How to win your eviction case:
what not to do
By Barbara Craig, Attorney at Law
An eviction case (unlawful detainer action) is a contentious legal matter, and at the end of the day, no one really “wins” or “loses” such a dispute. The best possible outcome is mitigating the losses that you – whether landlord or tenant – have already suffered as the result of a business relationship gone wrong.
With that said, there are ways to maximize your chances for a favorable outcome to your eviction case. But it’s actually easier to talk about the things you should avoid doing. So, here’s a look at the top 5 ways landlords and tenants tend to lose their eviction cases.
1. Trying to evict a tenant without hiring an attorney
It may seem self-serving for me to put this at the top of the list. But the truth of it is undeniable. As a judge who presides over a local eviction court is fond of saying, unlawful detainer is not complicated, but it is very technical. Even seemingly minor details that have been overlooked are enough to get your eviction case dismissed, meaning you must start over by filing a new lawsuit.
2. Serving improper notices
30-day and 60-day notices must contain specific language as mandated by California statutes. There is nothing more crushing than waiting for a 60-day notice to expire, paying $240 to file an unlawful detainer case, waiting another three to four weeks for trial, and then having the case dismissed when the tenant’s counsel objects to the notice. Even 3-day notices must be properly prepared and an honest mistake can get your case dismissed. That free notice you got from a web site, cribbed from an old book at the library, or that you have been using for the last 20 years could cost you months more of lost rent and a tenant continuing to occupy your property. Do yourself a favor and pay an attorney to prepare your notice. It doesn’t cost much and it’s worth the peace of mind.
3. Accepting partial rent payments after your notice expires
After your 3-day, 30-day, or 60-day notice expires, accepting any rent at all from your tenant constitutes your acceptance of their continued occupancy. If you have an eviction case pending, you just destroyed it. Only accept rent from a tenant if: 1) they are paying you everything they owe you in full, and 2) you want to let them stay in your property and dismiss your eviction case against them.
4. Failing to perform your obligations as a landlord
If you haven’t maintained your property in good condition and have serious issues that impact the habitability of your property, you could lose your eviction case. This includes, but is not limited to:
- Unresolved building and safety inspection violations.
- Active insect or rodent infestations.
- Problems with electricity, plumbing, hot water, heating, etc.
5. Evicting your tenant for retaliatory reasons
If your tenant has exercised their rights under California Civil Code § 1942 and the tenant is not in default of their obligation to pay rent, they generally cannot be evicted within 180 days of a protected action. This includes but is not limited to making a complaint to you about the condition of your property or filing a complaint with a regulatory agency such as the city building and safety department.
1. Not paying rent for several months
There is no defense under the law that will allow you to live for free indefinitely in an apartment, condominium, or house that belongs to someone else. That would be like loaning your car to someone for the day and them not returning it and driving it for the next few months while you continue to make payments on it. Things just don’t work that way.
2. Avoiding service of court paperwork and/or not appearing in court
Avoiding a process server trying to serve you with a summons just puts off the inevitable. There are other ways to serve you, and you cannot make the eviction lawsuit go away by pretending it doesn’t exist. Failure to appear in court will result in a default judgment against you, and your landlord will get the order for the Sheriff to evict you.
3. Thinking the loss of a job, illness, or financial problem is a legal defense
As unfortunate as your circumstances may be, they are not a legal justification for not paying rent. Your family, friends, social services, church, or charities may be able to offer assistance, but the judge will not allow you to stay in the property just because you have nowhere else to go. Going to court is not about who can tell the best story. It is about whether you can prove that the law supports your position.
4. Resisting attempts by your landlord to work out a reasonable compromise
If your landlord has filed an eviction lawsuit against you, it is still not too late to settle it. You will typically be offered a certain amount of time to move out, and there may also be some discussion of how much money you will owe or not owe to the landlord if you leave as agreed. A settlement gives you the opportunity to decide what is important to you and what compromise you can tolerate, even if you don’t love it. But if you can’t work out a settlement and instead leave it up the judge, you will be stuck with his or her decision, whatever it may be.
5. Trying to defend yourself without an attorney
If you are not interested in settling and are bound and determined to have your day in court, a trial is your constitutional right. But if you want a fighting chance, hire an expert to represent you. Your landlord will most likely have an attorney, and unless you know the law, how it applies to your case, and understand courtroom procedures, you will be at a huge disadvantage. While it might seem expensive to hire an attorney, losing at trial can cost you much more.