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rules for filing Unlawful Detainer Breaking a Lease

Discussion in 'Other Residential Landlord & Tenant Issues' started by Pura Puresa, May 8, 2016.

  1. Pura Puresa

    Pura Puresa Law Topic Starter New Member

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    Jurisdiction:
    California
    In Oakland, Ca, can a landlord file a Unlawful Detainer in March (in the court only) and accept the rent for that month? Then, serve the UD to defendants in April, and accept partial rent?
     
  2. army judge

    army judge Super Moderator

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    Can the landlord do those things? YES

    If that has occurred the tenant has a great defense at trial.

    Of course, PROOF must be supplied, not mere assertion.
     
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  3. Pura Puresa

    Pura Puresa Law Topic Starter New Member

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    Thank you and yes I have proof , documentation from bank, cashed rent check.
     
  4. army judge

    army judge Super Moderator

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    Well, you have your defense.

    Here's some useful information to assist in preparing your case:

    If you are served with an unlawful detainer complaint, you should get legal advice or assistance immediately. Tenant organizations, tenant-landlord programs, housing clinics, legal aid organizations, or private attorneys can provide you with advice, and assistance if you need it. (See "Getting Help From a Third Party ")

    You usually have only five days to respond in writing to the landlord's complaint. You must respond during this time by filing the correct legal document with the Clerk of Court in which the lawsuit was filed. If the fifth day falls on a weekend or holiday, you can file your written response on the following Monday or nonholiday.305 Typically, a tenant responds to a landlord's complaint by filing a written "answer." (You can get a copy of a form to use for filing an answer from the Clerk of Court's office or online at www.courts.ca.gov/documents/ud105.pdf.

    You may have a legal defense to the landlord's complaint. If so, you must state the defense in a written answer and file your written answer with the Clerk of Court by the end of the fifth day. Otherwise, you will lose any defenses that you may have. Some typical defenses that a tenant might have are listed here as examples:

    The landlord's three-day notice requested more rent than was actually due.
    The rental unit violated the implied warranty of habitability.
    The landlord filed the eviction action in retaliation for the tenant exercising a tenant right or because the tenant complained to the building inspector about the condition of the rental unit.
    Depending on the facts of your case, there are other legal responses to the landlord's complaint that you might file instead of an answer. For example, if you believe that your landlord did not properly serve the summons and the complaint, you might file a Motion to Quash Service of Summons. If you believe that the complaint has some technical defect or does not properly allege the landlord's right to evict you, you might file a Demurrer. It is important that you obtain advice from a lawyer before you attempt to use these procedures.

    If you don't file a written response to the landlord's complaint by the end of the fifth day, the court will enter a default judgment in favor of the landlord. A default judgment allows the landlord to obtain a writ of possession (see Writ of Possession), and may also award the landlord unpaid rent, damages and court costs.

    The Clerk of Court will ask you to pay a filing fee when you file your written response. The filing fee typically is about $180. However, if you can't afford to pay the filing fee, you can request that the Clerk allow you to file your response without paying the fee (that is, you can request a waiver of the fee). An application form for a fee waiver, called an "Application for Waiver of Court Fees and Costs,"can be obtained from the Clerk of Court or online at http://www.courts.ca.gov/documents/fw001.pdf.306

    After you have filed your written answer to the landlord's complaint, the Clerk of Court will mail to both you and the landlord a notice of the time and place of the trial. If you don't appear in court, a default judgment will be entered against you.

    California Tenants - California Department of Consumer Affairs

    Los Angeles California Landlord Tenant Eviction Guide

    How to Evict a Tenant in California - Free Legal Resource

    For the Landlord: Before Filing a UD Action - The Superior Court of California, County of Santa Clara

    If your landlord tells you to move, it doesn’t mean you have to.
     
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  5. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    I believe you're referring to the acceptance of rent stopping an Unlawful Detainer action. It's not that simple. If the landlord accepts partial rent, the landlord would likely be able to amend and reserve notice upon the tenant. EDC Associates Ltd v. Gutierrez (1984) is a seminal case on the issue but these cases and rulings can be fact specific.

    II. Did Landlord Waive the Right to Obtain Possession of the Leased Premises By Accepting Tenant's Tender of Rent?

    It is a general rule that the right of a lessor to declare a forfeiture of the lease arising from some breach by the lessee is waived when the lessor, with knowledge of the breach, accepts the rent specified in the lease. (Bedford Investment Co. v. Folb (1947) 79 Cal. App. 2d 363, 366 [180 P.2d 361].) While waiver is a question of intent, the cases have required some positive evidence of rejection on the landlord's part or a specific reservation of rights in the lease to overcome the presumption that tender and acceptance of rent creates. Thus, in Karbelnig v. Brothwell (1966) 244 Cal. App. 2d 333 [53 Cal. Rptr. 335], the Court of Appeal noted, in finding a lack of waiver, "[h]ere the lessor not only relied upon the express agreement in the contract of the lease against waiver of its right to assert a forfeiture for the acceptance of rent after knowledge of the breach ... but it also gave notice that its acceptance of the rent after the breach ... became known was not to be construed as a ... waiver of its right to assert a forfeiture." (Id, at p. 342.) Similarly, in Thriftimart, Inc. v. Me & Tex (1981) 123 Cal. App. 3d 751 [177 Cal. Rptr. 24], the finding of no waiver was justified because, "[the landlord], from the [inception of the breach], clearly evidenced its objection to it .... t ... evidence[d] its willingness to make a new agreement .... [Landlord] from the start, evidenced, not a willingness to waive ... but a willingness to lease the land encroached upon, and, if that extended lease were arrived at, to continue the lease on the original parcel. We cannot impose on [landlord] a penalty for a reasonable effort to achieve an amicable adjustment of the breach." (Id, at p. 754.)

    ... Under these circumstances, landlord has waived its right to assert a forfeiture for failure to pay the rent on the date due.


    I'm not sure what the strategy is but it's usually not a good one to have fights with the landlord when you can make an agreement to limit damages and get what you want, perhaps extra time. But partial payment of rent still creates problems for you and requiring the landlord to take measures to chase you (notices, late rent, attorneys fees) those can all be tacked on to what you owe and considered "additional rent." You're best served considering the goal you want to accomplish and the best way of finding a point of mutual agreement with the landlord.
     
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