Eviction questions frequently asked by tenants
By Barbara Craig, Attorney at Law
I frequently get phone calls and emails from tenants who have received late notices for unpaid rent and/or summons to appear in court on eviction (unlawful detainer) complaints filed by their landlords. It’s frightening to find yourself in a situation where the roof over your head is at risk, so it’s understandable that tenants in these circumstances are looking for legal advice.
That’s why I’ve prepared this FAQ, which answers the most common questions tenants have about late rent (3-day) notices, eviction proceedings, legal defenses against eviction, and legal remedies available to tenants.
Q: I received a three-day notice to pay rent – what do I do?
Your lease is a contract under which you agree to make rent payments on a certain schedule, such as the first day of every month. When you haven’t paid your rent on time, your landlord is permitted by law to issue a written notice that your rent payment is overdue. In California, a landlord’s written notice must give you three days to either pay your rent or move out of the property — or in the legal terminology of the notice, “pay rent or quit.” When you receive such a notice, you should pay your rent in full immediately. If you cannot pay your rent, contact your landlord, explain your situation, and appeal for an extension. However, your landlord does not have to accept a partial payment or give you an extension if they do not wish to do so.
Q: I received a three-day notice to pay rent, but I did not pay. What happens now?
You can still try to pay your rent, but your landlord does not have to accept the payment after the three-day notice period ends. If the three days have gone by without payment of the rent, the landlord has the option to begin eviction proceedings against you. However, if you offer payment in full and the landlord accepts the payment, you cannot be evicted.
Q: How can my landlord evict me?
If your landlord seeks to evict you, you must be served with a notice summoning you to appear in court for a hearing. The landlord must show and prove good cause to evict you, and you or your attorney will be given the opportunity to explain your side of the dispute. The judge will consider the testimony and evidence presented by both sides and then make a ruling. You cannot be evicted from your rental unit without a court order signed by a judge. And even then, only the county sheriff may forcibly remove you from your home. The landlord may never remove you from the property, lock you out of the property, or turn off your utilities in an effort to make you leave.
Q: Someone is trying to serve me with a summons – can I avoid it?
A process server is someone hired to serve you with legal paperwork (called a summons) which notifies you to appear in court. Some people think they can dodge a summons by refusing to answer their door or otherwise avoiding the process server. However, there is no way to escape a summons. If you do not accept the summons, the landlord can apply to the court for an order which allows him to serve you by posting the summons on the property. So the best thing to do is to simply accept the paperwork, and understand that the process server is a lot like a mail carrier – they are just delivering a document to you as part of their job.
Q: I have received a summons and eviction complaint. What now?
A summons to appear in court must be taken seriously. A summons for eviction (the legal term is unlawful detainer) must be answered within five days after service of the summons. If you ignore it and do nothing, the court will rule in the landlord’s favor without hearing your side of the dispute – this is called a default judgement. If you think you have a valid argument for why you should be allowed to stay in the apartment or house you are renting, you must file an answer and appear in court to speak for yourself, or hire an attorney to represent you.
If you plan to move out anyway, the best thing to do is to contact your landlord and reach an agreement with them so they will drop the eviction proceeding. This will likely require you to sign a written document which states that you will move out by a certain date, along with any other conditions of the agreement. Typically, this document will be filed with the court – this is called a stipulated agreement. If you break the stipulated agreement, the landlord can then move to have you evicted without a hearing.
Otherwise, if the landlord proceeds with the eviction lawsuit and is successful, they can not only get an order to evict you, but also an order for you to pay the past-due rent. This order – called a money judgement – is entered into the public record. A judgement can appear on your credit report for up to seven years, significantly lower your credit score, make it more difficult to rent housing in the future, and have other long-term negative consequences. So it is in your best interest to work things out with your landlord and avoid going to court if at all possible.
Q: What are valid legal defenses against not paying my rent?
If a landlord is trying to evict you for non-payment of rent, there are very few effective legal defenses available. A lease is a contract which states that the landlord will provide a place to live in exchange for payment. If you do not make payment, it stands to reason that the landlord does not have to provide you with a place to live.
While the loss of a job, serious illness, or other financial hardship might seem like a valid reason not to pay rent, unfortunately, those circumstances do not change a tenant’s (or landlord’s) responsibility to live up to the agreement they’ve entered into.
In general, the courts look to the terms of the contract to settle disputes between landlords and tenants. If the contract says you will pay rent monthly and you did not, you will need to show that you did not pay because the landlord did not live up to their end of the agreement. Otherwise – except in very rare circumstances – the court will not permit a tenant to remain in a rental unit without paying rent as agreed.
Q: Is it okay to not pay my rent because there is something wrong with the rental unit?
In general, you must pay your rent as long as you continue to live in the apartment or house you are renting. The most notable exception to this rule is if something happens to the rental unit which prevents you from living there, such as a fire.
But in some circumstances, you may withhold a portion of your rent. If your rental unit has a serious habitability problem, you have notified your landlord in writing, and they have not fixed the problem within 30 days* of your notice, you may withhold part of your rent. But you must still pay the landlord the reasonable value of the rental unit in its present condition, or deduct an amount from your rent based on the value of the part of the rental unit which is impacted by the habitability defect.
For example, if you live in a two-bedroom, two-bathroom apartment and one of the bathrooms becomes unusable due to a plumbing problem, you must notify the landlord in writing about the problem. It’s best to do this in a letter sent by U.S. Certified Mail, and keep a copy of the letter and mailing receipt for your records. If 30 days goes by without the landlord fixing the problem, you may then withhold a portion of the next rent payment. In this example, most of the apartment is still in good condition, so you would need to pay the majority of your rent. But if you were to deduct 25% from your payment, that would likely be considered reasonable.
You may only deduct from your rent payment for problems that impact the livability or habitability of your rental unit. A problem that affects your health or safety qualifies, but something which is merely inconvenient or annoying does not.
If your landlord disagrees with your deduction, they can issue you a three-day notice for non-payment of rent and try to evict you if you still do not pay. Deducting from your rent is a serious action which should be done carefully. It is important to make sure your paperwork and documentation is in order, and it is best to seek expert legal advice before taking this step.
* You do not have to wait 30 days for problems of an urgent nature – for example, if your front door deadbolt breaks and you cannot lock the door, it needs to be fixed immediately.
Q: What can I do if my landlord refuses to make repairs?
If your rental unit has a serious problem which impacts your health or safety and your landlord has failed or refused to make necessary repairs after you have notified them in writing, or the repair is of an urgent nature, another option you have is to make the repairs yourself and/or hire someone to make the repairs. You can then deduct the cost of these repairs from your rent payment. There are some restrictions on this option – you can’t spend more than one month of rent, you can’t do this more than twice in any 12-month period, and you can’t do this for problems that you or other people living with you caused.
Deducting from the rent for repairs is a tricky situation and should not be undertaken lightly. Your landlord may disagree with your actions and try to evict you for not paying your rent in full. Making sure that you have all of your paperwork in order is essential. Seeking expert legal advice before deciding to repair and deduct is highly recommended.
Q: My landlord is trying to evict me – will you represent me?
In general, I do not represent tenants in eviction proceedings. Most eviction cases are filed because a tenant has not paid their rent as agreed, often due to some type of financial problem. I feel it is a disservice to charge such tenants to represent them when they are already suffering financial difficulties and a successful defense is very unlikely.
Instead, I recommend that you take advantage of the Legal Aid Foundation of Los Angeles (LAFLA) Self Help Legal Access Centers, which are located in local courthouses. These self-help centers can provide you with legal information, assistance in preparing legal forms, and guidance in representing yourself. Click here to learn more about the Centers.
An exception to this rule is tenants who have been targeted for eviction for discriminatory or other unlawful reasons; I do sometimes represent tenants in such cases. However, I have found that these circumstances are extremely rare. Most landlords are willing to rent to anyone who pays their rent on time and does not disturb other tenants on the property.