Yet problems may arise if, as is often the case, the tenant turns out to be difficult. Tenants occupying rooms in a house where the landlord resides have exactly the same protections as any other tenant under California law. You don’t simply put their stuff out on the street, or you could be liable for a whole pile of money.

However, there is one wonderful exception to that general rule. If the house is occupied by the landlord, and a single lodger resides there, then the landlord can give notice equal to the period rent is due. So if it’s a month-to-month rental, the landlord can give thirty days notice, and at the end of it, simply ask the Sheriff to come and remove them. Civil Code Section 1946.5

Not only can the Sheriff remove them quickly, but if they resist, the Sheriff can charge them criminally under Penal Code 602.3!

I predicted his eviction after an important adverse ruling came down from the court, and while I have no opinion one way or the other about the rightness or wrongness of the actions of the defendant or the plaintiff, I often do have an idea what the odds are in a case.

For example, let’s say the toilet overflows in the tenancy and you fail to fix it. The tenant absolutely has the right to refuse to pay rent. After all, who should pay rent for a place filled with human waste? If the landlord then attempts to evict you on the basis that you have failed to pay rent, and you raise that defense in your answer to the Complaint for Unlawful Detainer, then the Judge must determine what the value of the rental was, tell the landlord he cannot have possession, order that the rent be reduced to what the tenancy is worth, and award the tenant costs and attorney fees. See California Code of Civil Procedure 1174.2 and 1174.21.

The mistake that many tenants make is believing that it is always an issue at trial. It isn’t. If the landlord is evicting you based upon another reason, such as breach of your lease agreement, then habitability is not a defense. If you have five cats and your lease agreement provides that you can have one, you cannot raise the issue of habitability. You can only ask that your rent be reduced.

In the case of the fixed-term lease, let’s say the tenant has a lease for one year and that year comes and goes. If you don’t accept rent from them after the expiration date, and you haven’t given them permission, then you can file the Unlawful Detainer suit without notice. However, leases often have provisions in them that provide for a fixed-term lease to become a month-to-month lease after the expiration date. As a general rule, when in doubt, issue notice. Or better yet, hire a lawyer who knows this area of law and don’t waste your valuable time and money.

No reason need to be given to issue such a notice. That differs from other types of notices involving failure to pay rent, breach of the lease agreement, or nuisance.

The requirement of notice is the one area where landlords and even lawyers are very likely to make a mistake which can stop the eviction process. Everything flows from the notice. It’s rather like a foundation for a house. If the foundation is not solid, the house will collapse. For example, if the amount of rent requested is not exactly correct, the notice will be declared invalid and will subject your complaint for unlawful detainer (explained later) to what is called a “demurrer”. Local legal aid offices will often draft up a simple demurrer for free. If the demurrer is granted, you have to issue a new notice.

Another example of bad notice is when the landlord gives a “three day notice to quit” when rent is due. Because the landlord has not given the tenant an alternative to getting evicted, but is using nonpayment of rent as the reason, this notice would be invalid. It MUST be a “three-day notice quit or pay rent”. You must also tell them where they can pay the rent, when and to whom. If you don’t, it can be subject to a demurrer.

Step one: Realizing you have a problem.

Many landlords are often surprised to discover that people who appear well-mannered, decent and honest can turn out to be exactly the opposite. If after signing the written lease agreement, moving in and paying their deposit the tenant is consistently late on the rent, and then starts finding problems with the tenancy, be forewarned. A very common dynamic is for a tenant who can’t make the rent is to suddenly find problems with the wiring, the heat, or rodents. It is your responsibility as a landlord to make certain that the tenancy meets standards of habitability, enumerated in the case Green v. Superior Court. Also see California Code of Civil Procedure 1174.2. In other words, if they are complaining about something, fix it immediately. Otherwise in a case where the tenants are being evicted for failure to pay rent, the tenant can raise that as a defense.

The form is served blank and the tenant has ten days to fill it out and file it with the court. Since most of the time tenants don’t understand all the small print, they often give up their rights and end up getting evicted, even if they aren’t named in the complaint. If you are a landlord, I recommend always serving one with your complaint for Unlawful Detainer. If you are a tenant, make certain that your fellow tenants who are not named in the complaint fill it out and file it with the court. If they don’t, they will be evicted with you even though they have not been named in the complaint. Many of the unlawful detainer mills working out of county fail to serve the Prejudgment Claim, and when the trial comes, a tenant not named can show up, object, and the Judge will likely not issue the Writ of Execution. You can read the statute here.

The standard for habitability is not high. You cannot refuse to pay rent because the place has not been painted in a while. That doesn’t mean that you can have carpeting that is three hundred years old in the tenancy. That may be a health hazard.

Usually, habitability becomes an issue when rent is late. Suddenly the tenant finds mold, the heat stops working, the electrical system is not up to par. Some tenants will even sabotage the tenancy.

The problem for most tenant is that they raise the issue too late. If there is a problem, you report it immediately to the landlord and, if you really think it is bad, the code enforcement agency of your county.

If the landlord fails to fix it, and then evicts you, you then have a cause of action for retaliatory eviction. The presumption under California law is that an eviction is retaliatory if it happens within six months after you assert your rights. You cannot, however, stay in the tenancy and fail to pay rent and then claim habitability as an issue. You must move out and THEN sue. Many tenants claim their tenancy has problems, and then refuse to allow the landlord to enter the premises to fix it, and then refuse to move out, hoping to pressure the landlord into a settlement.

Because habitability is not raised before the eviction, Sonoma County judges just like other judges in California are often not sympathetic. If, however, it is an issue before, and it has not been repaired, then you have a valid defense to the eviction if you are a tenant, and a real problem if you are a landlord.