Strength of affirmative defenses to an unlawful detainer complaint by landlord.

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I am a tenant facing a possible eviction. The facts involved are many and I’d like feedback on how strong my affirmative defenses are and chances of winning against the landlord. (1) breach of implied warranty of habitability: I have a letter from the county health department stating that the unit is uninhabitable because a significant amount of water entered the unit through the foundation and walls and the owners have not repaired it; (2) retaliatory eviction: the owner retaliated by raising the rent by $350 and then served a 30 day notice after I complained of the uninhabitable conditions, reported these, and of the failure to reimburse; (3) repair and deduct: even though I had an agreement to make major renovations in exchange for rent, part of those repairs were regarding habitability for which I notified the owner but they refused to fix and did not give proper credit for. Other affirmative defenses: the owner used threats and menaces (in emails and voicemails) to influence me to move; the owner breached the agreement to reimburse me for the renovations (See Cal. Tenants’ Rights, Portman, p. 250); and: I have proof the unit is an illegal rental unit based on zoning violations.

Attorney Answers

2
Frank Chen ·
These are all excellent affirmative defenses. If you have solid proof that the unit is illegal based on zoning violations, then the landlord cannot (should not) get monetary damages in connection with the unlawful detainer action; however, the landlord might get restitution of the premises, in which case you will have to move out. What is your goal? You are going to move out anyway, right? If you feel strongly about this case, then I suggest that you move out immediately. This would make possession not at issue, so the unlawful detainer case no longer has statutory precedence. The unlawful detainer case then converts to a regular civil action for money damages. Next, I advise you to hire an attorney to file a lawsuit against the landlord for all the bad things he/she did to you. The new lawsuit can eventually be consolidated the unlawful detainer. The rationale for this strategy is that a cross-complaint is normally NOT permitted in an unlawful detainer case. Therefore, just raising affirmative defenses is not going to get you any positive recovery. You are the victim; you ought to be the plaintiff.
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James Sansone ·
If you can prove these defenses by a preponderance of the evidence, you have excellent defenses. You may want to consider moving out prior to the trial, so possession is no longer an issue. This way, the case gets converted to a regular civil calendar. This will give you more time to collect your evidence and give you the ability to conduct more discovery and file a cross complaint. James V. Sansone, Esq. Attorney & Counselor at Law Law Offices of James V. Sansone 1400 N Dutton Ave, Ste. 21 Santa Rosa, CA 95401 t: (707) 542-5611 f: (707) 545-1522 [email protected] www.jamessansonelaw.com http://blog.jamessansonelaw.com DISCLAIMER / REPRESENTATION NOTICE: Unless you have previously retained the services of The Law Offices of James V Sansone, no Attorney-Client relationship exists between you and The Law Offices of James V Sansone or Attorney James Sansone by the mere receipt of this transmission, including any attachments. The information you obtain in this response to your question is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
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