What Should be in an Answer to an Unlawful Detainer?

Posted by Marc D. Whitham - May 22, 2011 - Eviction Defense - 1 Comment

If you have been served with an unlawful detainer action because your landlord is attempting to evict you, it’s important to remember a few important points.

As in any lawsuit, the plaintiff bears the burden of proof.  In unlawful detainer cases, the plaintiff, usually a landlord or property manager, does not have a difficult burden to carry, but they  must follow the statutory rules very closely.

Before anything else, the landlord must give a tenant notice that the tenancy is going to be terminated.  This may be a notice that demands the payment of rent, or a notice to quit.  If the landlord is demanding rent, then the notice must tell you that you have three days to pay it.

When in court, the plaintiff will have to demonstrate that more likely than not what is alleged in the notice is true.  If the notice is obviously incorrect, then you may have a good defense, but as with most lawsuits, the details can be daunting.  Some mistakes are more important than others.  If the landlord asks for more rent than you actually owe, that could be a big mistake.  If the landlord asks for less than you owe, then that is not going to help you.

Even when the notice is wrong, this does not mean you will automatically win your case.  There are many good attorneys representing landlords who can frustrate you, and overcome these problems in court.  Defendants in unlawful detainer cases are often lured into making harmful statements under cross examination, or prevented from telling their story because of the rules of evidence.  Worse yet, they will often make it look like you are a complainer who just wants a free ride.

Even if the notice appears to be filled with flaws and your confident the law is on your side, it is best to talk to someone with expertise with unlawful detainer defense.  If you are adamant about defending your case in front of the court, then I strongly suggest you  give us a call.

The complaint must explain to the court why the plaintiff has a right to evict you.  If the plaintiff claims that the reason for evicting the tenant is non-payment of rent, then the complaint needs to explain that the tenant was given an opportunity to pay the rent, but still failed to do so.  It must explain how and when the landlord gave the tenant being sued the notice to terminate the complaint.   The complaint also must accurately describe the address where the tenant resides and the place where the landlord or property manager asked for the rent to be paid. Lastly, the notice must be attached to the complaint.

If your landlord is suing based on a notice to terminate, then he must not file the complaint before the time given in the notice expires.  California tenants have a right to 60 days notice before the landlord can terminate a tenancy whenever they have lived at the property for more than one year, but only 30 days notice is required if you have lived there for less than a year.

If you have lived at the same residence within the San Diego City limits for more than 2 years, then your landlord is also required to explain why he wants to terminate your rental agreement.  For more information about the San Diego “Tenants’ Right to Know” law, follow this link.

If the information in the complaint is not accurate, then you may have a basis to assert a successful defense.  However, many times if the landlord brings a lawyer to the court trial, he or she can overcome these inaccuracies.  If you aren’t sure whether the mistakes in the complaint are fatally defective, or just inconsistencies that the court will allow, then  call us.

Many tenants learn quite a lot about the process and the law of unlawful detainer, and assume that they are prepared to represent themselves in court.  Sadly, I have seen many of them end up very disappointed. Representation makes a difference.  Unlike small claims court, landlords are allowed to have attorneys when bringing unlawful detainer cases, and most of them do.  Even when a tenant defending his or her own eviction has a strong defense, there are lots of pitfalls along the way.

Education is important, and I am committed to helping tenants learn as much as possible about the law.  If you are interested in calling our office to see if we can help you, then please contact us here.  Remember, however, that there is a big difference between getting information and having representation.

Basic Elements of the Answer

  • +General Denial
    General Denial – The answer must state whether or not the defendant denies all of the allegations in the complaint.  The Judicial Council Answer Form has a check box at paragraph 2a which says “defendant generally denies each statement in the complaint.”  If you are intend to fight the eviction, then check this box.
  • +Affirmative Defense
    If you have a good reason why you are fighting the eviction, then usually it will fall within the category of one of the affirmative defenses listed in paragraph 3.  It is a good idea to focus on the most important points.  Checking every box with a “throw in the kitchen sink” strategy will most likely just annoy the judge and make your story seem less believable.  If the apartment or house has major problems the landlord refuses to fix, then make sure to check box 3a.  If the landlord has accepted rent from you after he filed the unlawful detainer, make sure to check boxes 3d and 3h.
  • +Additional Information
    If you have an affirmative defense that you checked in paragraph 3, then you should give a brief explanation of the facts in the space provided at the top of page 2 of the UD105 Form.  The important thing is to keep it brief.  You can do more harm than good by giving explanations that are too long.  If the notice is incorrect, then explain why with a brief sentence or two.  Don’t go into listing reasons why you weren’t able to pay the rent, or why your landlord is a jerk.  This will not help you, and may actually harm your case in court.  If you have already moved out of the property, then make sure to check box 4a and say when you moved.
  • +What you want
    Lastly you need to do is explain to the court what it is that you want.   This is also called the prayer, and it is under paragraph 5.  If you have an apartment or home that has serious problems with the basic living conditions, then check box 5c.  Make sure to check the box for attorney’s fees even if you don’t have an attorney.   If you call us and find out that you haves a case we can help you with, then the judge can make your landlord pay for the cost of our services if we win your case.  

Note: I am not an unlawful detainer assistant and the advice given here does not form any attorney client relationship, so do not put my information or reference tenant defenders in paragraph number 7 of the Judicial Council Form Answer.  Even if this post has been helpful to you in filling out your answer,  contact us before you attempt to represent yourself in court.