers for repair estimates and to make the repairs. However, DJ should be aware that he could be violating your covenant of quiet enjoyment. Here’s a legal concept: He could also be in violation of California Civil Code 1940.2(4) which makes it illegal to commit significant and intentional violations of Section 1954 for the purpose of influencing a tenant to vacate. The statute provides for penalties of up to $2,000.00 for each violation.

You also might want to provide a bit more continuing legal education for DJ and inform him that you’re not paying your rent next month if the repairs are not completed. California Civil Code 1942.4 provides that landlord cannot demand or collect rent if a dwelling has substantial habitability defects that are not your fault, reported by a government official and outstanding for more than 35 days. Check with the San Francisco Tenants Union or a tenant attorney before you withhold the rent.

The threat of a legally sanctioned rent strike is something that all landlords understand, lawyers or not.

Call the Tenant Lawyers now for a free consultation.
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What Constitutes a “Decrease In Services”?

What Constitutes a “Decrease In Services”?

What Constitutes a “Decrease In Services”?

I have lived in a particular flat in the Mission for about 3 years. It was in horrible shape when I moved in, but my partner and I cleaned it up. The landlord always comments on how great it looks.

The problem is that there are a number of maintenance issues that never seem to get addressed. There are some wiring issues in the front of the flat where the lights don’t work. The roof leaks in several places, as well as the windows. The linoleum in the kitchen is peeling and there is a chronic mold problem in the bathroom (tub needs to be re-grouted).

Also, it doesn’t appear that we have regular trash service as we throw it out on our back stairs and it doesn’t get taken away every week. He also has refused our request for our FREE recycling and composting bins. I’ve written a couple of letters and I pretty much get a flat out “no” (in terms of the lights, flooring, garbage bins) or it takes him months to get anything done (like the roof, which is still a work in progress).

I almost want to call an inspector to force him to make the fixes, however I’m afraid that we will have to move out for an extended period of time and we risk losing the place. Our landlord only owns one rentable property, the rest of the building is his small business.

His main excuse is a lack of funds, which I can sympathize with. However, I would like to know what our options are. As I mentioned, the place was pretty much in worse condition when I moved in so I’m not sure if a “decrease in services” rent reduction is the way to go.

Of course you have a decrease in services! You’re living in a unit with a leaking roof, faulty wiring, persistent mold and no garbage service. You could be describing a trailer in Mississippi as opposed to a flat in San Francisco and your rent should be reduced accordingly.

This may be difficult to fathom, but you could be living in a death trap. I recently spoke to a tenant who described similar living conditions that were a pain in the ass but bearable because the rent was cheap. Bearable until the electrical outlets started sparking and a fire broke out in her young daughter’s bedroom.

Your landlord is a classic Cheese Ball. He’s so cheap he squeaks. He’s not above collecting your overpriced San Francisco rent. He’s happy to take all of the tax write-offs that are available to him and not to you. He’s a shabby little version of an insurance company–he wants to take your money and provide nothing in return. Believe me, the landlords who cry poor, like insurance companies, are some of the richest ones out there because they’ve squirreled away all their dough. In the worst cases these landlords kill tenants.

As I describe in Wet, Cold, and Moldy, my first SF Appeal column, you have already notified the Cheese Ball and now you need to do something about it.

Call a housing inspector from the Department of Building Inspection. Check to see if the building has complaints or violations from the past.

What? No garbage pick-up? You throw the garbage on the back stairs? Are we still living in the 18th century? Landlords are absolutely required to provide garbage service for both residential and business tenants. San Francisco Health Code 291.1, et seq. (and following sections) is clear on this point. Landlords who fail to provide garbage service can be convicted of a misdemeanor.

Will you be forced to move from your apartment because of the repairs? I think it is unlikely because the repairs do not, from your description, seem to be extensive enough to render your unit completely uninhabitable.

You may, however, reconsider moving out when you get sick of the landlord coming over every day to “inspect” rather than doing any work on the place. For this reason I insist that landlords use licensed contractors and that they provide 24-hour written notice pursuant to Civil Code 1954.

When all the violations are in place you should certainly file a petition at the Rent Board to reduce your rent due to substantial decreases housing services or call a competent tenant attorney to considering filing a lawsuit.

Good luck. You’re going to need it.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

Buyouts

Buyouts

Buyouts

“It’s a game of chicken”—Ted Gullicksen

If you negotiate a buyout with your landlord, you don’t want to be the person plummeting off the cliff. That is why we will help you if you decide to take a buyout.

What are buyouts?

A buyout is simply a negotiated settlement before litigation in which the tenants are paid money to vacate and all of the parties release all of their rights. In rent controlled jurisdictions like San Francisco, landlords often offer tenants money to vacate their unit and waive any future tenants’ rights they have. A landlord who offers a buyout is literally purchasing a tenant’s future rights to the unit.

Landlords offer buyouts to tenants for several reasons.

A couple of years ago when property was hot, developers bought buildings to turn them into TICs with the eventual plan to convert the units to condominiums. A TIC (tenancy-in-common) is a shared ownership of a building. In these cases developers sell shares in a building. Each of the shares includes a right to exclusively occupy a given unit in the building. Often developers used the infamous Ellis Act to clear buildings of tenants. I’ll save the sordid history and diastorous consequences  of the Ellis Act for another post.

Another scenario occurs when an owner wants to move into a given unit in a building. A landlord could be entitled to evict a tenant using the just cause of owner-move-in eviction (OMI).  In San Francisco an owner must jump through several procedural hoops and have the intent to live in the unit as his principal place of residence for three years.

Sometimes landlords are out and out lying about their intentions. They serve Ellis notices and OMI notices as a pretext to evict rent-controlled tenants to simply raise the rents. As you can imagine, there have been many documented abuses of these landlord rights resulting in many wrongful evictions. But unfortunately there are many other tenants who shrug their shoulders and move.

If you are offered a “cash for keys” buyout by a foreclosing bank or a sleazy real estate agent who claims to represent the bank, never take it unless you consult with an attorney or a tenants’ rights group.

Finally there are landlords who offer tenants buyouts just to get them to move to raise rents. Think the notorious CitiApartments and their tactic of tenant harassment with buy-out offers ten times a day. You should almost never consider a buy-out when you are offered one by a big landlord you know can’t even come up with a pretext to evict you.

When can you expect a buyout?

Usually buyout offers come with changes in ownership. A new landlord purchases the building or the greedy children inherit the building from your nice old landlord who immediately made repairs when you requested them and who brought you cookies at Christmas. If there are no changed circumstances in ownership a buy-out offer can indicate a landlord’s future intent to sell the building.

Most legitimate buy-outs are offered to tenants in buildings with six units or less in San Francisco because condominium conversion is prohibited in buildings with more than six units.

Get as much information as you can about the landlord.

Like almost all other decisions you will make regarding your tenancy, this is a business decision. Gather as much information as you can. Talk to other tenants in the building to see if they have been approached by the landlord. Has the landlord evicted tenants like this before?

In one case we represented a long-term tenant with an OMI threat from the landlord. He did excellent research and found that the landlord had served an OMI notice to another tenant in another building a year previously. Clearly the threat to our client was bogus because the landlord couldn’t live in two places at the same time.

So take some time to find out what other properties the landlord owns. Property ownership is a public record available through the Assessor-Recorder’s office. Does the landlord claim he wants to move into your one-bedroom, when in fact, he lives in a mansion in Forest Hills? You want to know this before you negotiate.

Eviction notices are also filed with the San Francisco Rent Board. Sometimes you can determine a landlord’s true motives by understanding his past eviction pattern.

Think it through and do the math.

Remember, if a landlord tells you he’s thinking of moving in or removing all the tenants in the building using the Ellis Act, in San Francisco, you will be entitled to relocation payments pursuant to Rent Ordinance §37.9C—as of this writing, approximately $5,000 per tenant up to three tenants, $3,300 for each disabled or elderly tenant and $3,300 for families with minor children. Check the linked chart. Notice that Ellis payments and qualifications are slightly different. That’s your bottom line. If the landlord offers less, he’s a Cheese Ball, too cheap to hire a lawyer and too stupid to read the law.

Next, think about the additional rent you will be paying if you move. You should factor that in, especially if you think the landlord might be offering you a buyout because the eviction threat is a pretext.

Finally think about how much time you will need to find another place to live and remember the more time you request the less money you will be offered.

Citistop, the tenants’ organization that played a huge role in the demise of CitiApartments, has some very good advice about buyouts from the perspective of tenants whose landlord never had a basis to evict them.

Tenant buyouts, especially those designed to empty units for TICs, deplete rent controlled housing stock. Yet, in some cases, notably Ellis Act eviction threats or quasi-credible OMI eviction threats, a tenant may not have any defenses to a future eviction if they stay and fight it out.

For some tenants, a buyout may be preferable to suing for wrongful eviction in the future, especially if the landlord’s rationale to evict may be sound. I believe it is extremely important to develop a strategy that considers all of your options and all of the pitfalls before you negotiate a buyout.

Happy New Year, For Tenants Nothing’s Changed!

Happy New Year, For Tenants Nothing’s Changed!

Happy New Year, For Tenants Nothing’s Changed!

Ask yourself, how many landlords made New Year’s resolutions that included, “This year I’m going to be more compassionate to my tenants.” Or more practically,  “This year, I’m going to treat my tenants like I would have them treat me—like human beings.”  Unfortunately, 2009 proved for many big-city tenants that the golden rule was promiscuously traded for gold. Why would 2010 be any different?

In my blog post, Tenants, Thugs and CDOs, I summarized several articles outlining the effect of the predatory equity meltdown on tenants. In San Francisco and New York, the abuse and harassment of tenants by Tishman Speyer and CitiApartments are well known. In both cases the companies over-financed huge residential rental portfolios relying on business plans that included increasing rents by ousting rent-controlled tenants. For them and their ilk tenants are nothing more than cattle to be bought, sold and slaughtered.

A week after I posted the article, The New York Times outlined tenant struggles following  the bankruptcy of another megalandlord–British company, Dawnay Day. Just last week there were reports about rats and bedbugs in the Dawnay Day properties; East Palo Alto’s Page Mill Properties’ buildings were beginning to be auctioned after their $50 million default last year; and both Tishman Speyer and BlackRock  missed a scheduled repayment to senior lenders on a bond used to finance debt from the joint purchase of Stuyvesant Town and Peter Cooper Village apartments.

It’s only going to get worse for commercial property owners. Remember that residential apartment building are also considered to be commercial properties. In 24/7 Wall Street’s, Commercial Real Estate Begins To Mirror Residential Market, Douglas A. McIntyre muses, “Most analysts believe that the commercial real estate loan market is about to reach the place that the residential part of the market was a year ago. ‘Losses from commercial real estate will be quite high by historic standards,’ the former Comptroller of the Currency, Eugene Ludwig, told Bloomberg. Some experts think it will be even worse than that. Many community and regional banks could be ruined by defaults on the commercial mortgages that they hold.”  I also think it’s important to heed the words of Paul Krugman in his column, Disaster and Denial:  “[C]onservatives simply ignore the catastrophe in commercial real estate: in their universe the only bad loans were those made to poor people and members of minority groups, because bad loans to developers of shopping malls and office towers don’t fit the narrative.”

What does this mean for tenants living in buildings owed by predatory mega-landlords? Probably more of the same.

Meanwhile, on the home front, last week Dean Preston of Tenants Together wrote that Judicial Bias Out of Control in SF Superior Court, “I’ve thought long and hard about why San Francisco judges are so hostile to tenants. I’ve concluded that most simply do not believe in tenants’ rights, particularly rent control and its eviction protections, and view their job in housing cases as protecting a landlord’s ‘right’ to do what he or she wants with his/her property.” Does that ring a bell?

I did my stint at the San Francisco Tenants Union this week, and guess what? Yes, allegations of over $3,000.00 of security deposits stolen by landlords. And video-taped illegal entries, showing once again that landlords think they can do whatever they want…

So this year tenants can settle into the New Year with the lucid understanding that we really get what our ancestors were feeling and thinking a thousand years ago. Let’s party like it’s 1010!

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

The Eviction Shuffle: Not Like Perry Mason

The Eviction Shuffle: Not Like Perry Mason

The Eviction Shuffle: Not Like Perry Mason

Perry Mason and all TV lawyer crime dramas would be boring as hell if they documented all of the steps between indictment (summons in unlawful detainer) and trial. These blog articles cannot take the place of a good practice guide. If you are in California and you want to check out an abbreviated guide to unlawful detainer procedure, go to the local law library and take a look at the California Practice Guide: Landlord Tenant, published by the Rutter Group. I say abbreviated because an unlawful detainer is overlaid with general procedural requirements as well.

Demand a jury trial.

Perry Mason didn’t really need a jury because the murderer always confessed, but Perry always had one. I think it is important to demand a jury trial. The demand should be served with the answer. It puts the plaintiff on notice that you’re willing to go all the way. I have found that jury trial demands are very useful when defending foreclosure cases, because the attorneys representing the banks are not used to defendants doing anything. Imagine their chagrin when they realize they might have to actually go to a jury trial in Fresno, when their firm is located in San Diego. The bean counters at the bank don’t want to spend any more money than they have to. A jury demand can be a good tool to begin settlement negotiations.

Interrogatories, requests for admissions, document production

The rest of the steps of the UD Shuffle mostly concern evidence gathering. An unlawful detainer defendant has the right to see the evidence that will be used against her. In civil cases one can gather the evidence using a number of methods in combination. Written interrogatories are questions that are submitted to the landlord that he has to answer in 5 days. There are specific forms for unlawful detainer questions (form interrogatories) and you can develop your own (special interrogatories). You can also serve requests for admissions. You ask the landlord to admit or deny certain facts. If he changes his testimony on the stand you can use them against him. You also want to demand inspect and copy relevant documents. While one can obtain valuable information from all of these methods, there are many landlord lawyers who simply object and refuse to produce anything. Certainly, you can go to court to compel production and we do that all of the time. But the best way to get evidence from a landlord is from the horse’s mouth.

Depositions

I like to try to get as much information as possible using all the methods of discovery, but then I want to sit down with a court reporter and talk to the landlord. In a deposition the landlord is testifying under oath and all of his contradictory statements can be used against him in court. I don’t want to grill the guy at this stage. I just want to find out stuff. As much as I may want to make the landlord “confess” I know that admissions of bad acts are rare. It’s not like “The Case of the One-Eyed Cheese Ball.” So I’m polite and friendly and conversational. In a deposition I can see how credibly the landlord will testify and get him pinned down on his version of the facts. The landlord will really get the point—if we got this far, we’re probably going all the way to trial. It is also important to depose any witnesses the landlord is going to call to testify. Sometimes the landlord claims there are witnesses and there aren’t any. Sometimes they’ll chicken out.

Motion for summary judgment

You can get the judge to throw out the case if you can show that the landlord can’t prove his case. If you can show that there are no disputed facts as to an element of the landlord’s case you can win right here. Here’s an example: If the landlord claims that you didn’t pay your rent and you can show the court a verified copy of a cancelled check for the rent in question, there is no reason to go to trial. The judge will rule for you. Summary judgment motions are rare because facts are usually disputed by the parties. The written papers also have a slew of procedural requirements and take a lot of time to prepare.

Settlement

Many California jurisdictions require some form of mandatory settlement conference before unlawful detainer trial. Check your local rules of court. If you are representing yourself, imagine an episode where Perry isn’t familiar with the rules, the judge hates him and Hamilton Burger has a perfect record. In San Francisco, the settlement conference is scheduled the week before trial.  By that time, it is often too late to get more information that could help you defend your case.  You better be ready to convince the landlord and his attorney that they cannot prove the landlord’s allegations. If you cannot, there is no reason for the landlord to settle. Unfortunately, if the tenant is unrepresented, many negotiated settlements at this stage require the tenant to move out

You may have a fool for a client.

In San Francisco, if you did not settle your case, on the Monday morning after the settlement conference your case will be assigned a judge and sent to trial. You gathered all your evidence. You prepared all your motions. You have all of your jury instructions. You have all of your witnesses ready to go. Now all you do is walk into the courtroom pick a jury and go to it like Perry Mason.  Right? Lawyers have a saying, “If a lawyer represents himself, he has a fool for a client.” I do think it is important for tenants to understand the process. But I also think that nine times out of ten you should be represented by a lawyer in an unlawful detainer. The landlord will almost always have one. If you are representing yourself, imagine an episode where Perry isn’t familiar with the rules, the judge hates him and Hamilton Burger has a perfect record. This process is hard enough for professionals. It’s nearly impossible for amateurs. If you truly want to save your tenancy, the business decision you make to defend your eviction should include an allocation of funds to hire a tenant lawyer. Unlawful Detainer Flow Chart

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

The Eviction Shuffle: RSVP

The Eviction Shuffle: RSVP

The Eviction Shuffle: RSVP

When your landlord invites you to do the Eviction Shuffle, like any polite invitee, you must respond. Unfortunately you cannot just tell the court that you are not planning to attend. Nor can you just ignore the invitation. The landlord will respond like a jilted lover and exact revenge. A failure to respond in the required amount of time will give the landlord the opportunity to ask a court to enter a default. The court almost always will default you if the landlord provides documentation that you were served and had an opportunity to respond. In San Francisco, the sheriff could be knocking at your door in a couple of weeks. Stick a fork in it, you’re done. You’re out on the street.

Unless you have a damned good reason for your failure to respond, which I will cover later, it is very, very difficult to overturn (vacate or set aside in legalese) a default. So don’t default.

You have five days to respond, in writing, to a complaint in unlawful detainer. Don’t call the landlord. Don’t call the landlord’s attorney. Respond to the complaint at the court, in writing. Do Saturdays and Sundays count? YES! You start counting your five days the day after you have been served with the summons and complaint. So if you are served on a Friday, you must respond on Wednesday. A disproportionate amount of complaints are served on Fridays because tenants only have three business days to figure things out, i.e. calling lawyers, finding self-help centers, and researching how to defend themselves. The only time you may get more days, is if the last day you could respond falls on a court holiday. That is not to be confused with Ferris Bueller’s Day Off. Check the court schedule online.

You must be personally served.

That is, a person who is not a party to the lawsuit, not the landlord, must hand you the summons and complaint. Don’t try to get cute and refuse to take a summons meant for you. If the process server can identify you and declare that he attempted to give you the papers, you have been served. In California the landlord can post the summons and complaint on your door along with mailing it to you, but only if he gets a court order. He can only get a court order if his server declares that he tried to serve you personally with due diligence. Usually, around three tries is enough. Okay, you have a UD summons and complaint in your hand, what do you do?

Get advice from people who know landlord tenant law.

Note, I didn’t say lawyers. Not all lawyers are familiar with landlord tenant law. Frankly, I love it when a landlord is represented by his brother-in-law, who may be a crackerjack estate lawyer, but who doesn’t know diddly-dick about a three-day notice. But also note that I didn’t suggest your friends who heard a story from their friends. I can’t tell you how many times I have spoken to tenants who have some preposterous assumption about UD. Inevitably they tell me “I heard that (for example) I can stay in my apartment for months before my landlord can evict me.” Not true, most of the time. “I heard that…” Three words that will get usually guarantee that you’ll be out on your ass. I heard that President Obama was born in Kenya. Get my drift?

In the Bay Area we are very lucky. There are numerous agencies and generous tenant lawyers to whom tenants can turn. The Eviction Defense Collaborative is the best San Francisco resource to help you write a response to an unlawful detainer. There are many other agencies who provide similar services in Oakland and Berkeley. Check out our links here. You can get solid advice about your notice and your complaint at the San Francisco Tenants Union, but they will send you to the EDC to write your response. The TU can also provide you a list of their approved tenant lawyers. Crow & Rose is proud to be included on that list. If you don’t live in the Bay Area, search online for “eviction defense” or “eviction help” to find an agency or lawyer to look over your documents. Also go to Caltenantlaw’s list of tenant lawyers in California to get a comprehensive list of tenant advocates. It is worth paying to have a tenant lawyer look over your complaint and notice to quit because they are trained to find subtle flaws that might enable you to get the case tossed before you have to answer.

Pre-answer motions

Someone who really understands landlord tenant law will carefully scrutinize the complaint; the notice to quit, which should be attached to the complaint in California; and your lease, if it is attached. The lease must be attached if you are being accused of violating a covenant of the lease.

When I see a complaint that wrong, my fangs pop out, dripping with venom, ready to strike.

In California, a document supporting the complaint is considered to be part of the complaint. Therefore, if there are inconsistencies between the attached documents and the complaint it may be able to be challenged in a motion called a demurrer. That’s French for WTF? No, it’s really just an objection to the pleadings, the papers filed in the case.

There a quite a few requirements for a notice to quit to be “sufficient.” For example, in California a landlord can only demand rent in a 3-Day Notice to Pay or Quit. If he asks for late fees or utility bills, the notice can be defective and the case can get tossed. In San Francisco and other rent-controlled jurisdictions there are often very strict notice requirements that a notice contain certain information above and beyond state requirements. There are magic words! I will not reveal them here in case landlords read this. But really, there are magic words depending on what kind of notice you receive in San Francisco. If the landlord doesn’t include them in the notice, the whole complaint is defective and can be tossed.

 

Motion to Strike

We love cases with defective notices. Demurrers have longer timing requirements to be heard. When we file them we extend the UD process by up to an extra month, giving us time to negotiate and to do things like depose the landlord before we even answer. Finally, it’s great fun winning them in a hearing; getting the case tossed and in some cases being able to collect exorbitant fees from errant landlords.

There are various other pre-answer motions that are possible. Another is a motion to strike. When a complaint does not, for some reason comply with the law, all or part of it can be thrown out. I have had a couple of case where the attorneys who drafted and signed the complaints were not licensed to practice law. When I see a complaint that wrong, my fangs pop out, dripping with venom, ready to strike.

The answer

If you cannot find a mistake on the face of the complaint, you file an answer. This is where you deny the allegations in the complaint and you state your defenses, your reasons why you didn’t pay, etc. Note that there are various affirmative defenses. This is where, for example, you say that you didn’t owe rent the landlord demanded because there were breaches in the warranty of habitability. This is where you claim that the landlord violated the Rent Ordinance or that he discriminated against you in some manner. Again, you must be very thorough because there are some defenses that you can waive (lose forever) if you don’t mention them when you answer.

Like I told you, eviction defense is complicated. Many tenants think that once they’ve answered, they can wait until a settlement conference to make their case. Not true. Look what it takes just to RSVP for the UD Shuffle!

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060