If a rental unit has no certificate of occupancy how does this affect an unlawful detainer?

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Apparently a landlord cannot collect rent in California, including past due rent in an unlawful detainer, if a rental unit has no certificate of occupancy (is “illegal”). If a landlord tries to evict a tenant from a unit with no certificate of occupancy does this mean a tenant invariably must move out? Should a tenant therefore avoid this defense in cases other than avoiding paying past due rent and who don’t care moving out? Are there situations where having no certificate of occupancy actually prevents or delays a landlord from evicting a tenant? If a landlord loses on other grounds does the tenant stay by default? For example, if a unit has no certificate of occupancy, a landlord does not request past due rent, but was shown to have retaliated and lost, could on those grounds a tenant stay, and in that case would a landlord be able to continue collecting rent?

Attorney Answers

2
Frances Campbell ·
A tenant in an illegal unit has no legal obligation to pay rent. If a landlord tries to evict a tenant for not paying rent in an illegal unit (and this is assuming there is no rent control in place), what should happen is that the landlord is awarded possession of the premises but the tenant is not forced to pay a judgment for rent. (So the tenant still has to move out.) If you don't want to move out, by all means don't bring up that the unit is illegal. If the defense of illegal unit is not raised, and the tenant proves retaliation and wins, the tenant stays (because the court never becomes aware that the unit is illegal). Does that make sense?
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Frank Chen ·
I agree with Attorney Campbell. Your strategy will depend upon whether you really want to stay as a tenant or not.
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