The initial steps you take as soon when you get an eviction notice are critical in preserving your rights.
Step 1: Determine if you are covered by eviction protection.
If you live in any of the following cities and counties, or live in a mobile home park, you likely have eviction protection: San Francisco, Oakland, Berkeley, City of Alameda, Emeryville, Richmond, San Jose, Beverly Hills, East Palo Alto, Glendale, Hayward, Los Angeles, Maywood, Mountain View, San Diego, Santa Monica, Union City, and West Hollywood. This means that a landlord must have a specific reason, also known as a just cause, to evict you. Just-cause reasons include nonpayment of rent, breach of lease, owner move in, going out of the rental business, or nuisance. If you live in a rent-controlled jurisdiction, please contact us to speak with one of our tenant lawyers today to have your eviction notice evaluated: 415-504-2165.
Step 2: Determine if the eviction notice has errors.
Most eviction notices have fatal errors. Common errors include failing to notify the tenant in the notice that the tenant is protected by rent control; failing to attach forms required by rent control; failing to state a just cause; failing to state the correct amount of rent; failing to provide an opportunity to cure; failing to provide required moving allowances; failing to file the notice with the local rent-control agency; and failing to properly serve the notice. More importantly, even where an eviction notice does state a proper just cause, often a landlord is lying about the basis of the eviction. For example, it is very illegal for a landlord to state that they are going to move in or move a relative in and not follow through. It is similarly illegal for a landlord to evict to go out of the rental business and then rent on Airbnb or to new tenants. To have your notice evaluated for fatal errors, please contact us to speak with one our tenant lawyers today at 415-504-2165.
Step 3: Decide whether to stay and fight or whether to move out and sue.
If your eviction notice has fatal errors or the landlord is lying about the basis, or just cause, you may be able to file a wrongful eviction lawsuit against your landlord. If you are forced out of a rent-controlled apartment because of an illegal eviction, you are losing the economic value of the rent-controlled unit. You also are suffering from the emotional distress of being displaced. The damages for wrongful eviction are often tripled under local rent-control ordinances. The damages are also tripled where the landlord is aware that the tenant being displaced is elderly or disabled. The value of the loss of the rent-controlled unit is calculated as follows: fair market monthly rental value of the lost unit, less the monthly rent paid on the subject unit when forced out, times the number of months the tenant expected to stay in the unit. Chacon v. Litke, 181 Cal. App. 4th 1234, 1245-1246 (2010). For example, in Chacon, the appellate court upheld a $1,145,475 award accounting for a tenant’s projected rent differential over twenty years. In other words, it may be in your financial interest to move out and sue. Our firm takes these cases on contingency, meaning you do not pay anything unless we get a recovery for you. If you believe you are being illegally forced out of your unit, or wrongfully evicted, please contact us to speak with one of our tenant rights lawyers today at 415-504-2165.
Step 4: Be cautious when notifying the landlord of a fatal error in the eviction notice.
If you decide to stay and fight the illegal eviction, do not inform the landlord of the error in the notice until days before the notice expires. This will give you the most time in the unit. In this same vein, it is unwise to notify the local rent board that your notice is invalid. If you file a wrongful eviction petition, the rent board will simply tell the landlord how to get the eviction right. Often it is in your interest to let the notice fully expire, never telling the landlord about a fatal error.
Step 5: Fight the eviction in court.
After the eviction notice expires, the landlord must file a formal lawsuit against you in superior court. This is known as an unlawful detainer lawsuit. The lawsuit must be personally served on you. In certain circumstances, a landlord may seek permission to have the eviction lawsuit taped to your door and then mailed to you. Be on the look out for the lawsuit. The superior court will typically mail a warning letter to the address stating that an eviction lawsuit has been filed. As soon as you receive an eviction letter from the court or see any kind of eviction lawsuit, it is time to take immediate action. There are several nonprofits that assist tenants with filing responses to eviction lawsuits, such as the Eviction Defense Center in Oakland. San Francisco provides free lawyers to tenants facing eviction through several nonprofits. In general, it is risky to fight an eviction in court. Not all cases will be dismissed or settled, and if you lose, a judgment will go on your credit, and you may have to pay attorney fees and costs to the landlord. It is wise to speak with a tenant rights attorney before deciding to stay and fight.
Step 6: File motions to have the case summarily dismissed.
If there is good legal argument that an eviction notice is invalid on its face, consider filing a demurrer or motion for summary judgment. These motions argue that the eviction lawsuit is illegal as a matter of law because of a fatal defect in the eviction notice, among other defects.
A demurrer can be an additional benefit because it buys the tenant more time in the unit. The hearing on a demurrer can be set up to thirty-five days out. Be careful though, a demurrer must be filed before you file an answer to the eviction lawsuit.
Step 7: Demand a jury trial.
After the tenant files answer, the tenant should always file a demand for a jury trial. A looming jury trial puts pressure on the landlord. Jury trials are expensive and risky for landlords, especially in pro-tenant jurisdictions like San Francisco, Los Angeles and Alameda County.
Step 8: Preserve all your rights.
If your case settles, be sure to preserve all your rights to sue the landlord. Almost all jurisdictions order the parties to attend a mandatory settlement conference, especially when the case is set for a jury trial. At these hearings, the tenant and landlord can negotiate for a buyout of the tenancy or for the right to stay under certain conditions. If the tenant has received an owner-move-in eviction notice, an Ellis Act eviction notice, or some other notice that requires the landlord to follow through on promises after the tenant has vacated, the tenant should preserve all rights to watch the unit and sue for wrongful eviction in the event the landlord does not follow all obligations. Similarly, if the tenant has suffered through serious habitability issues or harassment, the tenant should preserve all right to sue the landlord. Our tenant attorneys will assist with preserving all rights in an eviction settlement. If you need to preserve your rights, please call us to speak with one our tenant lawyers today at 415-504-2165.
Step 9: Be sure the eviction record remains sealed.
If you move out before a judgment or pursuant to a settlement, the eviction record will remain sealed and will not be reported on your credit. Be sure that you follow through to make sure the eviction lawsuit is dismissed after you vacate. A landlord is not allowed to pursue an eviction lawsuit if possession is no longer at issue. But, in some courts, things can slip through the cracks. Continue to show up for all hearings until the court or landlord dismisses the action.
