Defenses to unlawful detainer actions
Do I have a defense to the unlawful detainer filed against me?
I have compiled here a small summary of some of the most common defenses to an unlawful detainer action, more commonly known as an eviction, for tenants residing in California. Nothing in this post is meant to be legal advice for any specific case. Nor is it an all-inclusive list. There are many other reasons why a tenant may prevail in an unlawful detainer that are not included here. If after reading this post, you believe that you have a defense to the unlawful detainer, then please give us a call, in order to schedule a consultation.
In order to know whether or not you have a defense to your unlawful detainer that will hold up in court, it is important to understand what the plaintiff must prove to the court in order to win the case.
There are cases, however, where the person, or property manager attempting to evict is not the actual owner of the property and does not have any contract or relationship with the tenant. If this describes your situation, then you may have a defense.
Some of the most common reasons why a notice may be defective are listed below:,
- The notice includes more rent than is actually owed.
- The notice does not say where the rent can be paid and who will accept it.
- The notice asks for other money that is not rent, like a late fee, or money for repairs to the property.
- The notice does not have a date
- The notice has the wrong property address
- The notice does not say that you can save your tenancy by paying the amount demanded.
If the unlawful detainer case you are dealing with falls into any of the categories described above, then do not hesitate to give us a call to see how we can help you succeed in asserting your defense.
This list is not meant to be all inclusive, and there may be other reasons why the notice would not hold up in court. If the notice you have received has any of these problems, contact us to schedule your consultation. Even if this list does not describe the notice you received, you may still have other good defenses. If you suspect that you do, send us a message describing why you think the notice is wrong.
Even when the landlord’s notice has all of the correct language and conforms to the law, the plaintiff must still explain to the court how the notice was served on the defendant. If the notice was given to the defendant, then that is sufficient. Even if the notice was not personally handed to the tenant, the landlord or property manager can still meet the legal requirements for service by posting a copy of the notice on the property and sending a copy through the mail, or by leaving a copy of the notice with an adult residing in the property.
The Plaintiff must then wait for the time given in the notice to expire. If the notice is a three day notice demanding the payment of rent, then the plaintiff cannot file his or her complaint until those three days have passed. Note that it is the first day after the notice is given which starts the counting period. The same rule applies to thirty and sixty day notices. The time permitted under the notice must expire before the landlord attempts to bring the eviction, and the first day of counting does not start until after the day when the notice is served.
The final requirement that the landlord must demonstrate to prevail in court is that the defendant is still living in the property. If the tenant has moved out, then he or she can file an application to the court requesting that the case be changed from an unlawful detainer into a normal civil case. The plaintiff can still go forward with the case if the complaint is asking the court to award money, but it is no longer considered an unlawful detainer, and the defendant can then bring a countersuit against the plaintiff when required.
If you believe that you have good cause to file a counter suit against your landlord, you should speak with an attorney immediately after you inform the court you have vacated the property.