Tuesday, November 15, 2011

Evictions Are Serious People

So you are a renter. And for some inexplicable reason bad stuff starts to happen. You lose your job. Your roommate bails on you. You get sick. You have a fight with a neighbor that gets loud. And then the notice to quit comes.

Guess what? You have just entered the eviction process. Except in California, legally, we don't call it the eviction process. It is know as an unlawful detainer. And for tenants, it is not a happy place to be.

Why? Part of it has to do with the nature of the unlawful detainer proceeding. Its quick. Its limited in what issues can be brought up. It favors the property owner, but then that is the casse with almost all landlord-tenant rules.

Another part of the problem is because most judges do not like unlawful detainer cases. They're messy. Often times at least one of the parties is representing themselves. They keep judges away from more interesting, or important, cases. Also, in counties where there is rent control, the judges often times do not have a clue about the rent control laws and how they interact with state law. There's a whole analysis that I'm not going to get into in this article about that, but needless to say, judges will bend over backwards to avoid having to make a decision, in some counties, when they can construe the facts in such a way as to make easier decisions. Don't think so? Take a look at some of the unpublished decisions out of San Francisco Superior Court's Appellate Division, especially on the issue of Civil Code section 827. Something else I'll have to write about in the future.

But back to my main point. If you are a tenant, you face an uphill battle if you find yourself in an unlawful detainer. You do not want to find yourself there.

So how do you avoid it? You take steps to protect yourself. First one, act like a grownup. Just because you are not the owner of the property, does not mean you should not just ignore problems. If the heater does not work, send you landlord an email. Don't just call him and leave a message. Grownups leave paper trails. When you were a kid, you could ask your mom for some money to do something (like say buying lemons for your lemonade stand). Your parents, if they wanted something, needed to put it in writing (whether it be a loan, a permit, a business license. Why? Because the paperwork spells out what they can and cannot do. It also spells out what theother side of the agreement can and cannot do. That way, later on when someone is claiming that they have the right to do something, there is actual evidcence of it.

Second, think about your well being. That's right, be a little selfish and think about what is good for you. The landlord is getting something for themselves, its called money. Now, if you want to ensure that you are getting something for that exhorbitant amount of money which you pay in rent each month, you have to look out for yourself. What does this mean? If there is a problem, do something about it. Now, you can't make major repairs or alterations under most leases. But for those types of things, the landlord is responsible. How will they know to act responsibly if you, the renter, do not take steps to make sure they know about it. Furthermore, if you do not keep a file on things, how will you be able to present a defense should things go south in your living situation? With the proliferation of smart phones and cloud drives, how hard is it to image your documents and save them into a file? Not very. But if you ignore it, and lose the information, don't think for an instant that the landlord will save you by giving you a copy. Remember, the landlord is working for his self-interest. You should do the same.

Third, don't be greedy. A little contradiction here? Perhaps. But when I say don't be greedy, understand that the law requires the rental unit to be habitable, not four star certified. If you are paying $1100 a month, do not expect that the landlord will come in and change the carpets every six months and install granite countertops. If you think that way, its going to lead to conflicts. And conflicts between landlords and tenants rarely end well for the tenant.

Four, don't be an ostrich. An ostrich closes its eyes, sticks its head in the sand and hopes tha the predator does not kill it. A tenant who ostriches is one who will soon be looking for a new place to live, more likely than not with an eviction on their record. If the landlord notifies you of a lease violation, do not ignore it. See if its valid. If it is, correct it. If its not, then tell them IN WRITING. Refer to the part of the lease that makes it their problem, or gives you the power to do something. If it is a Notice to Quit (whether it be 3, 30 or 60) take it seriously.

Now, if you have hit the point where the landlord is seeking to do an eviction, do not be ashamed and ASK FOR HELP. Let me say this again: do not be ashamed and ASK FOR HELP. Too many tenants ignore a notice to quit. Its the precurors to an unlawful detainer action. Unless you are an attorney who pracitces landlord-tenant law, the odds are you do not have enough information to represent yourself. If you want to try and keep your home, rented as it may be, then you should seek out a lawyer's advice on what to do. Will it cost money? In many cases the answer is yes. Is it worth it? In my experience, having a lawyer represent you significantly increases the chance that the tenant will have a better outcome.

Now for the people who say to themselves, "I can't afford an attorney", and actuallly cannot, there are other options. Many counties have a pro bono program which may be able to assist you. In San Francisco, the San Francisco Bar Association's Volunteer Legal Services Project coordinates pro bono placement for low income people in unlawful detainers and other types of cases. For people who do not meet the eligibility requirements, there are panels of attorneys who have agreed to take cases on at a reduced fee.

While you are looking for an attorney, remember, you are on a ticking clock once you have been served. You have 5 CALENDAR DAYS in which to file and serve an answer. That means, if you get it on a Tuesday, your answer must be on file with the court by the end of Monday. If you get served on a Thursday, your answer is due on Tuesday. They do count the weekend days unless the final day is a weekend or holiday. Then the due date beceoms the next court day. Failure to answer means that the landlord can get a default and then a default judgment against you. That means they can get the sheriff out to physically remove you from the property.

For those of you in rent controlled jurisdiction, do not for a minute believe that your rent board can save you from this by filing a complaint with them. They can consider it, but the unlawful detainer case filed in the superior court will take priority and precedence. State court trumps municipal administrative agency hearings almost every time.

So what should you do while you are looking a lawyer, make sure that an answer gets put in. In some counties, there are organizations which help pro per (self-represented) tenants to file answers. In San Francisco, there is the Eviction Defense Collaborative. They will help you to file the appropriate paperwork. They charge a small fee, on a sliding scale fee, that is more than worth it.

If you do not take an unlawful detainer seriously, no one will for you. Losing an unlawful detainer case, either because you defaulted, by not showing up, or at trial because you did not have any documentation about what was going on between you and the landlord, it will effect you for years. It will be reported on your credit, Furthermore, there are agencies which landlords use to see if a prospective tenant has been evicted before. It will make finding a new place that much harder.

Take it seriously. Protect yourself. Get help.