Rural Justice Collaborative Housing Clinic Training Manual

Rural Justice Collaborative Housing Clinic Training Manual TABLE OF CONTENTS I. Introduction II. Legal Context for Housing Issues III. Types of...
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Rural Justice Collaborative Housing Clinic Training Manual

TABLE OF CONTENTS I.

Introduction

II.

Legal Context for Housing Issues

III.

Types of Housing and Tenancies

IV.

Common Tenancy Issues

V.

Eviction Process

VI.

Special Types of Tenancies

VII.

Foreclosure

Portions of this manual have been reprinted with permission of the Legal Aid Society of San Mateo County (LASMC), Bay Area Legal Aid, and the Law Foundation of Silicon Valley (LFSV).

DETAILED TABLE OF CONTENTS I.

Introduction A. B. C. D.

II.

Rural Justice Collaborative Background Housing Clinic Model Housing Clinic Roadmap Supplementary Materials 

Housing Clinic Training Presentation



RJC Client Intake Form



RJC Case Closure Form

Legal Context for Housing Issues A. B. C. D.

State Law Federal Law Local Law Supplementary Materials 

List of California Cities with Rent Control

III.

Types of Housing and Tenancies

IV.

Common Tenancy Issues A. B. C. D. E.

F. G. H.

Habitability Security Deposits Rights to Privacy and Quiet Enjoyment Discrimination Reasonable Accommodations and Disability Issues 1. Requesting a Reasonable Accommodation 2. The  Landlord’s  Responsibilities 3. Reasonable Accommodations and Evictions 4. Examples of Reasonable Accommodations Rent Increases Retaliation Supplementary Materials 

Reasonable Accommodations FAQs and Sample Letter (LFSV)



Fair Housing for People with Disabilities Training Presentation



Return of Property FAQs and Sample Letter



Right to Privacy FAQs and Sample Letter



Security Deposits FAQs and Sample Letter

V.

Eviction Process A. B.

C.

Eviction Overview Notice to Quit 1. Types of Notices to Quit a. Three-Day Notices to Quit b. Thirty-Day, Sixty-Day, and Ninety-Day Notices to Quit 2. Exceptions to Notice to Quit Requirement 3. Service Requirements 4. Calculating Statutory Notice Period Unlawful Detainer Action 1. Summons and Complaint 2. Responding to the Summons and Complaint 3. Preliminary Motions a. Extension of Time to Plead b. Motion to Quash Service of Summons c. Demurrer d. Motion to Strike 4. The Answer a. General Denials b. Specific Denials c. Affirmative Defenses i. Breach of Implied Warranty of Habitability ii. Repair and Deduct iii. Attempt to Pay Rent Within the Notice Period iv. Waiver, Estoppel, Change of Notice to Quit v. Retaliation vi. Discrimination vii. Violation of Rent Ordinance viii. Domestic Violence ix. Other Affirmative Defenses d. Security Deposits e. Prayer for Relief f. Demand for Jury Trial 5. Default Judgments and Motions to Vacate Default 6. Claims of Right to Possession 7. Relief from Forfeiture Motions 8. Stays of Eviction 2.

D.

E.

Settlement Process 1. Types of Settlement in Cases for Non-Payment of Rent 2. Types of Settlement in Cases for Tenant Malfeasance 3. “No  Cause”  Evictions 4. Form of the Settlement Supplementary Materials 1. Eviction Process Flowchart 2. Eviction Process Checklist for Client (Santa Clara County) 3. Sample Forms

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VI.



Three Day Notice to Quit



UD Summons and Complaint



UD Answer



Fee Waiver Request and Order



Proof of Service for UD Answer



Settlement Offer



Stipulation for Entry of Judgment of Dismissal (Tenant Vacates)



Stipulation for Entry Judgment or Dismissal (Tenant Pays and Stays)

 Application for Stay of Execution Client Information Sheets 

Answer to Complaint Filing Instructions (LASMC)



Judgment Information Sheet (LASMC)



Motion Instructions (LASMC)



Stay of Execution Information (LASMC/San Mateo County)



Stay of Execution Information (LFSV/Santa Clara County)

Special Types of Tenancies A.

Subsidized Housing and Affordable Housing 1. Public Housing a. Lease Requirements for Public Housing b. Grounds for Eviction c. Termination Notice d. Grievance Procedure 2. Section 8 Housing Programs a. Project-Based Section 8 Programs b. Tenant-Based Section 8 Voucher Program i. Grounds for Eviction ii. Notice of Termination iii. Lease Provisions 3.

B. C.

3. Other Federally Subsidized Housing Mobile Homes Supplemental Materials 

VII.

Mobile Home Tenancies FAQs (LFSV)

Foreclosure A. B. C.

D. E.

Types of Foreclosures The Foreclosure Process Rights of Tenants During a Foreclosure 1. Right to Notice After Foreclosure 2. Right to Utilities and Habitability 3. “Cash  for  Keys”  Agreements     Rights of Homeowners Before Foreclosure Supplemental Materials 

Foreclosure (California Courts)



California Homeowner Bill of Rights (LFSV)



New Protections for Homeowners (Silicon Valley Community Foundation Grantee Learning Cohort)



Housing Law Bulletin - The Protecting Tenants at Foreclosure Act: Three Years Later (National Housing Law Project)



Home Foreclosure Resources in Santa Clara County (LFSV)

4.

I.

INTRODUCTION

I. A.

INTRODUCTION

Rural Justice Collaborative Background

The Rural Justice Collaborative (RJC or Collaborative) is a network of nonprofit legal organizations and law firms working together to make legal services more accessible in rural and isolated communities within the Bay Area. The Collaborative is staffed by OneJustice. The Collaborative’s   pilot   project   aims   to   bring   free   monthly   legal   clinics   in   the   areas   of   housing   and   immigration to three such communities: southern Santa Clara County (Gilroy); the San Mateo County coast (Half Moon Bay and surrounding areas); and Napa County. Over time, the goal is to expand the range of legal services offered and the communities served. The Collaborative aims not only to increase the availability of free legal services in rural areas, but to leverage the limited resources of legal services organizations by involving private sector attorneys.    The  housing  clinics  will  be  organized  and  supervised  by  RJC’s  legal  services  nonprofit  partners   and staffed by trained pro bono attorneys from law firms and in-house legal departments. This manual was created in collaboration with the Legal Aid Society of San Mateo County, the Law Foundation of Silicon Valley, Bay Area Legal Aid, and other legal services organizations that offered their housing expertise and training resources. It is a tool that the Collaborative will continue to update and expand as we ascertain the legal housing needs of low-income individuals living in rural areas and the resources pro bono attorneys need to provide pro bono representation to this population. No previous housing law experience or expertise is necessary for pro bono attorneys to participate in RJC clinics, but all volunteers are expected to view the RJC housing training video prior to participating in their first clinic. This training manual, along with sample documents and forms, will be available in hard copy at each RJC housing clinic for pro bono attorneys to reference. B.

Housing Clinic Model

The RJC housing clinics offer limited scope representation to low-income tenants. Neither the Collaborative nor its volunteers will represent clinic clients beyond the date of the clinic. Clients are required to make appointments in order to receive assistance at a given clinic. At each RJC housing clinic, pro bono attorneys will meet face-to-face with clients, learn about their housing issues, assess their legal needs, and—with the assistance of an experienced supervising attorney with expertise in housing law—convey legal information and/or advice to the clients to help them address their particular legal issues. Local practices (including filing procedures and settlement practices) vary among counties, so please consult with the supervising attorney carefully before advising clients. Pro bono attorneys may also provide limited assistance to the client on site (e.g., draft answers to complaints, letters to landlords, etc.) as deemed appropriate by the pro bono attorney and supervising attorney. See Housing Clinic Roadmap for detail regarding clinic logistics.

RURAL JUSTICE COLLABORATIVE HOUSING CLINIC ROADMAP Below is a description of how the clinic works, and a roadmap for your consultations with your clients. Please read it carefully and let the supervising attorney at the clinic know if you have any questions. PRELIMINARY INSTRUCTIONS 1.

Arrival and orientation. A group clinic overview and orientation will take place prior to client arrivals, so please arrive on time, at least a half hour prior to the clinic start time.

2.

Check in and sign waiver. When you arrive at the clinic, check in with the clinic supervisor and sign the RJC Volunteer Waiver.

3.

Set up your workstation. RJC staff will direct you to your workstation. Set up your laptop and make sure you have all necessary documents, forms, and office supplies you will need (pen, paper, paper clips, etc.). Review any documents that you have received from the supervisor in preparation for the consultation. Let the supervising attorney know when you are ready to receive your first client.

4.

Greet the client and introduce yourself. Introduce yourself to the client and explain your role as a pro bono volunteer with the Rural Justice Collaborative. Explain to the client that you may jump in with questions so that you can collect all the information you need to fully understand their legal needs. Also explain that the consultation is confidential.

5.

Assess language/interpreter needs. Interpreters should be provided before the beginning of a consultation if necessary. However, if you find that you and the client are having difficulties understanding each other because of a language issue, speak with the clinic supervisor immediately to request an interpreter. Tips for working with interpreters:  Build the trust of the client by speaking directly to the client and not to the interpreter.  Ask the client to speak directly to you, and not to the interpreter.  Speak in short, clear sentences and pause for the interpreter to translate.  If you have any problems working with the interpreter, pause the consultation and seek assistance from the clinic supervisor.

6.

Review and sign Limited Scope Representation Agreement. Review the Limited Scope Representation Agreement with the client. Ask if the client has any questions. Sign the agreement and have the client sign as well. Make sure the client understands that he/she will only be receiving legal assistance at the clinic today and that no further legal services/representation will be provided. Ask the supervising attorney for assistance if you are unsure how to answer any questions. Clinic staff will photocopy this agreement for the client. The original will stay in the file.

7.

Complete Client Intake Form. Ask the client to help you fill out the Client Intake Form with  the  client’s   basic biographic information.

INSTRUCTIONS FOR CLIENT CONSULTATION:  Ask  for  Client’s  Story:   Ask  the  client  to  tell  his/her  story  (e.g.,  “What  brought  you  into  the  clinic  this   morning?”).    Develop  an  understanding  of  the  relevant  facts  in  the  client’s  situation  and,  to  the  extent   possible, identify potential legal issues as the client provides her/his story. Reference the Interview Questionnaire if you need help in identifying appropriate questions.  Gather and Review Client Documents: Ask the client to provide you with any relevant documents he/she brought to the clinic. Carefully review the documents and, when appropriate, ask the client how and when he/she received the documents. Once you have developed a good understanding of the underlying facts and the  client’s  documents,  check  in  with  the  supervising  attorney.  Consult with the Supervising Attorney: Provide the supervising attorney with a short summary of the relevant facts and show him/her the relevant client documents. The supervising attorney will provide you with next steps for the consultation which may include further questions for the client, assistance with document creation (e.g., drafting an Answer to a Complaint or letter to the landlord and/or advice for client.  Draft Documents and/or Fill Out Forms (If Appropriate): Draft any documents and/or fill out any forms if the supervising attorney recommends doing so. When possible, draft such documents in the presence of the client. All documents and forms should indicate that the client will be representing him/herself in proceedings. Once all paperwork is completed, notify the supervising attorney so that he/she can review it.  Finalize Documents and/or Forms (If Appropriate): After the supervising attorney has reviewed the documents  you’ve  created,  make  all  necessary  changes  and  have  the  client  sign  the  document  (if   necessary). If the client received assistance with court forms:  Make three copies of the finalized forms—one for service on the opposing party, one for the client’s  records,  and  one  to  provide  the  supervising  attorney  (in  the  event  his/her  organization   wants a copy for their files). The originals will be filed with the court.  Provide next-step instructions to the client on how, where, and when to file.  Provide next-step instructions to client on service: o For UD Answers: Assist the client in having the Answer, its attachments, and an unsigned Proof of Service form served by mail on the landlord or his/her attorney. The supervising attorney can do the actual service and sign the Proof of Service form. o For Small Claims Cases: Provide the client with instructions on how to serve the paperwork on the opposing party. (We cannot do mail service from the clinic.) If the client received assistance with writing a letter to the landlord:  Make two copies of the letter—one for the client’s  records  and  one  to  provide  the  supervising   attorney (in the event his or her organization wants a copy for their files). The client will send the original to the landlord.  Provide next-step instructions to the client on how and where to mail the original copy of the letter to the landlord/opposing party. Consult with the supervising attorney if you need assistance.

 Provide client with clear next steps. Counsel your client as to next steps. (For example, if the client is involved in court proceedings, give instructions for filing court paperwork and inform the client about what to expect at the hearing.) Make sure to make a copy of any created documents and/or completed forms and provide them to the supervising attorney. Check in with the supervising attorney if you have questions regarding  which  forms  should  be  given  to  the  client  and  which  should  be  kept  with  the  client’s  file. If you assisted the client with a UD Answer:  Let the client know that he/she should be on the look-out for a notice in the mail that lists the court date for the eviction trial.  If you assisted the client with completing a fee waiver, warn him/her that if the fee waiver is not granted, court fees will need to be paid within 10 days. Otherwise, the court will not consider the documents filed. (If the client filed an answer to a UD complaint, a default judgment will be entered against him if the fees are not paid.) Let the client know that he/she should check the mail regularly for a decision on the fee waiver request. If the supervising attorney determines that limited scope representation is not reasonable under the circumstances:  Advise the client of the potential need for further assistance. There is a duty to alert the client to all legal problems that are reasonably apparent.  Ask the supervising attorney for possible referrals, but inform the client that there is no guarantee of representation by referral agencies.  Conclude the consultation. Ask the client if he/she has any outstanding questions. Give the client a Client Evaluation Form and ask them to check out at the front desk and fill out the evaluation form in the waiting area. BEFORE YOU LEAVE  Return any remaining client documents and files (including attorney notes) to RJC staff.  Fill out the RJC Volunteer Evaluation Form. When you have finished meeting with clients, complete and return the RJC Volunteer Evaluation Form. Please be frank in your assessment so we can make the clinics better in the future.

THANK YOU FOR VOLUNTEERING! WE HOPE TO SEE YOU AT ANOTHER RJC CLINIC SOON.

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Presenters

Rural Justice Collaborative A project of OneJustice in partnership with other non-profits and law firms Housing Clinic Training

Allison Barnum Pro Bono Coordinator Law Foundation of Silicon Valley Shirley Gibson Directing Attorney Legal Aid Society of San Mateo County Deborah Thrope Senior Housing Rights Attorney Law Foundation of Silicon Valley

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Today’s  Agenda 1. 2. 3. 4. 5. 6. 7. 8.

Housing Clinic Model

Housing Clinic Model Limited Scope Clinic Representation Interviewing and Advising Clients Common Tenancy Issues Eviction Process Special Types of Tenancies Foreclosures New Tenant Protections

What: Limited  scope  “pro  per”  clinics  serving  low-income tenants led by pro bono attorneys and supervised by an expert housing attorney Where: Gilroy, Napa, and Half Moon Bay When: On a monthly basis at each location. Check with OneJustice for the next scheduled clinics.

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Who:

Low income residents facing housing problems

Why:

Individuals in low income areas are suffering housing issues with little or no legal resources

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Client Meeting Roadmap

Client Meeting Roadmap (cont'd)

1. Getting Started • Your role as pro bono attorney • Confidentiality • Limited scope representation

3. Closing • Next steps for client to handle on own • Representation has come to an end • Necessary referrals

2. Interview & Advise • Build rapport • Gather information • Consult with housing expert • Search for necessary documents in resource manual • Advise/assist client • Ask expert to review any paperwork drafted

4. Working with an Interpreter • Speak directly to the client, not to the interpreter • Ask the client to speak to you, not to the interpreter • Ensure that the interpreter is using the first person when interpreting what you or the client say.

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Limited Scope Representation

Advising Pro Per Tenants

• Short-term, limited legal services: Make clear that the attorney-client relationship will NOT continue beyond the limited consultation. • Conflict of interest: Created only if lawyer knows that the representation involves a conflict for him/her or firm. No conflicts check required in advance. • Consent:  Must  secure  client’s  informed  consent  to  limited   scope representation. (Limited Scope Retainer Agreement) • Referrals: If short-term, limited representation would not be reasonable under the circumstances, clinic attorney may still offer advice, but must advise the client of the potential need for further assistance.

1. Build  the  client’s  trust  to  better  gain  access  to  more   sensitive or less positive information. 2. Identify legal issues with client. 3. Assess  client’s  goals  for  their  case. 4. Check in with supervising attorney to discuss pro per strategy and applicable laws. 5. Advise about possible strategy and applicable law. 6. Discuss with client their options and consequences of those options. 7. Allow the client to make an informed decision. Do not advise them what to do; instead be clear about their options.

See Cal. Rule of Prof. Conduct 1-650

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Client Sensitivity

Legal Context

• Challenges faced by clients: -­‐ Finances, education, language, and other legal issues -­‐ Possible disabilities and the potential need for accommodations -­‐ Landlords forcing a major change in their lives

Housing Law is governed by: • Federal Laws: US Code, Code of Federal Regulations, Fair Housing Act and other federal statutory protections; • State Laws: Civil Code, Code of Civil Procedure, CA Fair Employment and Housing Act and other state protections; and • Local Ordinances: Rent control ordinances, and other local provisions.

• Challenges faced by volunteers: -­‐ Provide efficient assistance in complicated situations -­‐ Addressing a client when the problem is not a legal problem with legal remedies 9

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Types of Common Housing Issues

Types Of Housing 1. Private market-rate rental unit 2. Subsidized /Low-Income Housing: • Federally subsidized private rental unit (Project Based Section 8) • Federally subsidized public housing rental unit owned\operated by a local housing authority • Section 8 housing subsidy voucher used to rent private rental unit from a private landlord • Below-market-rate (BMR) private rental unit (i.e. LowIncome-Housing-Tax-Credit property, and other local programs); 3. Mobile home tenancy 4. Single renter of room in owner-occupied home 5. Foreclosure: • Owner of house or condominium – facing foreclosure • Former owner of house or condominium – post-foreclosure • Tenant in a home – post-foreclosure 6. Rent control

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Look out for these clues: • Receipt of eviction notice (3 - 30 - 60 - 90 day) • Unlawful Detainer in need of Answer • Notice to Vacate per Court Order for Eviction • Habitability and privacy complaints • Foreclosure notices • Fair housing\housing discrimination • Landlord-Tenant relations (i.e. complaints of harassment, unfair treatment, etc.) • Retaliation by landlord • Rent increases • Questions of lockouts; illegal entry

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Habitability

Common Types of Tenancies Fixed-Term (e.g. 1-year lease) • Landlord and Tenant can renew the one-year lease at its end. • Tenancy cannot be terminated during the term except for good cause (e.g. a serious lease violation). • If a tenant stays without renewing, one of two things can happen: -­‐ The  landlord  can  reject  the  tenant’s  rent  and  evict  the   tenant; OR -­‐ The landlord can accept the rent, and a month-to-month tenancy is created. Periodic (usually month-to-month) • Continues for successive periods of the same length. • Unlike fixed-term tenancy, does not have an end date and must be terminated with written notice. -­‐ Tenants  can  always  terminate  with  30  days’  written  notice. -­‐ With proper notice, the landlord may terminate the tenancy at any time, even without good cause. Length of notice depends on type of housing and length of tenancy.

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Tenants have a right to habitable housing. Landlords may  not  rent  their  property  “AS  IS.”     Some required standards are: • Working plumbing (including hot & cold running water) and heating • Electricity and lights that work and are safe (no exposed wiring) • Roof, walls and windows that do not leak and are not broken • Clean common areas, free from trash and debris • No rats, mice, cockroaches or mold • Enough trash cans to keep trash from overflowing • Safe floors, stairs and railings • Window screens that keep out insects • Working phone jack • Door and window locks 14

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Habitability (cont'd)

Habitability (cont'd)

Advising tenants with uninhabitable conditions: • Notify the landlord in writing about the problems and request repairs. • Take pictures of the problems and add dates and notes. • If  the  landlord  does  not  fix  the  problems  within  a  “reasonable   period,”  tenant  can  file a complaint with the appropriate code enforcement agency (county or city) and have the unit inspected. The inspector can write a report, issue citations and order repairs. • If an enforcement order is not complied with and 35 days have passed, a tenant is no longer obligated to pay rent. (Cal. Civ. Code §1942.4.) • A tenant is also entitled to statutory damages of $100$5000.00 for each violation. (Cal. Civ. Code §1942.4.) For more information see Cal. Civ. Code § 1941.1; see also Cal. Health and Safety Code § 17920.3.

If the landlord does not fix the problems, some of the legal remedies include:

1. Move out and sue the landlord for damages to the tenant, the  tenant’s  family,  or  the  tenant’s  property  due  to  the   breach of the implied warranty of habitability or constructive eviction. If conditions are bad enough, a tenant may abandon the premises, constructively ending a lease. 2. Stay, pay full rent, and sue the landlord for breach of the implied warranty of habitability. If tenant wins, the court may  order  the  landlord  to  refund  part  or  all  of  tenant’s  rent   and to make the necessary repairs.

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** Generally advise tenants to keep paying rent. Landlord can file 3 day notice to evict if they stop paying rent.

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Habitability (cont'd)

Security Deposits

If the landlord does not fix the problems, some of the legal remedies include: 3. Repair and Deduct? Risky! The law does provide for the tenant to make necessary repairs himself and deduct the out-of-pocket costs from rent, not exceeding one month of rent. However, this is not advised unless the tenant is prepared to fight the matter in an unlawful detainer case. • Tenant cannot use this remedy more than 2 times in a 12-month period 4. Withhold Rent Until Repairs Are Made? Risky! If conditions are severe, a tenant, after giving notice to a Landlord, may withhold rent until repairs are made. Again, tenant must be prepared to fight in unlawful detainer case.

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• Allowable amount - No more than three times the monthly rent for furnished units or twice the monthly rent for unfurnished units. • Proper use of security deposit by landlord: -­‐ Application to rent defaults; -­‐ Repair of damages to premises, exclusive of ordinary wear  and  tear,  cause  by  tenant  or  tenant’s  guests;;  and -­‐ Cleaning of premises, beyond ordinary wear and tear, upon  tenant’s  move-out. • Landlord is not required to pay interest to tenant on security deposit. • If a lease allows, the landlord may apply the deposit to other unpaid monetary obligations [e.g. late fees, attorney fees, litigation costs]. See Cal. Civ. Code § 1950.5 - 1950.7.

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Security Deposit (cont'd)

Tenant’s  Right  to  Privacy

When must the landlord return the security deposit? • A landlord has 21 days to return a security deposit after the tenant moves out. • Within a reasonable time after notice is given to terminate tenancy, the landlord must notify the tenant of his right to request and attend an inspection of the unit prior to move-out.

• A landlord may only enter leased premises under these certain limited circumstances, with reasonable notice: -­‐ To make necessary agreed-upon repairs or improvements; -­‐ To supply necessary or agreed-upon services; -­‐ To exhibit the unit to prospective tenants, contractors, etc.; -­‐ To perform a pre-move-out inspection. • A landlord may enter a leased premises without reasonable notice under even more limited circumstances: -­‐ In an emergency; -­‐ When it appears that a tenant has abandoned the premises; -­‐ With a court order.

What to do if the entire deposit is not returned? • The landlord must provide (within 21 days) an itemized statement of all deductions, including expense receipts. • The tenant can dispute the amount of the returned deposit. S/he can try to negotiate with the landlord or file a claim for the money in Small Claims Court.

Remind your client: There is a three year statute of limitations to dispute the return of a security deposit.

It is always appropriate for a landlord to enter if the tenant is there and consents to the entry.

See Cal. Civ. Code § 1954.

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Covenant of Quiet Enjoyment

Covenant of Quiet Enjoyment (cont'd)

• Every  rental  agreement  contains  the  landlord’s  implied   covenant of quiet enjoyment, which means that the landlord implicitly agrees that the tenant will not be disturbed in his possession by the landlord or anyone  acting  on  the  landlord’s  behalf. Breach may result in “constructive  eviction” if tenant is not able to enjoy his unit in peace. (Cal. Civ. Code § 1927.)

Remedies: • Statutory damages of $100.00 for each day a landlord violates California Civil Code § 789.3. • A tenant may be entitled to contract damages under California Civil Code § 3300, including lost profits, lost good will, or moving expenses. Andrews v. Mobile Aire Estates 125 Cal. App. 4th. 578, 591.

• A landlord is also specifically prohibited from: 1. causing interruption in utility services; 2. changing locks; 3. removing doors or windows; or 4. removing  a  tenant’s  personal  property.

• A tenant may sue for actual damages and injunctive relief. Guntert v. City of Stockton, 55 Cal. App. 3d. 121, 151 (1976).

See Cal. Civ. Code § 789.3.

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Discrimination

Discrimination (cont'd)

• Protected Classes: Race, Ethnicity and Skin Color; National Origin; Religion; Gender; Sexual Orientation; Familial Status (i.e. children); Disability; Age (except senior housing); Source of Income.

Applicable Fair Housing Laws: Federal Laws: • Fair Housing Act and Amendments, 42 U.S.C. §§ 3601 et seq.

• Discriminatory conduct includes: refusal to rent, harassment, differential terms or treatment, retaliation, disparate impact.

California Laws: • Fair Employment and Housing Act, Cal. Gov. Code §§ 12955 et seq. • Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq.

• Discriminatory conduct against people with disabilities includes a refusal to make reasonable accommodations that are necessary for the people to occupy the housing.

Additional laws may apply to certain situations, such as federally subsidized properties and housing programs. 23

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Discrimination (cont'd)

Reasonable Accommodations

Legal Remedies for Victims of Discrimination: 1. File  an  administrative  claim  with  HUD  or  California’s   Department of Fair Employment & Housing • www.dfeh.ca.gov • www.hud.gov

California Rule on Reasonable Accommodations: • A change in rules, policies, practices or services • When such change is necessary • To afford a person with a disability equal opportunity to use and enjoy a dwelling See Cal. Gov. Code § 12927(c)(1).

2. File a lawsuit • Contact a local Fair Housing Agency

A reasonable modification is: • A change to the physical space • To allow a person with a disability to use and enjoy the premises • Cost borne by tenant except in federally subsidized housing. 25

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Reasonable Accommodations (cont'd)

Reasonable Accommodation (cont'd)

Timing: An accommodation can be requested at ANY TIME, from before a tenancy begins, up to the time that an eviction order is final.

How to ask for a Reasonable Accommodation: • Tenant should make request in writing. • Tenant should have a doctor or a health care provider confirm the need for an accommodation (usually through a letter). • Tenant does not need to disclose the nature of his/her disability, but that she has one. • Tenant should give the Landlord reasonable time to respond to the request.

Interactive process required: When an accommodation is requested, if the requested accommodation cannot be granted by the landlord, the tenant  and  the  landlord  must  engage  in  an  “interactive   process”  to  reach  a  compromise  that  will  meet  the  tenant’s   needs and will not be a burden on the landlord.

What if the request is denied? • Even after the interactive process, some landlords are unwilling to grant accommodation requests. • If this happens, the tenant may have an affirmative claim of housing discrimination.

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Rent Increases

Retaliation

Notice Requirements: • Landlords can impose rent increases and other changes to terms of tenancy with service of a 30-day notice. • If increase is more than 10%, 60-day notice required. Limits exist on the amount of increase for: • Subsidized housing (e.g., Section 8) • Housing covered by a Rent Ordinance • Most  “below  market”  rental  housing

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If a tenant takes action or complains to enforce his/her housing rights, it is illegal for the landlord to retaliate by raising the rent, reducing services, or evicting the tenant.



If  tenant  makes  a  complaint,  “repairs  and  deducts,”  or   withholds rent, tenants should document and keep copies of all documents in the event of landlord retaliation.



Under some circumstances, if a landlord takes action against  a  tenant  within  180  days  of  the  tenant’s  assertion   of his\her legal rights, there is a presumption of retaliation and the landlord must establish good and legitimate cause for the adverse action taken. (For example: an eviction notice must state the grounds for termination, even on a month-to-month tenancy.)

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Eviction Process Overview

Eviction Process Step One: Notice • 3 Day Notice to Pay Rent or Quit • 3 Day Notice to Quit for lease violation • 3 Day Notice to Cure Lease Violation • 30 Day Notice Terminating Month-to-Month Tenancy • 60 Day Notice Terminating Month-to-Month Tenancy (over one year duration) • 90 Day Notice Terminating Section 8 Tenancy or Subsidized Housing

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5/23/2013

Eviction Process (cont'd)

Eviction Process (cont'd) A Notice to Quit May be Served: • By personal delivery to the tenant; or • If the tenant is absent from her place of residence and usual place of business, by leaving a copy with a person of suitable age and discretion at either the residence or usual place of business of the tenant, and sending a copy through the mail addressed to the tenant at her place of residence. (A person of suitable age and discretion is anyone over the age of 18 years who is not obviously incompetent). • If a place of residence and business cannot be ascertained, or a person of suitable age or discretion cannot be found at either place, by affixing the notice to a conspicuous place on the property and sending a copy to the tenant at the property via first-class U.S. Mail. • A thirty-day or sixty-day notice to quit may also be served by certified or registered mail. See Cal. Code of Civ. Proc. § 1162.

No notice required when: • The tenant continues in possession after the expiration of a fixed term lease. • The tenant is a servant, employee, licensee or agent and the employment, agency or license has been lawfully terminated. • The tenant has given a written thirty-day notice of intention to terminate the rental agreement but has failed to vacate in the time specified by the notice.

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5/23/2013

Eviction Process (cont'd)

Eviction Process (cont'd)

Expiration of Notice:

Good Cause Required:

• The notice period consists of calendar days. This means that every day on the calendar is counted. • The first day of the notice period is the day after service of the notice. • If the last day of the notice falls on a weekend or holiday, the tenant has until the next business day to perform the act requested by the notice.

• Public and\or government subsidized housing (including BMR housing) • Section 8 voucher tenancy • Rent controlled\eviction controlled jurisdiction • Mobile home tenancy • Long-term lease agreement

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5/23/2013

Eviction Process (cont'd)

Eviction Process (cont'd)

Unlawful Detainer Process: • Unlawful  Detainer  (“UD”)  is a lawsuit to obtain eviction order from the court after eviction notice expires and tenant has not vacated. • UD filed in state superior court, personal service on defendants (tenants). • Defendant has five days to file Answer\Response. • Defendant often files Request for Jury Trial and Settlement Conference (if available). • Plaintiff\Landlord requests trial setting. • Court sets dates for Settlement Conference and Trial, about 2-3 weeks  after  Plaintiff’s  request. • Most cases settle at settlement conference (if available). • Cases that do not settle go to trial.

Typical Defenses: • Non-payment of rent cases -­‐ Tenant does not owe the amount stated -­‐ Breach of the warranty of habitability

• Eviction on other grounds and\or reason not stated in the notice -­‐ Retaliation -­‐ Discrimination • Where good cause required -­‐ Landlord does not have good cause, and\or the allegations of wrongdoing are not true

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5/23/2013

Eviction Process (cont'd)

Eviction Process (cont'd)

Preliminary Motions: • Application for extension of time to plead: -­‐ Ex parte application - up to 10 days • Motion to Quash: -­‐ Improper service -­‐ Failure to state a cause of action (Delta motion) • Demurrer: -­‐ Failure to state a cause of action, e.g., notice does not conform to CCP requirements • Motion to Strike: -­‐ Prayer for relief includes improper request -­‐ Improperly verified complaint

Settlement: • Where settlement conferences are available, cases will settle before trial (90%+). • Note: Settlement conferences are not available in Napa County although the parties may confer and often do before trial

• Early settlements (before the mandatory settlement conference) are often better settlements. • Useful to help tenant assess priorities and constraints: -­‐ Can you afford this rent in the future? -­‐ If you have to move, how much time do you need? -­‐ How important is it to maintain good credit or clean tenant history? Are you judgment-proof?

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Subsidized Housing

Subsidized Housing

Subsidized & Affordable Housing: • Section 8 Housing Choice Voucher – allows the voucher holder to rent a market-rate unit but to pay only 30% of income toward rent. • Project Based Section 8 – the unit is subsidized, not the person. The tenant pays 30% of income toward rent. • Other HUD Subsidies – private landlords (often nonprofit housing developers) get $$ from HUD. Examples include Section 202, Section 236, etc. • Shelter Plus Care – program that has different requirements by locality, sometimes a voucher for the individual, sometimes a subsidized unit. • Low Income Tax Credit – private landlords who receive tax credits for keeping rents low.

Subsidized & Affordable Housing: • Generally can only be evicted for good cause: • Good cause: major lease violations, non-payment of rent • If Section 8 voucher holder – 90 day no-cause notice after first year • If person says they are in subsidized housing, flag the case! • An eviction may mean permanent bar to subsidized housing.

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Mobile Homes

Foreclosure

Mobile Homes: • Where a person owns his or her mobile home and rents a space in a mobile home park, special rules apply: -­‐ Mobile Home Residency Law, Cal. Civ. Code §§ 798 et seq. -­‐ Local mobile home rent ordinances. • An eviction from a mobile home park may lead to the loss of a mobile home as the park can put a lien on the mobile home for unpaid rent/charges. • RVs that have been in place for more than thirty days are considered  “mobile  homes”  and  the  Mobile  Home   Residency Law applies • A person renting a room in a mobile home is protected by tenant – landlord laws.

Typical tenant questions: • Do  I  have  to  pay  rent  if  my  landlord  is  “in  foreclosure”? • How do I find out if my rental unit is in danger of foreclosure? • Do I have to move out if my rental unit is foreclosed? • Will I get my deposit back, and from whom?

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Foreclosure (cont'd)

Foreclosure (cont'd)

Basic Foreclosure Process: • Homeowner  (“HO”)  gets  behind  in  payments • Lender required to counsel HO on options • Lender serves a Notice of Default (NOD) • Lender  serves  Notice  of  Trustee’s  Sale  (NTS)  (90  days   after NOD) • Foreclosure sale takes place (20 days after NTS) • Deed  Upon  Trustee’s  Sale  is  recorded,  creating  a   presumption the sale was done properly and title is now in the name of the buyer at the sale • New owner serves notice to vacate on occupants • “Cash  for  keys”  deal  is  negotiated,  or  UD  filed

Post-Foreclosure Notices: Depends on whether occupant is the former owner or a tenant of the former owner: • Three-Day Notice to Vacate for former owner • 90 Day Notice for Month-to-Month Tenants • Long term lease for bona fide tenant remains in effect until it expires, unless new owner to occupy home • 30 Day Notice for tenants if former owner also resides in the property and tenant is not a Bona Fide Tenant (PTFA) -­‐ Direct relative of former owner (spouse, parent, child) -­‐ Agreement    not  an  ‘arms-length’  transaction -­‐ Tenant paying substantially less than fair market value for rent

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6/13/2013

Your Help is Needed!

New Tenant Protections AB 1953 (Ammiano) prohibits a new property owner who has not notified the tenant of the change in ownership from issuing a three-day notice to pay rent or quit for past-due rent that h accrued dd during i the h owner’s ’ period i d off noncompliance. Landlords can sue for the rent in small claims or regular civil court. (See Cal. Civ. Code § 1962.)

Sign up for the Rural Justice Collaborative clinics! Check in with your firm’s Pro Bono Coordinator for more information.

SB 1191 (Simitian) creates a statutory duty to disclose notices of default to prospective tenants. In the event of nondisclosure by a landlord landlord, the tenants may void the lease and sue for damages (twice the rent or twice actual damages) or elect to remain in possession and deduct one month’s rent. The law only applies to one- to four-unit buildings. (See Cal. Civ. Code § 2924.85.)

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RURAL JUSTICE COLLABORATIVE CLIENT INTAKE FORM If you need help filling out this form, please ask a staff person. Last Name: First Name: Middle Name:

FOR OFFICE USE ONLY  Entered  Closed Intake Date:

Street Address:

Apartment Number:

Date Closed: Case Number:

City:

State:

Zip Code:

Intake Worker: Staff Atty:

Home Phone Number:

Cell or Message Phone: Volunteer Atty:

Date of Birth:

Email Address: Intake Location:

Primary Language: Gender?

 Male

Do you need an interpreter?  Yes  No  Female

Opposing Party:

 Transgender

Race/Ethnicity (please check all that apply):  Hispanic/Latino  Not Hispanic/Latino  American Indian/Alaska Native  Black/African American  Native Hawaiian/Pacific Islander  White  Asian:  Asian Indian  Cambodian  Chinese  Filipino  Japanese  Korean  Laotian  Vietnamese  Pacific Islander:  Guamanian/Chamorro  Hawaiian  Samoan  Other Pacific Islander

Have you or anyone who lives with you ever been threatened or hurt by a family member or partner? How many people live in your home? __________

How many over age 60? __________

 Yes

 No

How many children? __________

Does anyone in your household have a disability?

 Yes

 No If yes, who:  Self

 Other

Has anyone in your household served in the military?

 Yes

 No If yes, who:  Self

 Other

How much does your household get each month from: Employment (work)

$

CalWORKS or CalLearn (welfare)

$

General Assistance (GA)

$

Social Security

$

Supplemental Security Income (SSI)

$

State Disability Insurance (SDI)

$

Unemployment Insurance (UIB)

$

Veteran’s  Benefits

$

Other:

$ Total:

How did you hear about this clinic? How long have you lived in this community? May we contact you in the future regarding your experience at this clinic?

 Other Asian

 Yes

Please choose which best describes you:  Straight/Heterosexual  Gay/Lesbian  Bisexual  Other Have you received free legal services in the past?  Yes  No If so, where

$

 No  Prefer Not to Say

I certify that the above statements are true. Signature

Date The Rural Justice Collaborative is a project of OneJustice in partnership with other non-profits and law firms. Revised 5/16/13

RURAL JUSTICE COLLABORATIVE CASE CLOSURE SUMMARY Date:

Time Appointment Started:

Time Appointment Ended:

Name of Client:

Name of Volunteer:

Name of Supervising Attorney:

DACA clinics: Status of DACA application at end of appointment (check only ONE):  DACA application ready for submission  DACA application partially completed  DACA applicant found to be ineligible for DACA Client Next Steps (check all that apply):  None, application complete and will be submitted by the legal services organization  Client to submit complete application  Client to complete application and submit  Client to return to the legal services organization to complete and submit  Client advised the application is missing documentation and advised to collect the documents needed  Client referred to immigration attorneys for possible eligibility for other types of immigration relief  This was Part I of a two-part clinic. Client advised to return for Part II.

Housing clinics: Please check the boxes below to summarize the legal services provided and status of the case at the end of the appointment (check all that apply): Client advised about:  Habitability  Security Deposits  Rights to Privacy and Quiet Enjoyment  Discrimination  Reasonable Accommodations and Disability Issues  Rent Increases  Retaliation  Eviction/Unlawful Detainer  Subsidized or Affordable Housing  Mobile Home Issues  Foreclosures (owner)  Foreclosures (tenant)  Other: Brief services provided during the clinic:  Assistance with pro per letter to landlord  Assistance completing court forms  Assistance in navigating settlement or court proceeding  Assistance filling out local housing agency pro per complaint or claim  Assistance in responding to eviction notice from subsidized or public housing  Other: Please describe the status at the end of the clinic:  Legal  services  program  has  accepted  the  client’s  case  for  additional  assistance  Client has been provided with an outside referral  Case closed – limited scope only  Other (please describe briefly):

The Rural Justice Collaborative is a project of OneJustice in partnership with other non-profits and law firms. Revised 5/16/13

II.

LEGAL CONTEXT FOR HOUSING ISSUES

II. LEGAL CONTEXT FOR HOUSING ISSUES A.

State Law

An unlawful detainer is a statutory cause of action, as opposed to an action at common law. This means that the basic requirements of the eviction process are set forth in the Civil Code and the Code of Civil Procedure. The Civil Code sections you will be dealing with are Civil Code §§ 789-793 (termination of estates); §§ 1940-1954.1 (leasing of land and dwellings), §§ 1980-1991 (disposition of personal property remaining on premises at termination of tenancy); and Code of Civil Procedure §§ 415.10-415.50 (manner of service of summons), § 418.10 (objections to jurisdiction), § 430.10 (grounds for demurrer), §§ 435-436 (grounds for motions to strike), §§ 1161-1179a (unlawful detainer). B.

Federal Law

Subsidized tenancies are governed by the United States Code and, more specifically, by the Code of Federal Regulations. These regulations determine how much rent is to be paid by the resident of a subsidized unit and prohibit eviction unless there is good cause and certain due process is followed. C.

Local Law

In addition to State law, some municipalities have passed ordinances that govern the eviction process. For example, the eviction process in East Palo Alto is governed by the Rent Stabilization Ordinance of the City of East Palo Alto. The Ordinance limits the amount of rent increases a landlord can  impose   annually  (rent  control),  and  prohibits  evictions  unless  there   is  “good  cause”  as  defined  by   the Ordinance, such as failure to pay rent or other substantial breaches of the lease (eviction control). Local practices (including filing procedures and settlement practice) vary by county, so please consult carefully with the supervising attorney before advising your client.

CALIFORNIA CITIES WITH RENT CONTROL Rent Control Berkeley Beverly Hills East Palo Alto Hayward Los Angeles Los Gatos Oakland Palm Springs San Jose Santa Monica West Hollywood Mobile Home Rent Control Calistoga Concord Colati Escondido Fonta Grover Beach Malibu Milpitas Morgan Hill Novato Pleasonton Redlands Rohnert Park Santa Cruz Counties (unincorporated areas only) San Jose (separate from regular rent control) San Juan Capistrano Santa Rosa Sonoma County Thousand Oaks Union City Windsor Yucaipa

Other Measures Short of Rent Control Campbell (mediation only) Fremont (mediation only) Gardena (mediation only) Glendale (“just cause” eviction only) San Diego (“just cause” eviction only) San Leandro (non-binding review & mediation only) Thousand Oaks (rent control for pre-1988 tenancies)

III.

TYPES OF HOUSING AND TENANCIES

III.

TYPES OF HOUSING AND TENANCIES

There are many different types of housing. It is important to determine early in the process of assisting a client what type of housing they are living in. The rights of the resident will vary depending on the type of housing. For example, tenants living in government subsidized housing or a mobile home park cannot be evicted without good cause and due process. Some different types of housing are:          

Private market-rate rental unit; Federally subsidized private rental unit; Federally subsidized public housing rental unit owned\operated by a local housing authority; Section 8 housing subsidy voucher used to rent private rental unit; Below-market-rate (BMR) private rental unit (i.e., Low-Income-Housing-Tax-Credit property, and other local programs); Mobile home tenancy; Single renter of room in owner-occupied home; Owner of house or condominium; Former owner of house or condominium post-foreclosure; and Tenant in a home post-foreclosure.

Tenancies are classified as either fixed-term (e.g., one-year lease) or periodic (usually month-tomonth) tenancies. A fixed-term   tenancy   cannot   be   terminated   during   the   term   without   “good   cause”   (e.g., a serious lease violation). At the end of a fixed-term tenancy, the landlord and tenant can renew for another term (e.g., for another year). If a tenant stays in his/her unit without renewing, two things can  happen:  (1)  the  landlord  can  reject  the  tenant’s  rent  and  evict  the  tenant;  or (2) the landlord can accept the rent and a month-to-month tenancy is created (see below). A periodic tenancy, on the other hand, continues for successive periods of the same length (e.g., month-to-month). Unlike with fixed-term tenancies, periodic tenancies do not have end dates and must be terminated with written notice. Tenants can always terminate by providing the landlord 30 days written notice. The landlord may terminate the tenancy with proper notice at any time, even without “good  cause”.    Notice  length depends on the type of housing and the length of the tenancy.

IV.

COMMON TENANCY ISSUES

IV. A.

COMMON TENANCY ISSUES

Habitability

Tenants have a right to habitable housing. Landlords  may  not  rent  their  property  “as  is”  to  avoid   their duty to provide habitable housing. Habitability requirements include:          

Working plumbing (including hot and cold running water) and heating; Electricity and lights that work and are safe (no exposed wiring); Roof, walls, and windows that do not leak and are not otherwise broken; Clean common areas, free from trash and debris; No rats, mice, cockroaches, or mold; Enough trash cans to keep trash from overflowing; Safe floors, stairs, and railings; Window screens that keep out insects; Working phone jack; and Door and window locks.

If we see a tenant before the tenant has begun to withhold rent, we suggest that the tenant try to  force   the   landlord  to  make   repairs  by  some  method  other  than  a  rent  strike.    The   tenant’s  options   include: complaining in writing; calling inspectors; and making the repairs and deducting the cost from the rent. Civil Code §§ 1941  and  1942  define  a  landlord’s  responsibility  for  repairs.    If  a  landlord  neglects   this responsibility, a tenant has the right to have the repairs done and deduct the cost of the repairs from the rent. The tenant also has the right to notify the proper authorities about the repair problems. The law also states that a landlord cannot legally retaliate against a tenant by raising the rent, decreasing services, or trying to evict the tenant. If a landlord will not make necessary repairs, the tenant should notify the building inspectors (unless living in an illegal unit). If a tenant makes a complaint to the building inspectors, an inspector will go to the unit and inspect for violations. If there are violations of the building code, the inspector will issue a notice of violation to the landlord. Even though the code enforcement officers usually do not take any further action, the notice of violation is often enough to convince the landlord to make repairs. The tenant should also send a letter demanding repairs to the landlord. The tenant should keep a copy of the letter. Even if the landlord has been unresponsive to oral requests, the tenant should send a letter so as to make a paper record. If the landlord does not take action after the letter and the call to the building inspector, then the tenant could send another letter stating that if the repairs are not made in a reasonable length of time (a maximum of thirty days) the tenant will exercise the right to have the repairs made and deduct the  cost  from  the  next  month’s  rent.    This  remedy  can  only  be  used  twice  in  any  twelve  month  period,   although the months can be consecutive. This means that the repairs cannot cost more than two month’s  rent.    If  the  repair  problems  affect  more than one apartment in the building, the tenant may be able to do a combined repair and deduct with other tenants.

B.

Security Deposits

Security deposits must equal no more than three times the monthly rent for furnished units and twice the monthly rent for unfurnished units. After the tenant vacates, the landlord has 21 days to either return all deposits to the tenant or provide the tenant with an accounting of the deposits. Civil Code § 1950.5. If the landlord fails to do so, the tenant may take the landlord to Small Claims Court and sue for the amount of the deposits not returned, in addition to double the amount of the deposits in cases of bad faith withholding of the deposits. We always recommend that before filing a claim, the tenant send a demand letter to the landlord, stating the amount in dispute and providing a deadline by which to pay. C.

Rights to Privacy and Quiet Enjoyment

Every lease includes an implied covenant of quiet enjoyment (Civil Code § 1927). In general, this means that the tenant has the right to peaceably enjoy the home free from unwanted nuisance or harassment from the landlord or other sources within the control of the landlord. Civil Code § 1954 specifically provides that a landlord is required to provide written notice 24-hours in advance of entry to inspect, repair, or to show for lease or sale. If a landlord attempts to access the unit for a nonemergency without giving prior notice, the tenant is entitled to refuse access. The landlord is also specifically prohibited from: (1) causing interruption in utility services; (2) changing  locks;  (3)  removing  doors  or  windows;  or  (4)  removing  a  tenant’s  personal  property.  Remedies   in a successful claim for breach of the covenant of quiet enjoyment may include statutory damages of $100 for each day of beach, contract damages (e.g., including lost profits, lost good will, or moving expenses, actual damages, and injunctive relief. D.

Discrimination

The federal Fair Housing Act, California Fair Employment and Housing Act, and the Unruh Civil Rights Act, among other laws, prohibit discrimination in housing. The laws apply to landlords, their managers, and anyone related to the provision of housing in just about any context. The laws prohibit discrimination on the basis of race\ethnicity\skin color\national origin, disability, religion, gender, sexual orientation, familial status (families with children), marital status, source of income, or any other arbitrary trait. Discrimination is prevalent in the renting of units, though it is not often done overtly. For example, a landlord may place a person in a protected class on the bottom of a wait list or make statements to discourage that person from renting. Discrimination also occurs in the treatment of tenants even though the landlord has rented to the person in a protected class. For example, rules of the tenancy may be enforced differently, or rules may serve as a deterrent to certain residents such as rules that affect children unfairly. Sexual harassment of a tenant is a form of gender discrimination. Discrimination is a defense in an unlawful detainer case if the tenant establishes that the landlord’s  motive  for  the  eviction  is  discriminatory.    The  productivity  of  a  discrimination  defense  in  an   eviction varies from case to case. Discrimination is not a useful defense in a case of nonpayment of rent; but, for example, if a landlord had not evicted others in the past for using the roof and then attempted

to evict just one person using the roof, due to sexual orientation, a defense of discrimination could be a good option. In addition to prohibiting discriminatory acts, the law also creates an affirmative obligation of the landlord to make reasonable accommodations for a person who is disabled, if requested and if necessary for the person to live in the home as a non-disabled person would. For example, a blind person with a seeing-eye  dog  does  not  have  to  conform  to  a  “no  pets”  rule  because  the  dog  is  not  a  pet.     In a case where structural changes need to be made to a unit to allow equal use by a person with a disability, that person may be responsible for the cost of the modifications and the cost to return the unit to its original condition. E.

Reasonable Accommodations and Disability Issues

A reasonable accommodation  is  a  change  in  a  landlord’s  usual  rules,  policies,  or  practices  when   a change is necessary and reasonable for a tenant with a disability to fully use and enjoy the housing. The  accommodation  has  to  be  directly  related  to  the  tenant’s  disability. Reasonable accommodations in housing are required under the Federal Fair Housing Act and California’s  Fair  Employment  &  Housing  Act.    Under  federal  law,  a  person  is  considered  “disabled”  and   may request a reasonable accommodation if the person has a physical or mental impairment that substantially limits one or more major life activities. This may include someone with a mental health or developmental disability, people with alcoholism, and people with a past history of drug addiction, but who are not currently using illegal drugs. In California, the Fair Employment and Housing Act provides a broader  definition  of  “disability”  that  includes  people  with  physical  or  mental  impairments  that  limit  one   or more major life activities. 1. Requesting a Reasonable Accommodation In most cases, the landlord or Housing Authority does not have to provide a reasonable accommodation unless the tenant asks for one. Tenants can request accommodations at any time during the tenancy. Even if the disability existed when the tenant moved in, the tenant can ask for an accommodation. The person requesting an accommodation must have a disability under the fair housing laws. It is up to the person seeking the accommodation to disclose enough information about the disability. It is important to show a nexus between the disability and what accommodation is being requested. The tenant should make a written request briefly describing her disability and why her disability requires  an  exception  to  the  landlord’s  normal  policy.   The person does not necessarily need to disclose the specific disability, so long as she gives enough information – like specific symptoms – to show why she needs the accommodation. Landlords or housing providers may develop a common form for RA requests, so long as they equally consider requests made orally or in another form of writing (like a letter). The landlord or Housing Authority can ask for medical verification, but can only ask questions about the disability that are relevant to the accommodation requested. Landlords and Housing Authorities must always consider whether a reasonable accommodation would allow the tenant to follow the terms of the lease. The landlord may require strong proof that where there has been violent behavior, that it will not happen again. If the accommodation does not provide sufficient security that the tenant is no longer a threat to others, the landlord does not have to

grant the request and can evict the tenant. A reasonable accommodation does not have to be granted to a person if granting that accommodation will: (1) create a direct threat to the health or safety of other tenants; or (2) result in substantial physical damage to the property of others. 2. The  Landlord’s  Responsibilities The landlord or Housing Authority only has to make an accommodation if it is necessary because of  the  tenant’s  disability  and  if  it  is  not  a  significant  burden.  The  landlord  or  Housing  Authority  does  not   have to make an accommodation if: 1. 2. 3.

The accommodation would cost the landlord too much money, The accommodation would be an administrative burden, or The accommodation would fundamentally change the nature of the housing that the landlord provides.

For example, a landlord must allow a person who needs an emotional support animal as a reasonable accommodation to have one despite a no pets policy. But, the landlord cannot be expected to   care   for   the   animal,   as   that   would   go   above   and   beyond   the   landlord’s   responsibility   to   provide   housing for the tenant. Housing providers must absorb the cost of granting an accommodation. Therefore, the accommodation requested cannot result in an undue financial or administrative burden on the housing provider. This burden is going to be different for each housing provider; no bright line. If the housing provider believes that the requested accommodation is going to result in an undue burden, he must engage in the interactive process and see if there is a less costly option for meeting the disabled person’s  needs;  he  should  not  automatically  deny  the  request. If the requested accommodation cannot be granted by the landlord, the tenant and the landlord must  engage  in  an  “interactive  process”  to  reach  a  compromise  that  will  meet  the  tenant’s  needs  and   will not be a burden on the landlord. If a reasonable accommodation has been denied, the tenant may have an affirmative claim of housing discrimination. He can file an administrative claim with HUD or California’s   Department   of   Fair   Employment   &   Housing.     An   attorney   is   not   needed   for   this.   In the alternative, the client can consult with an attorney about filing a lawsuit. 3. Reasonable Accommodations and Evictions Reasonable accommodations can be used to stop evictions. Even tenants who have engaged in allegedly threatening or dangerous behavior are entitled to second chances at their tenancies if the behavior was related to a disability and they have a plan in place to minimize or eliminate the behavior in the future. 4. Examples of Reasonable Accommodations Some reasonable accommodations include:   

Emotional Support Animals & Service Animals (No extra deposit allowed); Behavior (so long as not a direct threat); More time to meet deadlines or comply with notices;

       

F.

More time to move out; Live-in aides (Note: They do not become tenants on the lease); Economic accommodations; Co-signors; Adjusted rent due date; Payment plans; Waiver of fee for breaking a lease; and Anything else, so long as the person requesting the accommodation can show that it is necessary because of her disability. Rent Increases

Under California law, in non-rent control jurisdictions, a landlord is free to increase or decrease the amount of rent under the same terms that he/she can make changes to other terms of the tenancy, by service of a written 30-day notice. However, the landlord must provide at least sixty days advance notice of a rent increase that exceeds ten percent (10%). In a jurisdiction with rent control, such as East Palo Alto and San Jose, rent increases are restricted to those that comply with the rent control ordinance which limits the amount of rent increase that may be imposed annually. A rent board exists to oversee the rental rates in East Palo Alto, for example. In government-subsidized tenancies, the amount of rent paid is governed by federal regulations and is based on   the   tenants’   income.     Rent   is   calculated   according   to   a   formula—but is generally approximately 30% of the household income. Rent increases only when the household income increases. The rent in Below-Market-Rate units is often determined by a schedule set by the state or local authority providing the subsidy that allows for the below-market rents. G.

Retaliation

It is unlawful for a landlord to retaliate against a tenant who asserts his\her legal rights, such as contacting a code enforcement officer to report uninhabitable conditions or otherwise complaining about   conditions   of   the   housing   or   the   landlord’s   conduct.     Retaliation   is   a   defense   to   an   unlawful   detainer, and may support an affirmative cause of action against a landlord. Civil Code § 1942.5 creates a rebuttable presumption of retaliation where the landlord takes action to evict a tenant within 180 days of the tenant taking steps to enforce his/her rights to a habitable home.

MENTAL HEALTH ADVOCACY PROJECT Asistencia Legal Para La Salud Mental

Law Foundation of Silicon Valley (800) 248-MHAP

152 North Third Street, 3rd Floor San Jose, California 95112 • Fax (408) 350-1158 • Telephone (408) 294-9730

• TDD (408) 294-5667

REASONABLE ACCOMMODATIONS IN HOUSING What is a reasonable accommodation? A reasonable accommodation is a change in a landlord’s usual rules, policies, or practices when a change is necessary and reasonable for a tenant with a disability to fully use and enjoy the housing. The accommodation has to be directly related to the tenant’s disability. Who can ask for a reasonable accommodation? Under federal law, a person is considered “disabled” and may request a reasonable accommodation if the person has a physical or mental impairment that substantially limits one or more major life activities. This may include someone with a mental health or developmental disability, people with alcoholism, and people with a past history of drug addiction, but who are not currently using illegal drugs. In California, the Fair Employment and Housing Act provides a broader definition of “disability” that includes people with physical or mental impairments that limit one or more major life activities. Which landlords must provide reasonable accommodations? All landlords, unless the tenant is renting a room in the house where the owner lives and the owner is only renting out one room. The Housing Authority must also grant reasonable accommodations. What is the process for a tenant to ask for a reasonable accommodation? In most cases, the landlord or Housing Authority does not have to provide a reasonable accommodation unless the tenant asks for one. The tenant should make a written request briefly describing her disability and why her disability requires an exception to the landlord’s normal policy. The landlord or Housing Authority can ask for medical verification, but can only ask questions about the disability that are relevant to the accommodation requested. Can tenants ask for accommodations even if they didn’t tell the landlord about their disability when they moved in? Yes. Tenants can request accommodations at any time during the tenancy. Even if the disability existed when the tenant moved in, the tenant can ask for an accommodation. Does a landlord have to accommodate a tenant who has been violent as a symptom of his or her disability? Landlords and Housing Authorities must always consider whether a reasonable accommodation would allow the tenant to follow the terms of the lease. However, the landlord may require strong proof that the behavior will not happen again when violence is involved. If the accommodation does not provide sufficient security that the tenant is no longer a threat to others, the landlord does not have to grant the request and can evict the tenant. What are some examples of possible reasonable accommodations? (1) A tenant with a mental health disability is emotionally dependent on his cat and has a doctor’s note to verify his medical need for the cat. His landlord has a “no pets” policy. The landlord Updated August 2012

must make an exception to the “no pets” policy for this tenant as a reasonable accommodation and allow the tenant to have the cat. (2) A tenant with schizophrenia was loud and disturbed her neighbors in the middle of the night for a period of two weeks due to her disability. Since that time, the tenant’s emotional state has improved and she is no longer disturbing her neighbors, but the landlord wants to evict her for the past behavior. Given the improvement of her behavior, the landlord should give the tenant a second chance as an accommodation and not evict her. (3) A tenant with obsessive-compulsive disorder collects stacks of newspapers that fill his apartment. The landlord inspects the apartment, finds that the newspapers are a fire hazard, and starts the eviction process. Because of his disability, the tenant is not able to remove the belongings himself, but needs help from his case manager and other social service providers. As a reasonable accommodation, the landlord would need to give the tenant more time to get the apartment in compliance with the fire code since the tenant needs to coordinate with his support service team. (4) A Section 8 voucher-holder takes mental health medications that make it very difficult for him to wake up early in the morning. The Housing Authority scheduled his HQS inspection for 9:00 AM. As a reasonable accommodation, the Housing Authority must reschedule the inspection for a time that the resident can be awake to participate. What makes an accommodation “reasonable”? The landlord or Housing Authority only has to make an accommodation if it is necessary because of the tenant’s disability and if it is not a significant burden. The landlord or Housing Authority does not have to make an accommodation (1) if the accommodation would cost the landlord too much money, (2) if the accommodation would be an administrative burden, or (3) if the accommodation would fundamentally change the nature of the housing that the landlord provides. For example, a landlord must allow a person who needs an emotional support animal as a reasonable accommodation to have one despite a nopets policy. But, the landlord cannot be expected to care for the animal, as that would go above and beyond the landlord’s responsibility to provide housing for the tenant. How do I request a reasonable accommodation? Following this information sheet, you will find a sample letter. You can fill in the information and submit the request to your landlord or the Housing Authority. Don’t forget to keep a copy of this letter for yourself! What do I do if the landlord or Housing Authority denies my request or does not respond? If, after submitting your reasonable accommodation request, the landlord or Housing Authority does not respond, contact Mental Health Advocacy Project at 1-800-248-MHAP or (408) 294-9730.

This information sheet is intended to provide accurate, general information regarding legal rights. It does not constitute legal advice. Because laws and legal procedures are subject to frequent change and differing interpretations, the Mental Health Advocacy Project cannot ensure the information in this information sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation.

Updated August 2012

Date:

Re:

Request for Reasonable Accommodation

Dear

,

I am a tenant at I am writing to request a reasonable accommodation of my disability pursuant to state and federal fair housing laws. A reasonable accommodation is a change in policies, practices, rules or services that may be necessary to afford a person with a disability an equal opportunity to use and enjoy his or her housing. See 42 U.S.C. § 3604(f)(3)(b); Cal. Gov’t Code §§ 12927, 12955. I am a person with a disability. I experience the following diagnosis and/or symptoms that affect my ability to use my housing:

Because of my disability, I require a change to the following policy, practice, rule or service in order to fully utilize my housing:

With this letter, I ask that you grant my request for the above-mentioned change. If you have any questions about my request, you can contact me at this phone number: . Under the law, you cannot deny my request without discussing possible alternatives with me if you feel that you cannot grant it exactly as I have stated it above. The law also requires you to respond promptly to my request. Thank you for your consideration. I look forward to hearing from you. Sincerely,

Updated August 2012

5/23/2013

FAIR HOUSING FOR PEOPLE WITH DISABILITIES Kim Pederson, Senior Attorney Mental Health Advocacy Project/ Law Foundation of Silicon Valley (408) 280-2467 [email protected]

Goals for Today: Brief overview of the fair housing laws and who they protect.  More detailed overview of disability-related protections and what tenants need to do to avail themselves of the protections.  Discussion of issues specific to homeless shelters.  To help issue spot! 

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5/23/2013

Fair Housing Laws 

The Fair Housing laws prohibit discrimination in housing.  Homeless

shelters, transitional housing, etc. are considered to be housing accommodations under the fair housing laws  The fair housing laws are California’s Fair Employment & Housing Act and the Federal Fair Housing Act. 

What is housing discrimination?  Treating

people differently based on their membership in a protected class  Refusing to grant reasonable accommodations

Disability Rights Laws 

Americans with Disabilities Act (“ADA”)  Homeless

shelters are considered to be public accommodations under Title III of the ADA  Heightened obligation to make public accommodations readily accessible 

Section 504 of the Rehabilitation Act (“§ 504”)  Applies

to all programs receiving federal funding  Requires recipients of federal funds to take affirmative steps to make their programs accessible to people with disabilities

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5/23/2013

Coverage of the Fair Housing Laws  

Not just landlords! ALL providers of housing-related services  Housing

Authority  Municipal Government/Code Enforcement  Real Estate Agents/Brokers  Homeless Shelters & Transitional Housing  Rented Rooms (except when the owner lives in the house and only rents out one room)

Protected Classes 

In addition to disability, state and federal fair housing laws protect people in the following categories:  Race,

Color, National Origin, Ancestry  Familial Status, Marital Status  Religion, Sex/Gender, Sexual Orientation

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5/23/2013

Definition of Disability Physical or mental impairment that limits one or more of a person’s major life activities; or  A record of having such impairment; or  Being perceived as having such impairment. 

Source: California Government Code § 12955.3

Definition, continued: Use of Controlled Substances The definition of “disability” includes past use or abuse of a controlled substance; e.g. a recovering alcoholic or drug addict  However, it does not include current use or addiction to a controlled substance.  Rationale: you do not want your tenants engaging in illegal behavior on your property. 

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5/23/2013

Inquiries at Admission (or any time) Permissible 







Do you have a criminal  history?  Do you currently use illegal drugs?  Have you ever been evicted from another place?  What is your current amount  & source of income?

Impermissible Can you live independently? Have you ever been in a mental hospital? Are you currently taking medication? Do you receive SSI? Do you need special accommodations for your disability?

Reasonable Accommodations: Definition 

A reasonable accommodation is: A

change in rules, policies, practices or services  When such change is necessary  To afford a person with a disability equal opportunity to use and enjoy a dwelling. Source: Cal. Govt. Code § 12927(c)(1)

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5/23/2013

Reasonable Accommodation Logistics 



TIMING: An accommodation can be requested at ANY TIME, from before a tenancy begins, up to the time that an eviction order is final. Interactive process required: when an accommodation is requested, if the requested accommodation cannot be granted by the landlord, the tenant and the landlord must engage in an “interactive process” to reach a compromise that will meet the tenant’s needs and will not be a burden on the landlord.

Do the “D-A-N-C-E”  

So, a tenant wants to request an accommodation… Do the D-A-N-C-E!  D:

Disability  A: Accommodation  N: Necessary  C: Cost  E: Effect 

Remember: the “interactive process” is like a dance.

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5/23/2013

Step 1: D - Disability 





The person requesting an accommodation must have a disability under the fair housing laws. It is up to the person seeking the accommodation to disclose enough information about the disability in order to show why the accommodation is needed. The person does not necessarily need to disclose the specific disability, so long as she gives enough information – like specific symptoms – to show why she needs the accommodation. 

Description, not label is most important

Step 2: A - Accommodation 

Next, the person must request an accommodation A change in policies or practices  Housing providers should not suggest that residents may need accommodations  It is advisable to notify all residents of your reasonable accommodation policy so that they can decide whether to avail themselves of it 





No “magic words” required

Forms: landlords or housing providers may develop a common form for RA requests, so long as they equally consider requests made orally or in another form of writing (like a letter)

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Step 2: A – Accommodation Commonly-Requested Accommodations 

Emotional Support Animals & Service Animals   



 

No distinction under the FH laws They are NOT pets! Note: No extra deposit!

  

Behavior (so long as not a direct



threat) 



More time to meet deadlines or comply with notices Live-in aides 

Note: They do not become tenants on the lease

More time to move out Economic accommodations:



Co-signors Adjusted rent due date Payment plans Waiver of fee for breaking a lease

ANYTHING ELSE, so long as the person requesting the accommodation can show that it is necessary because of her disability.

Step 3: N - Necessary 





The person with a disability must show why the accommodation is necessary because of her disability. In other words, there must be a nexus between the accommodation and the disability Sometimes, but not always, it is helpful to have documentation of the nexus from a doctor or social worker.  

NOTE THAT THIS IS NOT A REQUIREMENT But, the housing provider can ask for more information as part of the interactive process

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Step 4: C - Cost 







Housing providers must absorb the cost of granting an accommodation. Therefore, the accommodation requested cannot result in an undue financial or administrative burden on the housing provider. This burden is going to be different for each housing provider; no bright line. If the housing provider believes that the requested accommodation is going to result in an undue burden, he must engage in the interactive process and see if there is a less costly option for meeting the disabled person’s needs; he should not automatically deny the request.

Step 5: E - Effect 



Lastly, the effect of the requested accommodation cannot be a fundamental change in the way that the housing provider operates his business. For example, the tenant cannot require a landlord to provide extra services or go completely outside the scope of the terms of the program.

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5/23/2013

Reasonable Accommodations: Direct Threat Exception 

A reasonable accommodation does not have to be granted to a person if granting that accommodation will: Create a direct threat to the health or safety of other tenants; or  Result in substantial physical damage to the property of others. 



CAUTION: don’t automatically conclude that a seemingly dangerous tenant cannot be accommodated. The housing provider must still engage in the interactive process or “DANCE” if that tenant requests an accommodation.

Reasonable Accommodations & Evictions 





Reasonable accommodations can be used to stop evictions. Even tenants who have engaged in allegedly threatening or dangerous behavior are entitled to second chances at their tenancies if the behavior was related to a disability and they have a plan in place to minimize or eliminate the behavior in the future. Eviction cases move FAST – if your client is being threatened with an eviction or has a pending case, try to refer him to legal services ASAP.

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5/23/2013

What if the requested accommodation is denied? 







Even after going through the interactive process, some landlords are unwilling to grant accommodation requests. If this happens, the tenant may have an affirmative claim of housing discrimination. He can file an administrative claim with HUD or California’s Department of Fair Employment & Housing. An attorney is not needed for this. Or, he can consult with an attorney about filing a lawsuit.

Putting it together… You operate an emergency shelter that accepts drop-in residents. A woman arrives and asks for a bed. She has a dog with her, and she says that it is specially trained to detect when she is going to have a seizure. Her disability is not apparent to you, and she doesn’t have a letter from her doctor because she was just evicted from her apartment and she was unable to retrieve all of her documentation before the sheriff changed the locks. What do you do?  What do you do if the same person shows up, but says that she has the dog to provide emotional support, rather than a specific service?

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5/23/2013

Putting it together…. Your transitional housing program requires all participants to attend daily group meetings. One of the residents complains about having to sit through the meetings, saying that her psychiatric medication makes it difficult for her to sit still for long periods. She is afraid that she will have to drop out of the program if attendance at the meetings is required and she is unable to participate. She asks if there is some other way that she can comply with the meeting requirement and stay in the program. What do you do?

Any Questions? If clients need MHAP services, please direct them to call MHAP’s intake line at 1-800-248-MHAP (6427)

12

MENTAL HEALTH ADVOCACY PROJECT Asistencia Legal Para La Salud Mental Law Foundation of Silicon Valley 152 North Third Street, 3rd Floor San Jose, California 95112 (408) 294-9730  FAX (408) 350-1158  TDD (408) 294-5667

RETURN OF PROPERTY If I moved out of my rental unit but left some personal property behind, can I get it back? Yes. After you move out of a rental unit, you have a limited time period to reclaim whatever property you left behind. During this time period, your landlord must take reasonable care to store this property. Does my former landlord need to notify me that I left some personal property behind after I moved out? Yes. Your landlord needs to inform you in writing of what items you left behind, the reasonable storage cost that will be charged to you before the property is returned, where the property may be claimed and the date by which you must claim the property. Unfortunately, many landlords do not send this notice, so be sure to call your former landlord as well as write the landlord a letter like the one on the back of this information sheet to ensure that you are given the opportunity to reclaim your belongings. Is there a time limit for reclaiming my property? Yes. If the landlord personally delivers a notice to you regarding the property you left behind, you have 15 days to reclaim your property. If the landlord mails the notice to you, you have 18 days to reclaim your property. Is there a cost for reclaiming my property? Yes. In order to reclaim your property within the 15 day period (if notice is personally served) or 18 day period (if notice is mailed), you need to pay the reasonable cost of storage to your landlord. What should I do if I left property behind after I moved out but I have not received a notice from my former landlord? You should call and write a letter to your former landlord explaining that you left a number of personal items behind and that you want to pick up these items. A sample demand letter is printed on the back of this information sheet. Be sure to keep a copy. If your landlord will not allow you to pick up your items, you may file an action in Small Claims Court. What penalties may be imposed against a landlord who wrongfully removes my property without giving me proper notice and opportunity to reclaim my belongings? You can bring a civil action against your former landlord. The landlord may be liable for your actual damages, a per day charge (not to exceed $100) for each day the landlord remains in violation, and reasonable attorneys fees. What happens if I don't pick up my property within the 18 days? If you failed to contact your landlord and pick up your property within the 15 or 18 day period, it still may be worthwhile to contact your landlord and see if you can pick up your property. However, after the 15 or 18 days have passed, the landlord has the right to sell the property at a public auction. The landlord needs to advertise this sale. The landlord may deduct the reasonable cost of storage from the proceeds of the sale. The rest of the sale proceeds should be paid to the county treasurer; you can claim the balance from the county treasurer within one year. However, if the property is valued below $300, then the landlord can dispose of the property as the landlord sees fit. This information sheet is intended to provide accurate, general information regarding legal rights. It does not constitute legal advice. Because laws and legal procedures are subject to frequent change and differing interpretations, the Mental Health Advocacy Project cannot ensure the information in this information sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation.

Updated 6/17/2002

(Tenant’s  Address) (Tenant’s  City,  State  and  Zip  Code) (Date) (Former  Landlord’s  Name) (Former  Landlord’  Address) (Former  Landlord’s  City,  State  and  Zip  Code) Dear  (Mr./Ms.  Former  Landlord’s Last Name): I was a tenant at your property, located at ______________________________________ (former address). I moved out of your property on __________________________ (date of move-out). However, I left some personal items behind, including: _______________________ ________________________________________________ (list personal items you left behind). I want to pick up these items of personal property as soon as possible. I am willing to pay the reasonable cost of storage for the ____ (number of days since you moved out) days that you have kept my belongings. According to California Civil Code sections 1980 through 1991, a landlord is required to provide a former tenant with notice if the tenant has left property behind after the tenant moved out. From the point when this notice is mailed to the tenant, the tenant has 18 days to reclaim the items of personal property. Cal. Civ. Code § 1983. During this time, the landlord must take reasonable care to store the tenant's property. Cal. Civ. Code § 1986. The tenant may be expected to pay the reasonable cost of storage at the time that the tenant retrieves his/her belongings. Cal. Civ. Code § 1983. Unfortunately, I have not received such notice from you. Nevertheless, I expect that you properly stored my items and that you will allow me to retrieve them shortly. Please contact me at _______________ (your phone number) to let me know when I can pick up my belongings.

Sincerely, (Your name)

Updated 6/17/2002

MENTAL HEALTH ADVOCACY PROJECT Asistencia Legal Para La Salud Mental

Law Foundation of Silicon Valley 152 North Third Street, 3rd Floor San Jose, California 95112 (408) 294-9730  FAX (408) 350-1158  TDD (408) 294-5667

RIGHT TO PRIVACY What is a right to privacy? When a tenant rents a residence, he or she gains a right to privacy. Renting a home means that the tenant has bought, at least for a time, the exclusive right to possess that home. The right to privacy limits  the  landlord’s  ability to enter the  tenant’s  home without special permission. Specifically, allowable reasons are needed for each entry by the landlord and specific notice guidelines must be followed. When can a landlord enter the residence? There are five circumstances during which a landlord can legally enter a tenant’s  residence: 1) When Reasonable Notice is Given In non-emergency situations, a landlord can only enter  a  residence  if  he  gives  “reasonable   notice,”  which  by  law  is  presumed  to  be  at  least 24 hours before the intended entry. The landlord must give a tenant a 48-hour notice to make a pre-vacancy inspection (before the tenant moves out). In most cases, the notice must be in writing. The notice should include the date, approximate time, and purpose of the entry. It must be delivered to the tenant personally, left with a responsible person in the home, or left on, near, or under the usual entry door. It can also be mailed within six days of the planned entry. Generally, a landlord can only enter  the  residence  within  “normal  business  hours.”  This   customarily means 9 a.m. to 5 p.m., Monday-Friday, although no exact hours are specified by law. 2) In Case of Emergency A landlord can enter the property without giving advance notice in order to respond to an emergency that threatens injury or property damage if not corrected immediately. A true emergency can include, for example, a fire or a serious gas or water leak. The landlord is entitled to have a key to the premises to enter for this reason. 3. Upon Permission of Tenant If the tenant agrees, without pressure or coercion, to allow the landlord to enter the residence, the landlord may do so without 24-hour notice.

4. To Make Repairs Updated 8/2/2005

A landlord or repairperson can legally enter the residence to make and assess the need for and cost of routine repairs or alteration to the premises. Entry for repairs can only be done during normal business hours and after reasonable notice has been given under #1 above. Note: If the landlord can establish a good reason under the circumstances to give less than 24hour notice, this may be allowable. Also, a landlord cannot use his right of inspection to harass a tenant. For example, repeated inspection, even with proper notice, might reach the level of harassment. 5. To Show the Property A landlord can enter the premises to show it to prospective tenants or prospective purchasers if the property is for sale. This must occur during normal business hours and after reasonable notice (described above). When involving the sale of the home, an oral notice may be allowable in certain circumstances. Note: Under no circumstances should a tenant allow a landlord to place a key-holding “lock  box”  on  the  door.  A  lock  box  allows  a  salesperson  to  enter  the  premises  without the required notice, and it should never be used. What should a tenant do when a landlord makes an improper entry? If a landlord or anyone working for the landlord violates the right to privacy by illegally entering a residence, the tenant should take action in the following manner: Step One: Talk to the landlord about concerns in a friendly but firm way. If an agreement is reached, give the landlord a written note to confirm. Step Two: If talking with the landlord does not work, submit a letter. The letter should notify  the  landlord  of  the  problem,  and  educate  the  landlord  about  the  tenant’s  rights   under the law. Step Three: If invasions of privacy continue despite the letter, document all occurrences and either see a lawyer or take the landlord to small claims court. Any instances of threats, intimidation, or physical attacks on the tenant should be reported to the police. Repeated  abuse  of  a  tenant’s  right  to  privacy  could  give  a  tenant  under  a  lease  a  legal  excuse  to   break it by moving out, without liability for further rent. If you have more questions about the right to privacy, or have problems with an invasion of this right by a landlord, you can contact the Mental Health Advocacy Project at (800) 248-MHAP or (408) 294-9730. This information sheet is intended to provide accurate, general information regarding legal rights. It does not constitute legal advice. Because laws and legal procedures are subject to frequent change and differing interpretations, the Mental Health Advocacy Project cannot ensure the information in this information sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation. Updated 8/2/2005

[Tenant’s  Name] [Tenant’s  Address] [Tenant’s  City,  State,  Zip  Code] [Date]

[Landlord’s  Name] [Landlord’s  Address] [Landlord’s  City,  State,  Zip  Code]

Dear  Mr./Mrs.  [Landlord’s  Last  Name], I am a tenant in your building located at _______________ in the city of _________. Recently, you made [an unlawful entry / unlawful entries] onto the premises. On the date(s) of ______, you failed to give me proper notice of your intent to enter my home and entered without my consent. This letter is to formally notify you that I value my privacy highly and insist that my legal rights to that privacy, as guaranteed to me under Section 1954 of the California Civil Code, be respected. Specifically,  I  would  like  24  hours’  written notice of your intent to enter my home, except in the case of a true emergency. I assume this correspondence will be sufficient to correct this matter. However, I reserve the right to take legal action to enforce my rights under the law if privacy invasions continue. If you want to talk about this, please call me at ___________ between the hours of 9 a.m. and 5 p.m. Cordially, [Client’s  Name]

Updated 8/2/2005

MENTAL HEALTH ADVOCACY PROJECT Asistencia Legal Para La Salud Mental

Law Foundation of Silicon Valley

152 North Third Street, 3rd Floor San Jose, California 95112 (800) 248-MHAP        •        Fax  (408)  350-1158      •        Telephone  (408)  294-9730        •        TDD  (408)  294-5667

SECURITY DEPOSITS What is a security deposit? A security deposit is money that you pay to your new landlord, usually when you first move into the property, which can be used by the landlord to cover any damage that you or your guests do to the property beyond ordinary wear and tear, any back rent that you owe, and cleaning costs when you move out. How much can a landlord charge for a security deposit? The total amount cannot exceed 2 months rent if the unit is unfurnished or 3 months rent if the unit is furnished. What can be deducted from my deposit once I move out? Your security deposit may be used to cover repairs to the unit for damages caused by you or your guests, past due rent, and cleaning the unit (if necessary) when you move out. However, if you request that your landlord conduct an initial inspection before you move out, your landlord must give you an itemized statement listing any repairs or cleaning fees that the landlord intends to deduct from your security deposit. After you move, your landlord can only charge you for cleaning or repairs listed on the itemized statement that you did not fix before leaving (unless the problems were caused after the inspection or were hidden from view by your possessions). Your landlord has no obligation to do the move-out inspection if your tenancy is being terminated because you received a 3-Day Notice to Pay Rent or Quit. Can deposits be non-refundable? No.    A  deposit  cannot  be  called  “non-refundable.”    A  lease  or  rental  agreement  that  includes this provision is not valid and cannot be enforced. When does the landlord have to return my deposit once I move out? Within 21 days after you move out, the landlord must either return your entire deposit or provide you with an itemized written statement explaining why all or part of the deposit is not being returned and return any remaining balance. Be sure to give your landlord your new address so your landlord will know where to send the deposit or the itemized statement after you move out.

Updated 6/2011

How can I avoid problems in getting my security deposit back? Before moving in: Be sure that the amount you paid toward a security deposit is written on your rental agreement and that you keep a copy of the agreement. Also, get a receipt of the deposit that you paid from your landlord to keep in your records. Additionally, inspect and note the condition of the unit, preferably with the landlord. List all items in writing and make sure the landlord signs this “checklist.”    If  the  landlord  is  not  available, inspect the unit with a friend and take photographs. Have  your  friend  sign  the  checklist  regarding  the  unit’s  condition.    Keep  the  checklist  and  photos  in   a safe place. Before moving out: Thoroughly clean the unit. Within a reasonable time after either you or your landlord serve notice of termination of tenancy, your landlord should notify you of your right to have an initial inspection before you move out. You should ask for this inspection. The inspection should take place within 2 weeks before you move out. At the end of the inspection, your landlord must give you an itemized statement of repairs and cleaning that still need to be done. You then can fix the problems and prevent deductions from being made from your security deposit for these items. Once you fix the problems, be sure to take pictures. What if the landlord does not return my deposit or I disagree with some of the deductions? If you do not receive your deposit within 21 days after moving out or you dispute the deductions that were made from your deposit, make a formal demand in writing to your former landlord. A sample demand letter is on the reverse side. The sample letter can be modified to include your demand for the entire deposit or any other amount. Keep a copy of the letter in your records. If you do not receive your deposit within 7 days from the date you sent the demand letter, you may sue  the  landlord  in  Small  Claims  Court  for  the  amount  of  the  deposit  owed.    See  MHAP’s  “Small   Claims  Court  Manual.”    Be  sure  to  bring the checklist, photos and the demand letter to court to present as part of your case. A landlord also may be fined up to twice the amount of the security deposit  for  his/her  “bad  faith”  in  keeping  your  deposit.    

This information sheet is intended to provide accurate, general information regarding legal rights. It does not constitute legal advice. Because laws and legal procedures are subject to frequent change and differing interpretations, the Mental Health Advocacy Project cannot ensure the information in this information sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation. Updated 6/2011

(Tenant’s  New  Address) (Tenant’s  City,  State  and  Zip  Code) (Date) (Landlord’s  Name) (Landlord’s  Address) (Landlord’s  City,  State  and  Zip  Code) Dear  (Mr./Ms.  Landlord’s  Last  Name): I am a former tenant who resided at your property, located at ______________ ___________________________________________ (address) from ______________ (move-in date) to ___________________ (move-out date). When I moved into your property in ______________ (move-in month), I paid you $_________ (amount of security deposit) as a security deposit. I have enclosed a copy of the receipt for this security deposit. Although I moved out of your property on _________________ (move-out date) and left the property in a clean condition, you have not returned my security deposit yet. California  law  requires  landlords  to  return  a  tenant’s  security  deposit,  with  a  detailed   inventory of any amounts withheld, within three weeks after a tenant leaves. Cal. Civ. Code § 1950.5(g). Improper retention of the security deposit by a landlord subjects that landlord to liability for statutory damages of twice the amount of the security deposit. Cal. Civ. Code § 1950.5(l). At this time, I request that you immediately return the $_____________ (amount of deposit) deposit still owed to me. You can send this payment to the address listed above. If I do not receive a response from you within seven days, I will be forced to take further legal action. Thank you for your attention to this matter. Sincerely, (Tenant’s  Name)

Updated 6/2011

(Tenant’s  New  Address) (Tenant’s  City,  State  and  Zip  Code) (Date) (Landlord’s  Name) (Landlord’s  Address) (Landlord’s  City,  State  and  Zip  Code) Dear  (Mr./Ms.  Landlord’s  Last  Name): I am a former tenant who resided at your property, located at ________________________________ ___________________________ (address) from ______________ (move-in date) to __________________ (move-out date). When I moved into your property in ______________ (move-in month), I paid you $_________ (amount of security deposit) as a security deposit. I have enclosed a copy of the receipt for this security deposit. I moved out of your property on _________________ (move-out date). Though I am entitled to receive most/all (pick one) of my security deposit back from you, you have wrongfully retained $______ of my security deposit. Effective January 1, 2003, California law requires a landlord to notify the tenant in writing of her option to request an initial inspection and to be present at this inspection before she moves out. Cal. Civ. Code § 1950.5(f). The goal of this inspection is to allow the tenant an opportunity to fix any identified problems in order to avoid deductions being taken from her security deposit. Based on the inspection, the landlord must give the tenant an itemized statement listing the repairs or cleaning that need to be done. Only if the tenant does not complete the repairs of cleaning before moving out can the landlord charge the tenant for these problems. Before I moved out, you never offered to complete an initial inspection with me, nor did you give me a written list of repairs and cleaning for which you would make deductions if I did not fix the problems before moving out. Because you did not follow the inspection procedures outlined in the law, you should not be allowed to keep any of my security deposit. California  law  also  requires  landlords  to  return  a  tenant’s  security  deposit,  with  a  detailed  inventory of any amounts withheld, within three weeks after a tenant leaves. Cal. Civ. Code § 1950.5(g). Improper retention of the security deposit by a landlord subjects that landlord to liability for statutory damages of twice the amount of the security deposit. Cal. Civ. Code § 1950.5(l). You withheld $_________ of my security deposit based on the following alleged problems: _______________________________________________ (list problems for which deductions were made). I agree that I should be charged for ___________________ (list any damage you know you did or cleaning that you did not complete); however, I should be refunded the remaining $_______________ (amount you want returned) of my security deposit immediately. At this time, I request that you immediately return $_____________ (amount you want returned) of my deposit to me. You can send this payment to the address listed above. If I do not receive a response from you within two weeks, I will be forced to take further legal action. Thank you for your attention to this matter. Sincerely, (Tenant’s  Name) Updated 6/2011

V.

EVICTION PROCESS

V. EVICTION PROCESS A.

Eviction Overview

Legal evictions in California involve a specific judicial process. The final stage of the process is physical eviction of the tenant by the Sheriff, but that point cannot be reached unless the landlord follows the procedures mandated by the Civil Code and Code of Civil Procedure. Only the Sheriff, pursuant  to  court  order,  can  legally  change  the  locks  on  the  tenant’s  apartment  and  force  the  tenant  to   move. The landlord cannot do this without the Sheriff. The process of eviction begins with service by the landlord on the tenant of a written three-day, thirty-day, or sixty-day notice to quit. (Tenants in subsidized or public housing sometimes receive a tenday notice or ninety-day notice.) Following the expiration of the notice to quit, the landlord must file a lawsuit to proceed with the eviction. This lawsuit is called an unlawful detainer action. An unlawful detainer action is a summary proceeding. This means that the case moves through the court very quickly. A tenant has five days to file a response with the court once served with the unlawful detainer action. As long as the tenant files a response, there can be a trial, where a judge or jury will decide whether the tenant should be evicted. If the tenant loses the trial, the Sheriff can evict the tenant. If there are inconsistencies or incorrect statements in the lawsuit filed by the landlord, there are certain motions that can be filed with the court. These types of motions can be filed and heard by a judge without an actual trial taking place. Also, before an actual trial takes place, the court will try to bring the two sides together for a settlement conference because trials are very expensive and timeconsuming for the court. At any point in the process described above, the landlord and tenant may agree to settle the case. If the tenant does not file a response with the court, a default judgment can be entered. This means that the landlord wins without a trial being held. Following a default judgment, the Sheriff can evict the tenant. B.

Notice to Quit

As mentioned above, the eviction process begins with the service of a notice to quit. Below is a discussion of each type of notice to quit, the exceptions to the notice to quit requirement, service requirements, and the manner in which the statutory notice period is computed. 1.

Types of Notices to Quit a.

Three-Day Notices to Quit

A three-day notice may be given when the landlord believes that the tenant has violated a specific provision of the rental agreement or lease. The most common three-day notice is one for nonpayment of rent. Nonpayment of Rent. A three-day notice to quit for nonpayment of rent must be in the alternative, meaning the notice must give the tenant the option of paying the rent due (rather than vacating) within three days. The notice to pay rent or quit must state the precise sum of rent then due. Pursuant  to  Code  of  Civil  Procedure  (“CCP”)  § 1161(2), the notice to pay rent or quit must also include:

1. The name, telephone number, and address of the person to whom the rent payment shall be made 2. If payment may be made personally, the usual days and hours that person will be available to receive the payment (provided, that if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner) 3. If payment may be made directly to a bank account, the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution (provided that the institution is located within five miles of the rental property) or, if an electronic funds transfer procedure has been previously established, a notice that payment may be made pursuant to that procedure. A notice to pay rent or quit should not ask for money other than rent (e.g. late fees, utility charges, charges for damages to the property). The notice to pay rent or quit may be served at any time within one year after the rent became due. Violations of Other Covenants. Three-day notices to quit for violations of other covenants under the rental agreement must be in the alternative if the breach is one that can be corrected. A three-day notice for nuisance or waste (destruction of the rental unit) does not have to be in the alternative. The tenant cannot waive the right to receive a three-day notice to quit. Civil Code § 791; Lamey v. Masciatra (1969) 273 Cal.App.2d 709. The landlord may withdraw the three-day notice within the three-day period and thereby keep the lease in effect. Downing v. Cutting Packing Co. (1920) 183 Cal. 91, 94. If the landlord also wishes to forfeit the rental agreement the notice must include a declaration of forfeiture. Neuhaus v. Norgard (1934) 140 Cal.App. 735, 737. The landlord must accept the rent from the tenant, if the full amount is tendered within the notice period. b.

Thirty-Day, Sixty-Day, and Ninety-Day Notices to Quit

Traditionally, a thirty-day notice to quit could be served by the landlord to terminate a monthto-month tenancy, under Civil Code § 1946. As of January 1, 2003, Civil Code § 1946.1 requires a sixtyday, rather than thirty-day, notice in most instances, unless the tenant (1) has resided in the unit for less than one year or (2) lives in a single-family residence or condominium and the owner has contracted to sell the dwelling to a natural person who intends in good faith to reside in the unit for at least a year and has established an escrow and the notice is given within 120 days of establishment of the escrow. Unless   the   unit   is   covered   by   the   East   Palo   Alto   Rent   Ordinance   or   another   jurisdiction’s   rent   control   ordinance, the notice need not state a reason for the eviction. Civil Code § 1954.535 requires a ninety-day notice for termination or nonrenewal of a contract with a government agency that provides for a rental subsidy. For evictions under the Ellis Act (where the landlord is removing all of the units in the building from the rental market), the landlord must give at least 120-days notice. (Government Code § 7060, East Palo Alto Municipal Code Chapter 14.08, et. seq.) If a tenant originally resided under a lease for a fixed period, the tenancy converts to a monthto-month tenancy by operation of law at the end of the term if the landlord continues to accept rent from the tenant. Civil Code § 1945. When a notice to quit is served, the tenancy does not terminate until the end of the notice period. Thus the landlord cannot properly file the unlawful detainer action

until the day after the notice period has expired. Bauer v. Neuzil (1944) 66 Cal.App.2d Supp. 1020, 1029. This is true for three-day notices as well. If a landlord accepts rent from a tenant for a period of time after the notice to quit has expired, the tenant can assert as a defense that the landlord has waived the notice to quit and renewed the tenancy. 2.

Exceptions to Notice to Quit Requirement

State law allows an unlawful detainer action to be filed without service of a notice to quit in the following cases: 1. 2. 3.

The tenant continues in possession after the expiration of a fixed term lease. Code of Civil Procedure § 1161(1). The tenant is a servant, employee, licensee or agent and the employment, agency or license has been lawfully terminated. Code of Civil Procedure § 1161(1). The tenant has given a written thirty-day notice of intention to terminate the rental agreement but has failed to vacate in the time specified by the notice. Code of Civil Procedure § 1161(5). 3.

Service Requirements

A three-day, thirty-day, sixty-day, or ninety-day notice may be served by any of the methods described in Code of Civil Procedure § 1162. Code of Civil Procedure § 1162 provides that a notice to quit may be served: 1. 2.

3.

By personal delivery to the tenant; or If the tenant is absent from her place of residence and usual place of business, by leaving a copy with a person of suitable age and discretion at either the residence or usual place of business of the tenant, and sending a copy through the mail addressed to the tenant at her place of residence; or If a place of residence and business cannot be ascertained, or a person of suitable age or discretion cannot be found at either place, by affixing the notice to a conspicuous place on the property and sending a copy to the tenant at the property via first-class U.S. Mail. A person of suitable age and discretion is anyone over the age of 18 years who is not obviously incompetent. A thirty-day or sixty-day notice to quit may also be served by certified or registered mail. Civil Code §§ 1946 and 1946.1. 4.

Calculating Statutory Notice Period

The notice period for a three-day, thirty-day, or sixty-day notice consists of calendar days. This means that every day on the calendar is counted. The first day of the notice period is the day after service of the notice. Civil Code § 10. If the last day of the notice falls on a weekend or holiday, the tenant has until the next business day to perform the act requested by the notice. Civil Code § 11. For example, if a three-day notice is served on Friday, the three days of the notice period consist of Saturday, Sunday, and Monday. If a three-day notice is served on Wednesday, the three days of the notice period consist of Thursday, Friday, and Saturday, but because the last day is a weekend day, the tenant has until Monday to pay or quit.

If a three-day notice is served by substituted service or post and mail, there is an argument that the notice period is extended by five days, based upon Code of Civil Procedure § 1013. Alternatively, we argue that if the notice is mailed, the tenant should get at least three days after the first day that the mailed copy could have been received. These arguments do not apply to thirty-day notices to quit. C.

Unlawful Detainer Action

Following the expiration of the notice to quit, the landlord must file a lawsuit to proceed with the eviction. This lawsuit is called an unlawful detainer action. Superior Court, Limited Jurisdiction (formerly known as Municipal Court) has jurisdiction over all unlawful detainer cases where the amount involved is less than $25,000.00. Superior Court, Unlimited Jurisdiction has jurisdiction over all unlawful detainer cases where the amount at issue is more than $25,000. The basic procedures are the same in both parts of the court. Unlimited Jurisdiction eviction cases are quite rare. Small Claims Court does not have jurisdiction in unlawful detainer cases. 1.

Summons and Complaint

The Judicial Council of California has developed a form summons and a form complaint for unlawful detainer actions. While the form summons must be used, use of the form complaint is optional.    The  summons  must  contain  the  names  of  the  parties,  the  name  and  address  of  the  plaintiff’s   attorney, and the case number. The summons does not need to be signed by the process server. The complaint must allege a prima facie case of unlawful detainer, be signed by the plaintiff or attorney, and be verified. If the Judicial Council form is not used, the complaint must be typewritten on pleading paper. California Rules of Court 201 and 501. 2.

Responding to the Summons and Complaint

A tenant has five days to file a response with the court once served with the unlawful detainer action. The time to respond to the five-day summons is calculated in a manner similar manner to calculating the time for a notice to quit. The five days include every day on the calendar, including weekends, but excluding court holidays. The five days begin the first day after service. If the fifth day falls on a weekend or holiday, the defendant has until the next business day to file a response with the court. An unlawful detainer defendant must respond before the five-day deadline passes by either filing a preliminary motion or an answer. Below are discussions of various preliminary motions and the answer. 3.

Preliminary Motions a.

Extensions of Time to Plead

Due to the short response time for unlawful detainer actions, the court will routinely grant an extension of time to plead. The court has authority to grant up to a ten-day extension, but generally grants only a two-day extension. The request for an extension must consist of a declaration of good cause (merely being a pro per litigant can be enough), a memorandum of points and authorities, and an order for the judge to sign. The extension is an ex parte application so a notice call to the opposing counsel must be made twenty-four hours before the tenant submits the order to the judge for

signature. The request for an extension requires a lot of running around for the tenant, and, if the tenant fails to complete each step in the process, the tenant risks default. b.

Motion to Quash Service of Summons

A summons and complaint for unlawful detainer may be served by any one of four methods. Please note that the requirements for service of an amended complaint, after the tenant has already been served with the summons and complaint, are not as strict. No summons need accompany the amended complaint, and it is okay to serve by first class mail or, arguably, by delivery to the premises. The following are the four methods for service of the summons and complaint: 1. 2.

3.

4.

Personal delivery to the defendant by anyone who is over the age of eighteen and not a party to the action. Code of Civil Procedure § 415.10. If personal service cannot be affected after reasonable diligence, then by leaving a copy of the summons and complaint with a person of suitable age and discretion at the defendant’s   residence   or  usual   place   of   business,   and   mailing   a   copy   of  the   summons   and complaint by first class mail to the residence or business. Service of summons is deemed complete ten days after the date of mailing. Code of Civil Procedure § 415.20. (We usually count this as if there had been personal service, to be safe, although technically the tenant should have fifteen days to respond to this substitute service.) After obtaining a court order showing good cause, the summons may be posted on the premises and mailed to the defendant by certified mail at the defendant’s  last   known   address. Service is deemed complete ten days after posting and mailing. Code of Civil Procedure § 415.45. (When this form of service is used, we generally have the tenant respond within fifteen days from the date of the order, to be safe.) Mailing a copy of the summons and complaint by first class mail along with an acknowledgment of receipt and a postage-paid return envelope. If the defendant voluntarily signs the acknowledgment and returns it, the defendant is deemed served the day the acknowledgment is signed. Code of Civil Procedure § 415.30. The defendant has twenty days from the date of mailing to return the acknowledgment, so this  form  of  service  is  not  often  used.    If  the  tenant  doesn’t  return  the  acknowledgment   form, they can be charged with the cost of service.

If the summons and complaint are not properly served, the defendant may object to the personal jurisdiction of the court by filing a motion to quash service of summons. Code of Civil Procedure § 418.10. The motion to quash must be the first responsive pleading filed or the objection to jurisdiction is waived. Some grounds for filing a motion to quash are: 1. 2. 3. 4.

5. 6.

No proper or personal service of summons. Improper substituted service, in that the person served was not of suitable age and discretion. Failure of the plaintiff to obtain a court order prior to service by posting and mailing. Failure to serve a copy of the complaint or failure to serve a complete copy of the complaint. (Frequently, exhibits referred to in the complaint are not attached to the copy served; occasionally, the second page of the complaint is left out.) Service of the complaint without a summons. Service of the summons and complaint by the named plaintiff.

No service. If there is no evidence of bad service, we advise filing a motion to quash. For instance, if a tenant comes in just because he/she received a Notice of Unlawful Detainer Filing from the court, but has not received the summons, complaint, or prejudgment claim of right to possession, then the tenant has the choice to wait for service or go to the court to get a copy of the complaint and respond   to   the   complaint   without   being   served.     The   tenant   could   contact   the   landlord   or   landlord’s   attorney to see if he/she claims that service has been completed and ideally follow up with a confirming letter, but, especially for pro per litigants, this can be an unreliable course of action. Timing of the hearing. A  motion  to  quash  is  made  by  “noticed  motion”.  The  motion  consists  of   a notice, a memorandum of points and authorities, and a declaration by the tenant regarding service. The hearing on the motion is scheduled for five days after filing (and can be set anywhere from three to five days from filing, so usually we choose five). (Note that this counts from the date of filing, not the date of mailing, unlike a demurrer or motion to strike. Also, if the fifth day falls on a holiday the time to respond is not extended to the following court day, so you have to set it for three to four days from the date of filing.) At the hearing, the court decides if service was proper. If the motion is granted, the defendant must be re-served. If the motion is denied, the defendant must file another responsive pleading within five days of the hearing. If the tenant is served again after the motion to quash is filed, the tenant must respond within five days of that service. It is important that tenants know to come back to the housing clinic to get additional papers to file by the deadline. Intake procedure if a motion to quash is possible. If, at intake, you notice that there is a basis for a motion to quash, make sure you note carefully all the related facts. If the complaint is missing a page, double check all of the copies the tenant received. If the possibility for a motion to quash exists, explain to the tenant that we can object to the manner of service if the tenant wants to do so. The advantages of doing this are that it makes the landlord do everything right and it gives the tenant additional time, typically as much as five days, but less if the tenant is re-served before the hearing. The disadvantage is that it means another filing deadline and extra trips to the housing clinic and the court, and it will not ultimately stop the eviction. Let the tenant know the options, let the tenant decide, and note the decision in the file. c.

Demurrer

A demurrer is a pretrial motion that challenges the sufficiency of the complaint. There are two types of demurrers: general demurrers and special demurrers. A general demurrer states that the plaintiff has failed to allege sufficient facts to state a cause of action (i.e., something essential to plaintiff’s  case  is  missing  from  the  complaint  or  the  complaint  reveals  a  complete  defense  to  the  action).     This can also be grounds for a motion to quash in an unlawful detainer action (because if the complaint is improper, the unlawful detainer summons is improper), but a demurrer takes longer so it is often the best choice. A special demurrer argues that the cause of action has been improperly pled (e.g., there is an inconsistency in the complaint). The bases for demurrer are listed in Code of Civil Procedure § 430.10. Grounds for a demurrer. The grounds for the demurrer must appear on the face of the complaint. This means that the defect in pleading must be obvious without reference to facts outside of the complaint. (This is also true for motions to strike, but not for motions to quash or for motions for summary judgment.) In addition to facts on the face of the complaint, a demurrer can also refer to judicially noticeable facts, like a court ruling, but we rarely do that.

Timing of the hearing. A demurrer is made by noticed motion. The motion consists of a notice and a memorandum of points and authorities. A hearing on the motion is set for five to seven calendar days from the date of service, pursuant to the Local Rules. Types of demurrers. The demurrers generally fall into two broad categories: (1) problems with the notice to quit where the notice has been made part of the complaint; and (2) problems with the complaint where it contains internal contradictions. We make an effort to screen for these issues during the intake so the client can make an informed decision regarding what type of pleading to file. General demurrers. The complaint must allege facts sufficient to state a cause of action. If it does not, the defendant may make a general demurrer to the complaint. Code of Civil Procedure § 430.10(e). The elements of a cause of action for unlawful detainer are: 1. 2. 3. 4.

The plaintiff has a possessory interest in the premises. The existence of a landlord-tenant relationship between plaintiff and defendant. Service of a proper notice to quit. Expiration of the notice to quit and non-compliance with the notice by the tenant.

Special demurrers. The bases for special demurrers are specified in Code of Civil Procedure § 430.10. By far the most common basis for a special demurrer is that the complaint is uncertain, ambiguous, and/or unintelligible. Other bases for special demurrers include: 1. 2. 3. 4.

The person who filed the pleading does not have the legal capacity to sue. There is another action pending between the same parties on the same cause of action. There is a defect or misjoinder of parties. In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, oral, or is implied by conduct.

Typical grounds for demurrer. The most common grounds for demurrer, and thus the ones that you should look for when reviewing a complaint are the following: 1. 2.

3. 4. 5.

6. 7. 8.

The notice to pay rent or quit asks for things other than rent (e.g. late fees, utility charges, money for damage to the apartment). The notice to pay rent or quit does not state the name, telephone number, or address of the person to whom the rent payment should be made, or the usual days and hours that person will be available to receive the payment. The  complaint  was  filed  before  the  expiration  of  the  notice  to  quit  (“premature  filing”).   Uncertainty because the notice to quit contradicts the complaint. Uncertainty because the complaint contains contradictory allegations regarding the service of, and the expiration of, the notice to quit. (Compare Paragraph 7 and Paragraph 8 on the form complaint.) Uncertainty because the complaint does not allege which defendant was served with the notice to quit. (See Paragraph 7a of the form complaint.) In   municipalities   with   “just   cause”   provisions,   like   East   Palo   Alto,   the   notice   does   not   include a just cause for eviction as required by the applicable rent ordinance. The complaint fails to state a cause of action because it does not allege one of the elements of a cause of action for unlawful detainer (listed above).

d.

Motions to Strike

A motion to strike is another pretrial motion used to challenge all or part of a complaint. The grounds for a motion to strike are that the complaint: (1) contains improper or irrelevant material; (2) seeks improper relief; or (3) was not drawn in conformity with the laws of the State, a court rule, or order of the court. Code of Civil Procedure § 436. Procedure and timing. Procedurally, a motion to strike is very much like a demurrer. A motion to strike may be filed as the first pleading or after a motion to quash but prior to the answer, just like a demurrer. If there are grounds for both a motion to strike and a demurrer, both must be filed at the same time. Also like a demurrer, the motion to strike consists of a notice of motion and a memorandum of points and authorities, and the hearing on the motion is set five to seven court days from the day the motion  is  mailed  to  the  plaintiff  (or  to  the  plaintiff’s  attorney).    In  addition,  the  basis  for  the  motion  to   strike must appear on the face of the complaint or they must be judicially noticeable, again, like a demurrer. Typical grounds for motions to strike. When looking for motions to strike, check the prayer for relief in the complaint because, in unlawful detainer cases, the allowable relief is very narrow. The most common grounds for motions to strike are: 1. 2.

3.

4.

The complaint seeks rent in cases other than nonpayment of rent, or seeks money other than rent and daily damages, or seeks rent and daily damages that overlap. The complaint is not properly verified. For example, if the attorney verified the complaint but did not state that the plaintiff is unavailable and outside of the county where  the  attorney’s  office  is  located.    Or  the  verification  is  not  dated  (since  it  must  be   under penalty of perjury and putting the date is a requirement of a declaration under penalty of perjury). Or the verification is signed before the cause of action was ripe (or, in other words, before the notice expired). In these cases you would move to strike the entire complaint as not drawn in conformity with the law. The complaint   seeks   attorney’s   fees   when   there   is   no   allegation   of   a   written   contract   that provides that the prevailing party may recover such fees. (See Paragraph 6, Paragraph 13, and Paragraph 17d of the form complaint.) The complaint seeks $600 in statutory damages without alleging specific facts showing malice   on   the   defendant’s   part.     (See   Paragraph   12   and   Paragraph   17g   of   the   form   complaint). 4.

The Answer

The answer is the pleading by which the tenant directly responds to the allegations made by the plaintiff in the complaint and raises affirmative defenses to the action. In many cases the answer is the first and only responsive pleading that a tenant will file. The answer needs to be verified by the tenant before it is filed at the court if the complaint is verified. The Judicial Council has developed a form answer for unlawful detainer actions. This is the form used in the RJC housing clinics.

a.

General Denials

When the amount demanded in the complaint does not exceed $1,000.00, or if the complaint is not  verified,  the  defendant  may  “generally  deny”  the  allegations  of  the  complaint.    This  means  that  we   check box 2a on the answer form. In determining whether or not you can do a general denial, look at the total amount of rent and damages in issue; this includes the rent demanded in the complaint and the daily damages up to the day the answer will be filed. (A good rule of thumb: if the notice to quit demands $900.00 or more, you probably cannot do a general denial. You do not have to consider attorney’s   fees   or   court   costs   in   determining   whether   the   complaint   demands   more   or   less   than   $1,000.00). b.

Specific Denials

If you cannot do a general denial, then you must specifically deny the allegations of the complaint. The allegations of the complaint are made in the form of numbered paragraphs and can be denied by reference to the paragraph number. Allegations may be denied as false or on lack of information and belief. As many of the allegations of the complaint as possible should be denied because whatever is not denied is deemed admitted for purposes of the lawsuit. At a minimum you should always try to deny allegations to the effect that: 1. 2. 3.

The plaintiff is entitled to immediate possession of the premises. A specific sum of rent is due, if the answer will also raise a defense of breach of the warranty of habitability. The plaintiff has complied with all terms of the rental agreement.

When doing specific denials, read the complaint carefully. You should not assume anything or fill in any blanks for the plaintiff. If the defendant from personal knowledge would not know a fact, it should be denied on the basis of lack of information or belief. c.

Affirmative Defenses

The form answer contains nine affirmative defenses. After reviewing the intake form, you should check the appropriate boxes and add specific facts as required. The most common defenses used are: i.

Breach of the Implied Warranty of Habitability

This defense is only available in cases involving a three-day notice to pay rent or quit. The implied warranty of habitability doctrine provides that, in every lease or rental agreement to which it applies, the landlord is deemed to warrant that the property is, and will be repaired and maintained in a condition that meets minimum standards of habitability. The warranty is recognized by Civil Code § 1941, et. seq. and Code of Civil Procedure § 1174.2, as well as an independent basis in common law. The right to assert the breach of the warranty of habitability as a defense was recognized by the California Supreme Court in Green v. Superior Court (1974) 10 Cal.3d 616. The case law of Green and related cases may provide broader rights in a given situation than the rights set forth in Civil Code § 1941. The common law elements of the breach of warranty of habitability defense are:

1. Tenant did not pay rent and the unit has serious repair problems; 2. Landlord or manager knew or should have known about the problems but did not fix them in a reasonable amount of time, or still has not fixed them; 3. Tenant’s  family  or  guests  did  not  cause  the  problems;  and 4. Tenant did not stop the landlord or manager from fixing the problems. Typically, a substantial failure of the landlord to comply with applicable building and housing code standards will be sufficient to establish a breach. If the tenant is raising a habitability defense, we often suggest that the tenant call the building inspectors. (If the tenant lives in an illegal unit, however, we do not recommend calling the inspector.) The inspectors will, once a complaint is filed, inspect the premises   and   cite   the   landlord   for   any   violations   of   the   building   code.     Unfortunately,   it’s   easy   for   landlords to avoid any penalties for such citations. If the inspector cites the landlord, the tenant should obtain a certified copy of the notice of violation from the inspector. Otherwise it is not admissible evidence. The statutory basis for breach of the warranty of habitability is set forth in Civil Code § 1941, et. seq. Civil Code § 1941.1 provides that a dwelling is un-tenantable if it substantially lacks effective weather protection, proper plumbing or gas facilities, proper hot water and sewerage facilities, proper lighting and wiring, clean premises, adequate garbage facilities, and floors, stairways and railings in good repair. Civil Code § 1942.4 provides that it will be rebuttably presumed that a landlord has breached the warranty of habitability if all these four conditions are satisfied: 1. 2. 3. 4.

The dwelling lacks any of the standards set forth in Civil Code § 1941.1; The local housing inspection agency has notified the landlord to abate or repair a substandard condition; The conditions continue to exist without good cause for at least 35 days after the notice was issued; and The condition was not the fault of the tenant.

Under this section a landlord may not demand or collect rent or issue a notice to quit if the above standards are met. Absent the presumption of Civil Code § 1941.1, the tenant can prove the breach of the warranty of habitability as long as the tenant can establish that she properly withheld rent, that substantial defects existed and that the landlord or his agent knew or should have known of the conditions and failed to make repairs immediately after he knew or should have known. Code of Civil Procedure § 1174.2 provides that where a defense of breach of the implied warranty of habitability is pled and proved, the trier of fact must determine the reasonable rental value of the premises considering the breach. The defendant must then pay that amount within five days or judgment for possession and rent will be entered for the plaintiff. If the payment is made, § 1174.2 also allows the court to retain jurisdiction over the case until repairs are made. ii.

Repair and Deduct

This defense is only available in cases involving a three-day notice to pay rent or quit. Civil Code § 1941 requires a landlord of residential property to put it in a habitable condition and to repair all subsequent dilapidation that makes it uninhabitable. If the landlord fails to do so, the tenant may withhold   up   to   one   month’s   rent   and   use   that   money   to   make   necessary   repairs.     The   tenant   can  

exercise this right no more than twice in a 12-month period. Civil Code § 1942. When the tenant properly uses this right to repair and deduct it will be a defense to an eviction based on a three-day notice to pay rent or quit. iii.

Attempt to Pay Rent Within the Notice Period

This defense is only available in cases involving a three-day notice to pay rent or quit. If the tenant tenders the full amount of the rent due during the period of the notice, and the landlord refuses to accept the rent, then the tenant can raise this as a defense to the unlawful detainer. A tender of rent that was refused prior to the service of the notice to pay rent or quit has no legal consequence. If the landlord holds a check sent by mail during the three-day period, then there is a presumption the landlord accepted it. EDC Assocs, Ltd. v. Guitierrez (1984) 153 Cal.App.3d 167. If the tender was made by check, then the tenant will need to show that there were sufficient funds in the account to cover the check. The timeliness of a tender of rent may depend upon the day of the week the notice to pay rent or quit was served. For example, where the last day of the notice period falls on a weekend or holiday, the tenant has until the next business day to pay the rent. Code of Civil Procedure § 12a. iv.

Waiver, Estoppel, Change of Notice to Quit

This defense is available in all cases. A landlord may waive his right to evict a tenant by accepting a rental payment after serving the notice of termination, by express statement, or by implication through acting in a way inconsistent with the claimed termination of the tenancy. Under the general   law   of  waiver,   a   landlord’s   acceptance   of   rent   with   knowledge   of   a   breach   creates an inference of a waiver of the breach, and the landlord may not thereafter evict for that breach. In order to reinstate the original term, the landlord must give notice that future breaches of the provision will not be tolerated. However, some rental agreements contain a provision that any waiver of a breach of a covenant will not act as a waiver of the term or of any future breaches. The court in Salton Community Service Dist. v. Southard (1967) 256 Cal.App.2d 526 held that the acceptance of rent with knowledge of the breach of the covenant constituted a waiver of the prior breach. Such waiver does not act to change the terms of the agreement where there is such a contract term. The landlord, in this case, is not required to give notice in order to terminate for any future breach of the same provision. Many standard rental agreements provide that certain obligations of the parties cannot be waived. This provision of the rental agreement may in a given circumstance be enforceable. Nevertheless, the tenant may be able to raise an estoppel argument by arguing that the landlord, by words or conduct (beyond the mere acceptance of rent) led the tenant to believe that future breaches of the provisions would not be enforced. The tenant would need to prove that the landlord expressly or impliedly led the tenant to believe that the strict terms of the rental agreement would not be enforced and that the tenant relied on the   landlord’s   conduct.     Estoppel   would   operate   to   suspend   the   strict   performance   of   the   obligation   of   the   tenant   who   detrimentally   relied   on   the   landlord’s   words   or   conduct. Finally, Civil Code § 1945 provides that where a tenant remains in possession and the landlord accepts rent, the parties are presumed to have renewed the tenancy on the same terms. This presumption may support a waiver defense or provide a separate defense. To raise the defense that the

plaintiff waived, changed or cancelled the notice to quit, we are generally looking for inconsistent conduct or statements by the plaintiff after service of the notice. v.

Retaliation

The defense is available in all cases (but weak in cases involving non-payment of rent). Where a landlord serves a notice to quit, files an unlawful detainer, or increases the rent in retaliation for the tenant complaining to the landlord or a governmental agency about the rental unit or for any other action a tenant has taken that is legally protected, the tenant may raise a defense based upon retaliation. A claim of retaliatory eviction shifts the burden on the landlord to demonstrate to the jury or trier of fact that the notice to terminate was not done in retaliation, but for other reasons. There are two bases for a defense of retaliation: the common law, and Civil Code § 1942.5. The common law defense is available in all cases. The Civil Code § 1942.5 defense is not available in cases involving a notice to pay rent or quit. Under common law, a tenant may assert a valid defense of retaliation   if,   on   balance,   the   public   policies   furthered   by   protecting   the   tenant   outweigh   the   state’s   interest in ensuring that unlawful detainer proceedings remain summary. See Barela v. Superior Court (1981) 30 Cal.App.3d 244. Civil Code § 1942.5 protects the tenant from retaliation for 180 days after an exercise of his rights. § 1942.5  also  allows  a  suit  for  damages  when  the  provision  is  breached.    Proof  of  the  tenant’s   exercise of rights under the law within the preceding six months prior to service of the notice creates a rebuttable presumption of retaliation. vi.

Discrimination

The defense is not available in cases involving non-payment of rent. A landlord cannot lawfully evict on the basis of race, color, gender, religion, national origin, age, occupation, marital status, sexual orientation, or because tenants are receiving public assistance, might be mentally or physically disabled, or have children. Also, a landlord cannot lawfully evict for arbitrary reasons that are not related to being a  good  tenant.    For  example,  the  landlord  cannot  evict  because  of  the  tenant’s  appearance,  their  beliefs,   or   even   their  taste   in  music   (unless   disturbing   others).     The   landlord’s   failure  to   provide   a   reasonable   accommodation  for  the  tenant’s disability also constitutes unlawful discrimination in violation of federal, state and local fair housing laws. See Civil Code § 51, et. seq. See also, ADA and FHA. vii.

Violation of the Rent Ordinance

This defense is available in all cases involving a rental unit subject to a municipal rent ordinance (e.g., the Rental Ordinance of the City of East Palo Alto or San Jose). This defense is applicable if: (1) the landlord lacks a just cause to evict; (2) serves a notice which does not comply with the requirements of the Rent Ordinance; is evicting in retaliation for the exercise of rights under the Rent Ordinance; or (3) seeks to evict for non-payment of rent which was raised in violation of local rent controls. If the rental unit is covered by a rent ordinance,  then  the  landlord  must  have  “good  cause”  under  the  ordinance  to   legally evict a tenant, even if the tenant does not have a lease. viii.

Domestic Violence

This defense is available where the lease violations for which the landlord seeks to evict the tenant are actually acts against the tenant or a member of the household which constitute domestic

violence, sexual assault, or stalking. Tenants who wish to assert this defense must present a temporary restraining order, protective order, or police report within the past six months naming the tenant or household member as the protected party or victim. ix.

Other Affirmative Defenses

Because unlawful detainer is a hybrid cause of action based upon both property and contract, all defenses normally available in a contract action apply. In addition, if the rental agreement between the parties provides additional protections beyond those required by statute, the terms of the contract must be followed. For example, the rental agreement may provide that, to be effective, notices must be served by registered mail or that the parties are entitled to a period of notice of termination longer than thirty days. All  equitable  defenses   such  as  “unclean  hands,”  “laches,”  “estoppel”  and  others  are  available.     Also, in every  contract  in  California,  the  “covenant  of  good  faith  and  fair  dealing”  is  implied  so  that  each   party to a rental agreement covenants not to act so as to prevent the other party from performing his duties under the contract. For example, a landlord cannot hide himself to avoid allowing a tenant to tender the rent and then seek to terminate the tenancy. d.

Security Deposits

The judicial council form answer previously provided a place for defendant to request credit for any security deposit. This provision has been omitted from the form presently in use. However, it is still a good idea to include a request for credit for the security deposit in Paragraph 4c of the Answer form, if only to provide a reminder to the parties to provide for this in any settlement discussions. e.

Prayer for Relief

The Judicial Council form answer automatically includes the request that the plaintiff take nothing requested in the complaint should the defendant prevail. This means that if the defendant prevails, he/she has won the right to resume her tenancy and not be evicted. This usually includes that right to pay the rent. For this reason, it is important to remind the tenants to save any rent money that is not being accepted by the landlord while the eviction case is pending. Where it is alleged that the landlord breached the implied warranty of habitability, then the tenant can ask the court to retain jurisdiction over the parties and enter an order requiring that repairs necessary to make the premises habitable are made and reduce the rent until the substandard conditions are abated. Where the defendant is represented by an attorney and there is a written rental agreement that provides for attorney fees, then the defendant should ask for attorney fees in the prayer. Most claims for damages that a tenant might make against a landlord cannot be included in an unlawful detainer trial. There is no right to counter-claim in an unlawful detainer action, because it is a summary proceeding designed to determine possession of real property only. Although there is a section   for   “other”   requests   in   the   prayer   for   relief,   there   really   is   nothing   else   that   a   defendant   can   request in an unlawful detainer case.

f.

Demand for Jury Trial

There is a right to trial by jury in unlawful detainer actions. This right may be waived by failure to make a timely jury demand, or by failure to post the jury fees. If a demand is not made by one of the parties,   the   court   will   assign   the   case   for   a   trial   by   a   judge   without   a   jury   (a   “bench   trial”). If the defendant wants to exercise the right to a jury trial, the jury demand should be made at the same time the answer is filed. We offer the option of doing a demand for jury trial to all of the clients we serve. If the defendant is doing fee waivers, we do an additional fee waiver for the jury fees and court reporter fees with the jury demand. When a trial by jury is demanded, the trial date will usually be approximately three weeks from the day the answer is filed. If a jury trial is not demanded, the trial will usually be approximately two weeks from the day the answer is filed. If a jury trial is demanded, the case is automatically assigned a mandatory settlement conference date as well as the jury trial date. The settlement conference is an informal conference where the parties must meet at the court and try to reach an agreement. The settlement conference is held the Thursday before the jury trial, and most of our clients are able to resolve their cases at this point. The date and time of the settlement conference (always at 1:30 p.m. on a Thursday) is mailed to the client by the court at the same time that the trial date is sent. The settlement conference date is on a separate page, so we advise our clients to read to look at BOTH PAGES when they receive their court dates. Make it clear to clients that it is imperative that they show up to both the settlement conference and trial date on time. Even if they are just a few minutes late, they can miss their case being called. If they are late to their settlement conference, they will lose their right to a jury. If they are late to their trial, they can lose the whole case. 5.

Default Judgments and Motions to Vacate Default

If for some reason the tenant does not respond to the summons and complaint within the five days,  a  “default”  can  be  entered  against  the  tenant.    This  is  not  automatic.    The  landlord  has  to  request   an entry of default after the five day period has elapsed and before the tenant has filed a response. If a tenant comes in and it appears that the five day period to respond has already elapsed, the first thing to do  is  call  the  court  clerk’s  office,  and  ask  the  clerk  if  there  has  been  a  default  entered.    If  default  has  not   been entered, then there still may be time to file a response. If no default has been entered, let the supervising attorney know right away so an answer can be completed quickly. If there has been a default entered, then the client has lost the case without having a trial. The next thing that the tenant can  expect,  if  it  hasn’t  happened  already,  is  that  a  Sheriff’s  eviction  notice  will   be issued. We can prepare the request for a stay of eviction, and in some appropriate cases assist with a motion to vacate the default judgment. The three main bases to vacate a default judgment are: 1. 2. 3.

Judgment is void if tenant not properly served; Mistake, surprise, excusable neglect (for example, the defendant does not speak English and did not understand the summons); No actual notice, although valid service (for example, post and mail or substitute service never received by the defendant).

6.

Claims of Right to Possession

A claim of right to possession can be filed by someone who has not been named in the unlawful detainer action as a defendant if, prior to the start of the lawsuit, that person was at least 18 and was living at the premises and that person has paid rent to someone or has some other claim to being a tenant. If the plaintiff serves a prejudgment claim of right to possession form with the summons, the claimant must file the claim within 10 days of the service of the summons. The claimant must then file a response to the complaint within five days of filing the claim form. If the plaintiff did not serve a prejudgment claim form, then the claimant may be able to file a post-judgment claim form when the Sheriff’s   eviction   notice   is   issued.     The   claimant   cannot   file   the   claim   form   if   named   in   the   writ   of   execution  attached  to  the  Sheriff’s  notice.    No  matter  when  the  claim  form  is  filed,  the  claimant must either pay the initial court filing fee or file fee waiver forms. When doing an intake, you should ask if any other adults are living at the premises and if they want to respond to the lawsuit. If they do, then determine if a prejudgment claim form has been served.    If  not,  the  claimant  should  be  able  to  wait  for  the  Sheriff’s  eviction  notice.    If  the  claim  form  was   served with the summons, the claimant must respond or will waive the right to appear in the lawsuit. Usually, as long as a defendant is responding, we do not recommend that someone else file a prejudgment claim form. 7.

Relief From Forfeiture Motions

This motion can be used to try to keep a tenant in possession despite an unlawful detainer judgment that includes forfeiture of the rental agreement. (This is generally only available in cases involving three-day notices.) The tenant must show that there would be a special hardship if the tenant were evicted (e.g., a tenant is disabled and eviction would pose an undue burden). The tenant must also make full compensation to the plaintiff by paying all of the money awarded by the judgment. A pro per tenant may make such a request orally or by ex parte application. 8.

Stays of Eviction

Once  the  Sheriff’s  eviction  notice  is  issued,  the  defendant may request a stay of eviction if the defendant can post rent with the court to cover the period of the stay, and the judgment in the case was entered less than thirty days ago. We will assist the tenant by preparing stay forms if they have the rent and judgment was entered as described above. If the judgment is older, the tenant should request consent for the stay when making the notice call (discussed below). Stays often will not be granted if the judgment was entered pursuant to a settlement. The stay must be requested prior to actual eviction of the defendant. If a client needs a stay, the application must be filed with the court at 2:00 p.m. on a weekday prior to the date set for eviction. No later than 10:00 a.m. on the last court day before submitting the stay application, the tenant must make a notice call to the plaintiff (or attorney, if there is one) to give notice of when and where the application will be heard. (If notice is given later, the papers must explain why the notice was given late and why that late notice is reasonable. We will typically also have the tenant  ask  plaintiff’s  counsel  for  consent  to  have  the  stay  heard.)    Stay  applications  are  heard  each  day   between  2:00  and  3:30  p.m.  in  the  Presiding  Judge’s  ex parte calendar. Be sure to have the tenant make the notice call at the clinic, and note down the time. Also explain to the tenant the amount of rent they

will  need  for  the  stay  and  that  the  rent  must  be  paid  to  the  Court  by  cash  or  cashier’s  check,  and  note   that amount on the instruction sheet for the client. If there is a default judgment against our client, the request for stay is usually granted as long as there is 24 hour notice and the tenant is able to pay the rent for the stay period. The stay may be less likely to be granted if there was not a default judgment or if there was a settlement that has not been fulfilled by the tenant, or if the tenant has agreed not to seek a stay. D.

Settlement Process

The jury may be waived at any point before the jury panel is sworn in on the day of trial. If the tenant wants to waive the jury (although usually not recommended), the tenant should not do so until the day of trial because the tenant cannot later change this decision and have the jury reinstated. All defendants who responded must appear at the settlement conference, or the judge may strike the jury demand of anyone not attending. The basic issue in all types of settlements is who gets possession of the rental unit. Usually, the party who gets possession pays. If the tenant stays, he pays rent. If the landlord gets possession, he pays the tenant through cash and/or waiver of rent. Other issues are the form of agreement, the disposition of the deposits, the costs of the suit, whether a release will be given, and attorney fees. 1.

Types of Settlements in Cases for Non-Payment of Rent

Waiver of Rent and Move-out. If the tenant is willing to move, the landlord will often agree to waive all the rent, costs and attorney fees if the tenant can move within two to four weeks. If the tenant has strong habitability defenses, they might negotiate for a longer time period or a cash payment to compensate the tenant for the breach. Payment Plan. If the tenant wants to stay, but cannot pay all of the back rent immediately, a payment plan is a possibility. Be sure the tenant can afford any payments being proposed. Usually the landlord will not dismiss the case until all payments are completed, so an optimal payment plan should be of as short duration as possible, while  still  being  reasonably  within  the  tenant’s  budget. 2.

Types of Settlement in Cases for Tenant Malfeasance

In cases involving nuisance, breach of covenants, or subletting, you can often settle with the tenant remaining in possession, provided the tenant complies with certain conditions. Make sure you narrowly tailor these conditions and make it clear what constitutes a breach. Try to include some type of warning before a breach would permit a landlord to seek ex parte entry of judgment. It is important that both parties understand the conditions and that your client will be able to comply. If not, the agreement  will  result  in  a  judgment  against  your  client  and  the  client’s  eviction. Another possible settlement is for the defendant to agree to move for a sum of money. Keep in mind that time equals money. The amount of time and money you will be able to negotiate for your client will depend on the facts of the case. The total amount of money should include a waiver of all back rent. The amount of time can range from two weeks to many months and the payment varies depending on the facts of your case.

3.

“No  Cause”  Evictions

In cases involving neutral terminations of month-to-month tenancies (based on 60-day or 90day notices), tenants rarely obtain a settlement to remain in possession. For a tenant to remain in possession, she usually must prevail at trial. If there is strong evidence that the landlord is acting in bad faith, these cases can settle for significant additional time and/or payment for the tenant. 4.

Form of the Settlement

Most landlord lawyers will insist that the settlement be in the form of a stipulation for entry of judgment. This will allow the plaintiff to have judgment for possession and damages entered if the defendant fails to comply with the terms of the agreement. That is why it is so important for your client to be realistic about any payments, time deadlines or behavior changes she promises to make. You can protect your client from a sudden eviction for violations of the agreement in a number of ways. First, build in grace periods for any payments required of your client. Second, insist that judgment can only be entered after 48-72 hour notice to you, followed by an application to the court supported by declaration under penalty of perjury. Finally, if at all possible, enter into a settlement agreement which does not provide the landlord with immediate judgment. If   the   plaintiff’s   attorney   insists   on   an   immediate   entry   of   judgment,   which   is   conditionally   stayed by the terms of the agreement, make sure that the judgment will be vacated and a dismissal filed once your client has fulfilled her obligations under the agreement. This will help your client avoid the long term stigma of an unlawful detainer judgment. Tenants   should   generally  avoid  agreements   to   pay   the   plaintiff’s   costs   or   attorney   fees   unless   they are remaining in possession and did not have strong defenses.

1 2 3 4 5

DEFENDANT IN PRO PER

6 7

SANTA CLARA COUNTY SUPERIOR COURT

8

CIVIL DIVISION

9 10 11 12 13 14 15 16 17 18 19 20 21

DOWNTOWN FACILITY ) Case No.: ___________________________ ) ) DEFENDANT ) ) ____________________________________’s ) EX PARTE APPLICATION FOR STAY OF _______________________________, ) EXECUTION OF WRIT OF POSSESSION; ) MEMORANDUM OF POINTS & ) AUTHORITIES IN SUPPORT THEREOF; Plaintiff ) DECLARATION OF ) v. ) ___________________________________; ) _______________________________, ) Ex Parte Hearing Date: __________________ ) Time: 8:15 a.m. Defendant. ) Dept: TBD ) ) Date of Judgment: ____________________ ) ) Date of Eviction: _____________________

22 23

APPLICATION FOR STAY OF EXECUTION OF WRIT OF POSSESSION

24 25 26

To the Court and to Plaintiff ____________________________________________ and attorney of record:

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1 Defendant’s  Ex  Parte  Application  for  Stay  of  Execution

1 2

1.

Defendant

makes this

application under Code of Civil Procedure § 918 for an order from this Court, directed to the

3

sheriff’s  office  of  Santa  Clara  County,  to  Plaintiff,  and  to  any  other  persons  acting  on  behalf  of  

4

or in concert with Plaintiff, staying execution of judgment entered in this action on the grounds

5 6

that

would suffer hardship if the

judgment were to be executed on

.

7 8 9

2.

Defendant

the judgment be stayed until

10

judgment).

11

3.

12

asks that execution of (

days from date of

This application is based on the Declaration of

, all

pleadings and records on file in the action; matters of which this Court takes judicial notice; oral

13 14

testimony which may be presented; and the accompanying memorandum of points and

15

authorities.

16

Dated:

Respectfully submitted,

17 18 19 20

Defendant in Pro Per

21

MEMORANDUM OF POINTS & AUTHORITIES

22 23 24

THE COURT MAY STAY THE EXECUTION OF JUDGMENT WITHOUT CONSENT OF THE ADVERSE PARTY

25

California Code of Civil Procedure (C.C.P.) § 918(a) provides that the Court may stay the

26 27

I.

execution of any judgment or order. The Court has discretionary power to govern its proceedings, and it may upon good cause stay the execution of judgment. See Cal. Cotton

28

2 Defendant’s  Ex  Parte  Application  for  Stay  of  Execution

1 2

Credit Corp. v. Superior Court (1932) 127 Cal App. 472, 475. In situations where justice requires a stay of execution, the Court may grant the stay without the consent of the adverse

3

party for a period up to forty days after the date of judgment. See C.C.P. §918(b).

4

II.

5 6

DEFENDANT WILL SUFFER EXTREME HARDSHIP WITHOUT A STAY. A stay of execution of judgment shall be granted when the Court finds the moving party

will suffer extreme hardship in the absence of a stay and that the nonmoving party will not be

7 8

irreparably injured by its issuance. C.C.P. § 1176(a). As set forth below in the declaration of

9 10

,

defendant will suffer extreme hardship if evicted on

.

11 12

III.

PLAINTIFFS WILL NOT BE INJURED BY ISSUANCE OF THE STAY. CCP § 1176(a) provides for issuance of a stay when, in addition to extreme hardship to

13 14 15

the moving party, the nonmoving party will not be irreparably injured by its issuance. In this case, defendant

is prepared to pay the daily rental

16

value at the rate determined by the court for the duration of the stay. Thus, Plaintiff will suffer

17

no monetary loss as a result of the stay.

18

Based on the facts and good cause for its exercise in this matter, defendant

19

requests that a stay of execution be granted

20 21 22

through

.

Dated:

23 24 25

Defendant in Pro Per

26 27 28

3 Defendant’s  Ex  Parte  Application  for  Stay  of  Execution

DECLARATION OF:

1

I,

2 3 4 5

, hereby declare:

1.

I am the defendant in the above-reference action.

2.

I currently reside at

3.

On ________________________________ at ________________________, I called

.

6

______________________________________________________________________________

7

at the telephone number _______________________________ and gave notice of my intention

8

to seek a stay of execution on __________________________ at 8:15 AM at the Downtown

9

Superior Court, 191 N. First Street in San Jose.

10

[Check One]

11

[ ] When I spoke to ___________________________________, I was told that my Stay

12

would not be opposed.

13

[ ] When I spoke to ___________________________________, I was told that my Stay

14

would be opposed.

15

[ ] I left a voicemail message.

16

[ ] Other: _______________________________________________________________.

17 18

4.

I received a Notice to Vacate from the sheriff that expires on

19

at 12:01 AM. If I have to move out of my rental housing on that day, I will suffer extreme

20

hardship.

21

5.

22

hardship if I am evicted at 12:01 AM on

23

______________________________________________________________________________

24 25

These are the circumstances that I experience that would cause me to suffer extreme :

______________________________________________________________________________ ______________________________________________________________________________

Defendant’s  Ex  Parte  Application  for  Stay  of  Execution

4

1 2

______________________________________________________________________________ ______________________________________________________________________________

3

______________________________________________________________________________

4

______________________________________________________________________________

5

______________________________________________________________________________

6

______________________________________________________________________________

7

______________________________________________________________________________

8

______________________________________________________________________________

9 10 11

______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________

12 13 14 15

______________________________________________________________________________ 6.

The daily rental value for my housing as  stated  in  Plaintiff’s  Complaint  and  on  the  

Judgment taken against me is $

.

16

7.

17

4:00pm today for a stay of execution of the writ of possession for

18

_____________________________________________.

19 20 21

I am prepared to tender the amount of $

to the Court by days, until

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed in California on

.

22 23

____________________________________

24

Defendant in Pro Per 25

Defendant’s  Ex  Parte  Application  for  Stay  of  Execution

5

,

ANSWER TO COMPLAINT FILING INSTRUCTIONS 1. Take all of the papers we gave you to file at court. Go to the San Mateo County Courthouse at 400 County Center in Redwood City. The clerk’s office for filing is on the first floor. Go to the desk on the far right of the filing room, where the sign says “Landlord/Tenant (Unlawful Detainer), and give the clerk all the papers. The clerk will stamp them and return copies to you. Make sure your copies are stamped, including your Demand for Jury Trial. Check your papers before you leave court to make sure they are stamped and that no originals have been returned to you. Be sure to save all of your file-stamped copies. 2. Watch your mail for notice of your court dates. It is up to the landlord to request a trial date by filing a form called a Request for Trial. You may receive a copy of this form from the landlord or attorney. Then you should receive from the court a notice that states the dates and times of your pre-trial settlement conference and trial. 3. Check with the court clerk. If you have not received any notice of your court dates within 10 days of filing, or by ________________call the court clerk at 650-363-4711. Ask for the unlawful detainer clerk and give the clerk your case number, which is CLJ . If you filed an application for waiver of the court fees with your Answer, you should also ask the clerk if that application was granted. If your application to waive the filing fee is denied, you MUST return to court to pay the filing fee within 10 days of the denial, or your Answer will have no effect and you could lose your case with no court date. 5. You may also receive additional papers from the landlord or landlord's lawyer. Although this is rare, sometimes a landlord with serve requests for information (known as discovery), pre-trial motions, or even a new version of the complaint. If you do receive these types of papers, contact our office immediately. You may need to respond to the new papers, and in some instances failure to do so could mean you lose your case.

SETTLEMENT CONFERENCE 6. If you have filed a written request for a mandatory settlement conference, the clerk will schedule this conference to take place at the Redwood City courthouse, usually at 1:30 p.m. on the Thursday before your trial date. The settlement conference is an informal meeting between you and the landlord or his/her attorney, where you can decide whether to resolve your case by agreement. YOU MUST ATTEND THE SETTLEMENT CONFERENCE. The settlement conference provides the best opportunity to settle your case. You should bring any evidence that you think will help increase your bargaining power. If you wish, you may make an effort to settle your case prior to the settlement conference. Contact your landlord or The Natalie Lanam Justice Center @ The Sobrato Center for Nonprofits – Redwood Shores 330  Twin  Dolphin  Drive,#123  •  Redwood  City, CA 94065 •  650.558.0915 •  Housing Intake Line 650-517-8911

your landlord’s attorney if you have a specific settlement offer to make before you go to court. Usually the first thing that needs to be resolved in a settlement negotiation is whether the tenant is staying in the property and resuming the tenancy, or moving out. As a result, most settlements are either “pay and stay” or “move out” deals, as described below. Pay and Stay: If are going to remain in your home, and your case is about non-payment of rent, you will need to agree on how much is actually owed and how much you are willing to pay. If you are agreeing to a payment plan over time, be sure that the amount you are agreeing to pay is realistic, without extending the payment period over an excessively long time. In most pay and stay agreements, failure to make a single payment on time will be grounds for the landlord to get an immediate eviction order, so do not commit to something that you will not be able to do. Even if the case is not related to the rent, usually some rent has accrued while the case is pending, so you should be saving all your rent. In non-rent cases, you will need to resolve landlord’s other complaints as well (e.g., if the landlord brought the eviction for having an unauthorized pet, you will either need to get permission for the pet or satisfy the landlord that you will remove the pet). Move Out: If you are going to give up your tenancy and agree to move out, then the main question to resolve is WHEN. Whatever date you choose, try to give yourself some extra time in case of an emergency. Generally the sooner you move, the more the landlord should give you in exchange. The most common form of compensation is the landlord waiving the rent, meaning that you will not owe future or back rent. Or the landlord might agree to give extra time (several weeks or months) before you have to move, in exchange for agreeing to end your occupancy by a particular date. Remember that if you were to go to trial and lose, it would take approximately eight to ten days for the County Sheriff to actually evict you. It costs the landlord money to have the trial and send the Sheriff, so making an agreement spares the landlord this expense of time and money, and eliminates the uncertainty of a trial outcome.

TRIAL 7. The trial date is usually on a Monday at 9:00 a.m.. If you do not settle your case at the settlement conference, contact our office as soon as possible so we can help you prepare to represent yourself at trial. You should begin to think now about what evidence, if any, you will want to use at trial. Evidence includes things like payment receipts, letters from you or your landlord, photographs, witnesses who will testify for you, or reports from police, health, or building inspectors. Do not be late to your trial. You will lose the trial if you are late. 8. If you lose your trial, the Sheriff will post a "Notice To Vacate" at your unit a few days after the trial. The notice will state a date for the following week when the Sheriff plans to return and remove you from the property. Once you get the Sheriff's notice, you can file an application asking the court to let you stay longer. You must have the money and give it to the court to pay rent for the extension. If you need to file a stay request, contact our office immediately when you receive notice from the sheriff so we can assist you with timely filing the appropriate papers. Last revised 10/1/12

JUDGMENT INFORMATION SHEET 1. The court shows that a judgment has been entered against you. This means that the court considers your eviction case closed, whether you contested the matter or not. If you did not file any papers at the court, the judgment was entered by default, which simply means the landlord won because you did not object to the eviction. Once a judgment is entered, the landlord can file a request with the Sheriff to have you scheduled for eviction. 2. The Sheriff will then set you for eviction and post a notice on your door telling you what date you will be evicted. Evictions are normally set for Tuesday, Wednesdays, or Thursdays, usually about a week and a half to two weeks after the judgment is entered. 3. Once you get the Sheriff's notice, you can file an “ex parte application” asking the court to let you stay another week, if you can pay rent for the week to the court in cash or cashier’s check at the time of your application. We can help prepare these papers for you once you receive the Sheriff's notice. The court hears stay requests each day at 2:00 p.m., no later than the day before the eviction, and requires that you notify the landlord’s attorney of your intent to apply for a stay of eviction no later than 10 a.m. the day before you go to Court. If you want us to prepare the papers, you need to bring the Sheriff's notice to a Legal Aid clinic as soon as you receive it. You may also choose to prepare this paper yourself using our SelfHelp Stay packet, which is available at the Legal Aid office and at the Redwood City courthouse (400 County Center). 4. You can still try to make an agreement with your landlord. The landlord has the power to stop your eviction if you are able to make an agreement. You can contact the landlord or landlord’s attorney and make a proposal to pay for some additional time, or to resolve the entire judgment in order to stay in your home. Although the landlord is not required to make any agreement with you at this point, sometimes this is a successful approach. 5. You could also ask the court to re-open your case, by filing a motion to vacate the default judgment. We do not prepare these motions, because they are more complicated and time-consuming and are not often granted. If you want to file a motion to vacate the default judgment, you can use the self-help forms provided by Bay Area Legal Aid, or have to hire a private attorney to do the motion for you.

The Natalie Lanam Justice Center 521 East 5

th

Avenue    •    San  Mateo,  CA  94402  •    650.558.0915    •    Fax  650.558.0673    •     Toll-free 800.381.8898

6. In a very few cases, a tenant can make a motion for relief from forfeiture. This means that even if the tenant loses in court, the tenant can ask the judge to decide that the tenant should not lose the right to keep their housing, based upon Section 1179 of the California Code of Civil Procedure. If you are representing yourself, you can make this request to the court without written papers (called an “oral motion for relief from forfeiture”), if the landlord's attorney is present in court with you or if you have given notice to the attorney of your request no later than 10 a.m. the previous day. In order to make this motion, you need to be able to pay the full amount of the rent that you owe immediately, and tell the judge some reason that it would be a hardship to you to be evicted. For example, tell the judge if you or someone in your household is elderly or disabled or a minor or pregnant or if you have lived there a long time. 7. Someone else who lives at the premises may also be able to stop or delay the eviction. If they are named on the court papers, they can also do the motions described above. If they are not named in the court papers, they may be able to file a "Post-Judgment Claim to Right to Possession Form." That form may be included with the Sheriff's notice when it is posted on your door. Generally they cannot do that form (and it will not be included with the sheriff's notice) if the landlord sent out a claim form at the beginning of the case with the summons and complaint (and landlords usually, but not always, include the claim form with the summons and complaint).

MOTION INSTRUCTIONS 1. On ___________________, take the original and one copy of the motion we have prepared to 400 County Center, Redwood City. Go to the "Unlawful Detainer" line in the Civil Filing room on the first floor. Have both the original and copy file-stamped. The Clerk will keep the original and then give the copy back to you. If the clerk indicates that the hearing date you are requesting is unavailable for any reason, then ask the clerk to set the hearing for the next available date and change the date on the front page of your motion to reflect the correct date. If the date is changed on the court’s  copy,  you  should  also  change it on your own copies of the motion. At the same time you file your motion, you should submit your Application for the Waiver of Court Fees, so that you will not be charged a $225 filing fee. 2. On the same day that you file your motion, you need to deliver a copy to the Legal Aid office so that the motion can be served to the Plaintiff by the Legal Aid staff. You may either fax a copy of your filed motion to (650)517-8973, or deliver a copy to 330 Twin Dolphin Drive, Suite 123, Redwood City. 3. On the last court day before your hearing, the judge will post a tentative ruling to advise the parties how he plans to rule on your motion. You can check the tentative ruling after 3:00 p.m. on the court website www.sanmateocourt.org, or call (650)599-3481 and listen  for  your  case  number.    If  the  tentative  ruling  is  to  “grant”  your  motion,  the  judge  is   planning to rule for you. If it says "denied," the judge is planning to rule against you, and will order you to file an Answer within a certain number of days. You generally do not have to attend the hearing. If you choose not to attend, you are “submitting  to  the  tentative  ruling,”  which  means  you  are  fine  with  whatever  the  judge  said   in the tentative ruling. If you want to have a hearing to contest the tentative (e.g., if the judge wants to deny your motion and you think you could say something to persuade him to  change  his  mind),  the  court’s  rules  state  that  you  must  call  the  Civil  Law  and  Motion   Response line at (650)363-1882,  by  4  p.m.,  and  you  also  have  to  call  the  landlord’s  lawyer   (or the landlord if s/he does not have a lawyer) and say you are requesting a hearing. If the tentative ruling is for you, the landlord may decide to request a hearing. If that happens, the landlord or lawyer should call you to let you know. You are responsible for knowing the outcome of the motion whether you attend the hearing or not. If you do not attend, you should call the Court clerk at (650)363-4711 by the next morning and ask the clerk to tell you what ruling is entered in the register of actions. 4. If your motion is DENIED, then you will need to file an Answer within the time specified by the judge (usually five calendar days). Call Legal Aid at (650)517-8911 or return to one of our clinics so we can assist you with an Answer. If your motion is GRANTED, as you have requested, then your unlawful detainer case is over. However, the landlord may serve you with a new notice to start the eviction proceeding over again. If you receive more eviction papers, call Legal Aid immediately so that you do not miss any new deadlines.

The  Natalie  Lanam  Justice  Center  •  Sobrato  Center  for  Nonprofits  – Redwood Shores 330  Twin  Dolphin  Drive,  Suite  123    •    Redwood  City,  CA  94065  • 650.517.8973    •    Toll-free 800.381.8898

650.558.0915    •    Fax  

INSTRUCTIONS FOR EX PARTE STAY ORDER 1. On ____________________ before 2 p.m., take your papers to the Courthouse at 400 County Center, Redwood City. Go to  the  Civil  Clerk’s  office  on  the first floor and tell the clerk at the Unlawful Detainer desk that you have a stay application. The clerk will check you papers and direct you to the courtroom where you can submit the application. Once in the courtroom, hand your papers to the clerk or bailiff and tell them  you  have  an  “ex  parte  stay  order”  for  the  judge  to  sign.     If  the  judge  signs  your  order  → 2. Before 3:30 p.m. on _____________________, take the stay papers and fee waiver application back to  the  clerk’s  office  on   the 1st floor. Have the clerk file-stamp your copies, and ask the clerk to make a certified copy of the order. You will also need  to  pay  $________  to  the  clerk  (in  cash  or  a  cashier’s   check from a bank) at that time, and you may also be asked to pay a $225 filing fee or $40 deposit fee if it has not been waived by a fee waiver. 3. Before 5:00 p.m., take the certified copy of the order to the Sheriff’s  Civil  Division  office  on  the  3rd  floor.    Make  sure  the   Sheriff takes you off the list for evictions for that date. Remember that you will be automatically rescheduled for the new  date  specified  in  the  judge’s  order,  and  you  will  not   receive any new notice from the Sheriff. 4. If possible, let us know what happened. Good luck! The  Natalie  Lanam  Justice  Center  •  Sobrato  Center for Nonprofits – Redwood Shores 330  Twin  Dolphin  Drive,  Suite  123    •    Redwood  City,  CA  94065  •    650.558.0915    •    Fax   650.517.8973    •    Toll-free 800.381.8898

LAW FOUNDATION OF SILICON VALLEY

152 North Third Street, 3rd Floor San Jose, California 95112 Fax (408) 350-1158      •        Telephone  (408)  294-9730        •        TDD  (408)  294-5667

GETTING MORE TIME TO MOVE AFTER YOU RECEIVE A SHERIFF’S  NOTICE  TO  VACATE1 After  you  receive  the  Sheriff’s  Notice  to  Vacate  posted  on  your  door,  you  have  the  right  to  apply   for  a  “Stay  of  Eviction.”    The  law  allows  judges  to  grant  people  who  are  being  evicted  up  to  40   additional days in the home if moving immediately would result in a hardship to them. You should be aware that the judge is not required to grant a tenant the additional time if doing so would result in a hardship to the landlord or the landlord has a good reason for needing the tenant out in fewer than 40 days. Step 1

Step 2

Step 3

Step 4

1

Decide how many days you want to stay in the home.  The law allows you to stay for up to 40 days from the date of judgment, so long as you can pay the daily rental value for however many days you would like to stay.  The date of judgment was the date that you went to court and the judge decided that the landlord has the right to possess the home. Start counting your 40 days from  that  date,  not  the  date  that  the  Sheriff’s  notice  was  posted  on  your  door. Figure out how much money you will need to pay for the number of days that you would like to stay.  You  can  find  the  daily  rental  value  on  the  landlord’s  complaint  against  you,  or   the  judgment  that  was  posted  on  the  door  with  the  Sheriff’s  notice.  If you cannot find the daily rental value on either of these documents, you can figure it out by dividing your monthly rent by 30.  Monthly rent: ________________ /30 days = $ ____________ per day.  Multiply the daily rental value by however many days you want to stay.  In order to get the Stay of Eviction, you will need to pay the amount of money that you owe to the court on the day that you get your Stay – see Step 7, below. Decide what day you will go in to court for your Stay and give notice to your landlord or his attorney (if he has one, you must give notice to the attorney).  You need to go in to court no later than the court day  BEFORE  your  Sheriff’s   notice expires.  Example:    If  your  Sheriff’s  notice  expires  on  Tuesday,  October  16  at  12:01  AM,   you need to go in no later than Monday, October 15.  After you figure out which day you will go to court for your Stay, call your landlord or his attorney (if he has one) before 10:00 AM at least one business day before you plan to go to court. Let them know that you are going to court for a Stay of Eviction and the date that you plan to go in.  Write down the phone number that you dialed, the name of the person that you spoke with and the date/time that you called. Complete the provided pleadings in blue or black ink.  The Law Foundation has forms for people with and without Section 8 vouchers.  You will take these in to court.

Not for residents of Morgan Hill, San Martin or Gilroy – different procedures apply for the South County Courthouse

Step 5 Step 6

Step 7

Step 8

Make 2 copies, in addition to the original.  You will take these to court with you. Go to Court at 8:15 AM on the date that you have selected to get your Stay.  For all cities in Santa Clara County except for San Martin, Morgan Hill or Gilroy, you will go to the Downtown Superior Courthouse at 191 N. First Street in San Jose.  Go  directly  to  the  “Civil  Calendar  Office”  with  your  Stay  paperwork  AND  the   copy  of  the  Sheriff’s  Notice  to  Vacate  that  you  received  on  your  door.      Unless you already have a fee waiver on file from earlier filings in this eviction case, such as your Answer, you will have to take a filing fee or turn in an application to waive court fees if you are low income. Currently, the filing fee for a Stay of Execution is $60.  If you do not already have a fee waiver on file and need to file an application for one, the Law Foundation can provide you with the necessary forms.  The  clerk  will  process  your  paperwork  and  give  you  a  “hall  pass”  to  go  to  the   courtroom where the judge will consider your application for a Stay of Execution.  The landlord or his attorney may come to court to argue against your request for more time.  Go to the courtroom number listed on your hall pass and give your papers to the courtroom clerk or deputy. They will give your papers to the judge for review.  If the judge grants your request, the courtroom clerk will give you an Order showing how many days the judge has granted you and telling you how much you have to pay to get your extra time.  Depending on whether the landlord opposes your request, the judge may want to talk to you and the landlord. The judge may or may not grant any or the entire amount of time that you have asked for. File your forms.  If  the  judge  grants  your  request  for  more  time,  you  have  to  take  the  judge’s   Order  and  copies  of  your  paperwork  to  the  “Civil  Clerk’s  Office”  on  the  first   floor of the courthouse. This is a different room than the room where you took your paperwork first thing in the morning.  By 4:00 PM on the same day that the judge grants your request, you must go to the  Clerk’s  office  and  pay  the  clerk  for  your  extra  days.    Usually,  people  do  this   immediately after getting the Order from the judge, if they have the money available with them at that time.  Your payment must be in the form of a money order, cash, or certified check only.    Money  orders  and  certified  checks  must  be  made  out  to  “Superior  Court Clerk.”      The  court  clerk  will  call  the  Sheriff’s  department  to  tell  them  about  your  Stay   so that they know not to evict you yet. Mail  a  copy  of  your  forms  and  the  judge’s  Order  to  your  landlord  or  his  attorney   (if he has one).

Updated October 2012

VI. SPECIAL TYPES OF TENANCIES

VI. SPECIAL TYPES OF TENANCIES A.

Subsidized Housing and Affordable Housing 1.

Public Housing

Public   housing   is   low   income   housing   owned   and   operated   by   a   local   government’s   public   housing authority. The Department of Housing and Urban Development (HUD) provides federal housing subsidies to individuals through local Housing Authorities and is responsible to ensure that the public housing authority properly operates public housing. a.

Lease Requirements for Public Housing

The requirements for a public housing lease, as well as grounds and procedures for eviction, are set forth at 24 CFR § 966.4. Under a public housing lease, the housing authority is required, among other things, to: 1. 2. 3. 4.

Maintain the dwelling unit and project in decent, safe and sanitary condition; Make necessary repairs to the dwelling unit; Notify the tenant of the specific grounds for any proposed adverse action (i.e., lease termination); and Inform the tenant of her right to request a grievance hearing concerning certain types of proposed adverse action.

Under a public housing lease, the tenant is required to: 1. 2. 3.

Keep the dwelling unit in a clean and safe condition; Act, and cause household members and guests to act, in a manner which will not disturb other residents' peaceful enjoyment of their accommodations; and Assure that the tenant, members of the household, guests and persons under the tenant's control do not engage in either of the following: a) Criminal activity that threatens the health, safety, or right of peaceful enjoyment of the premises by other residents or employees of the housing authority. b) Drug-related criminal activity on or near such premises. b.

Grounds for Eviction

The statute governing grounds for eviction can be found at U.S.C.A. § 1437d(1)(5). Housing Authorities can evict a tenant for activity that threatens the health, safety or right of peaceful enjoyment whether or not the activity is criminal in nature. They are also permitted to evict for drugrelated activity occurring on or off the premises. However, if these grounds are not stated in the lease as grounds for eviction, then the housing authority may not be able to rely on them. It is important to scrutinize the lease carefully because it might be an older lease which may not contain provisions that the governing statutes or regulations would permit to support an eviction. Often times, landlords may attempt to rely on the most recent statutes or regulations as a basis for an eviction, but cannot do so if their leases have not been updated to reflect current federal law. Where the lease does not contain the more stringent provisions for eviction or lease termination permitted by the regulations or statutes, it should be relied upon in defending a tenant. Conversely, where the lease contains more stringent

provisions for eviction than the regulations or statutes permit, the latter should be used to support the tenant's defense. A public housing tenant with a physical or mental disability can only be evicted if the problem persists after the Housing Authority has provided the tenant with reasonable accommodations to address any issues that are disability related. The housing authority can only terminate the lease for serious or repeated violations of material terms of the lease, such as failure to pay rent or failure to fulfill tenant obligations set forth in the lease, or for other good cause. 24 CFR § 966.4(1)(2). Although good cause is not defined, it does serve to limit the housing authority's ability to evict for arbitrary, or improper, reasons, and the term of the lease violated must be a material term. Even where the ground for eviction is criminal activity, the housing authority has discretion to permit all or some of the family to remain in the dwelling unit after considering all the circumstances, such as the seriousness of the offense, the extent of participation by family members and the effect that eviction will have on family members not involved in the criminal activity. 24 CFR § 966.4(1)(5)(l). In HUD v. Rucker (2002) 535 U.S. 125, the United States Supreme Court held in an Oakland Housing Authority case that under a statutorily required lease provision, a public housing authority can evict an entire family if any member of the household, or any guest or any other person under the control of a household member, engages in drug-related or certain criminal activity, regardless of whether other household members were involved in or knew of the criminal activity, and regardless of where the activity took place.1 c.

Termination Notice

To evict a public housing tenant, the housing authority must first serve the tenant with a notice of termination. The notice must be written and it can be a 30 day notice, 14 day, or some other duration less than 30 days depending on the reasons for the eviction. For non-payment of rent, 14 days is required.2 A reasonable time not to exceed 30 days is required where the health and safety of other residents or housing authority employees is threatened. Thirty days is mandated in any other case.3 24 CFR § 966.4(1)(3). A termination notice, other than for nonpayment of rent, must state the specific grounds for termination. It must also inform the tenant of his/her right to reply to the notice, as well as his/her right to inspect housing authority documents relevant to the termination or eviction. If the housing authority is required to afford the tenant a grievance hearing, then the notice must inform the tenant of his/her right to request a hearing. Even if the housing authority is not required to provide an opportunity for a grievance hearing, the notice must inform the tenant of that fact, state that HUD has determined the judicial procedures for the eviction contain the basic elements of due process and state whether the eviction is for drug-related activity or criminal activity.

1

Just because a housing authority offers an allegation of criminal activity does not preclude a tenant from offering a defense to show the allegation is untrue and/or offering other facts which would provide a defense. 2 A 14 day notice to pay rent or quit must be stated in the alternative, allowing the public housing tenant to pay rent owed within the 14 day period or else risk eviction. 3 A public housing tenant served with a 30 day notice must pay rent during the duration of the 30 days and must move out at the expiration of these 30 days or else risk eviction.

d.

Grievance Procedure

The regulations and requirements for the grievance procedure are set out at 24 CFR § 966.50 et. seq. A grievance procedure should assure a tenant the opportunity for an administrative hearing if he/she has a dispute with the housing authority in matters involving the lease or housing authority regulations that affect her individual tenant rights, duties, welfare or status. The termination of a tenancy or eviction that involves either (criminal) activity that threatens the health, safety or peaceful enjoyment of others or drug-related criminal activity can be excluded from the grievance procedure. However, the grievance procedure is required to be incorporated into the lease and the housing authority must provide a copy of the grievance procedure to the tenant. Where a tenant is entitled to request a grievance hearing concerning the lease termination, he/she should do so in a timely manner or else risk his/her right to a hearing. If a timely grievance hearing is requested, the housing authority cannot file an unlawful detainer complaint until the grievance process has been completed.4 Once the decision is rendered by the grievance hearing officer or panel, the housing authority, except in very limited circumstances, is required to take all actions, or refrain from any action necessary to carry out the decision. If the decision is to uphold termination of the lease, it is unsettled law whether or not the housing authority must serve another termination notice before filing the unlawful detainer complaint. 2.

Section 8 Housing Programs

There are generally two Section 8 based programs: (1) project-based programs, where the subsidy is tied to the unit and the tenant cannot take the subsidy with them when they move; and (2) the Housing Choice Voucher program, the most common Section 8 Housing program, where the tenant can use the subsidy in any private apartment where a landlord will accept the program requirements. In each of the Section 8 programs, the tenant pays approximately 30% of the household income in rent. a.

Project-Based Section 8 Programs

These programs are unique to particular buildings. If the tenant moves out, that person no longer has a rental subsidy because the subsidy remains with the unit to be used by the next tenant. There are various programs, including: 1. 2. 3.

Section 8 New Construction: 24 CFR § 880.607 Section 8 Substantial Rehabilitation: 24 CFR § 881.104(c) Section 8 Moderate Rehabilitation: 24 CFR § 882.511

Leases and regulations for these programs vary. For example, the termination notices for Section 8 New Construction and Substantial Rehabilitation must advise the tenant of his/her right to respond to the landlord. It is, therefore, very important to know exactly which Section 8 program is involved when assisting a Section 8 project-based tenant.

4

The grievance hearing is an informal process and although the rules of evidence do not apply, tenants have the right to review their case file prior to the hearing and also have the right to bring legal representation to the hearing itself.

To determine the program(s) under which the tenant or his/her unit is subsidized, the tenant should be asked and the lease or the notice should be reviewed. The lease or notice will often identify the subsidized program directly or by its wording. The HUD regional office in San Francisco can also be consulted and will have lists of all public housing and federally subsidized housing within its jurisdiction. If the local housing authority is involved, it is likely that the housing is either public housing or Section 8 Voucher Program. b.

Tenant-Based Section 8 Voucher Program

The regulations for the Section 8 voucher program are found at 24 CFR § 982 et. seq.5 The housing authority contracts directly with a private landlord of existing housing to pay a portion of the tenant's rent. In the voucher program the contract between the housing authority and the owner is called the Housing Assistance Payment (HAP) contract. A primary characteristic of the voucher program is that the tenant can move the subsidy to a new unit with a new landlord. Once a new applicant receives a Section 8 voucher, she has 120 days to find a Section 8 unit or home. There is generally a waiting list of several months to several years, just to be considered as an applicant to the program. These waiting lists typically remain closed to new applicants except for very narrow periods of time. Note: A Section 8 voucher holder's tenancy can be threatened in two ways. First, by a housing authority administrative decision to terminate the voucher (and, thus, the rent subsidy which allows the tenant to afford housing). Second, by an unlawful detainer action filed by the landlord. This manual covers only evictions by landlords. The law governing a housing authority's voucher termination proceeding is found at 24 CFR § 982.551 et. seq. If assisting a tenant in such a proceeding, consult the particular housing authority's Section 8 Administrative Plan. i.

Grounds for Eviction

Generally, the recipient of a Section 8 voucher has a one year lease in effect for the first year of their tenancy. At the end of the one year lease period, the tenancy then becomes a month to month tenancy. Pursuant to 24 CFR § 982.310, a one year lease may only be terminated for the following reasons: 1. 2.

5

Serious or repeated lease violations; Violations of federal, state or local law that impose obligations on tenants in connection with the occupancy or use of the premises; or Other good cause. Good cause may include criminal activity that threatens the health, safety or right to peaceful enjoyment of residents or neighbors or drug-related criminal activity on or near the premises by the tenant, members of the household, guests or person under the tenant control constitutes a ground for termination of tenancy. Examples of other good cause for termination of tenancy are found at 24 CFR § 982.310(d).

The precursor to the voucher program was the Section 8 Certificate program. This program has been completely replaced by the voucher program, however if a tenant has a lease or HAP contract that was entered into before 10/2/95 the Section 8 Certificate regulations may apply (see 24 CFR § 882, et. seq.).

During a month to month tenancy, the tenancy may be terminated for any reason, or for no reason at all. Although some rent control jurisdictions require just cause for the termination of a month to month tenancy, Section 8 leases are generally exempt from these local rent control ordinances. ii.

Notice of Termination

The termination of a Section 8 tenancy generally involves one of the following three types of notice: 1. 30 Day Notice: Within the first year of a Section 8 tenancy, a 30 day notice may be served on a Section 8 tenant for cause (see Public Housing, Section 3 above for an explanation of cause). This notice must specify the grounds for the termination and a tenant may dispute the alleged causes as part of her defense to an unlawful detainer. 2. 90 Day Notice: This notice is required by state law for tenants with government funded rental assistance, such as Section 8, where the landlord wants to terminate or not renew his contract with the governmental agency that provides the subsidy. See Civil Code § 1954.535. 3. Three Day Notice: California Civil Code of Procedure § 1161 requires a three day notice for terminations based on nonpayment of rent or nuisance related activity. This state law applies to Section 8 tenants. The owner is required to provide a copy of the notice of termination to the housing authority. 24 CFR 982.310(e)(2)(ii). The failure of a landlord to comply with one of the above mentioned notice provisions is grounds for a demurrer motion or may be included as an affirmative defense in an answer to an unlawful detainer. iii.

Lease Provisions

Although the housing authority is not a party to the lease between the owner and the tenant, the lease must be approved by the housing authority. The lease is required to contain certain provisions and is prohibited from containing others. 24 CFR § 982.308. The lease becomes effective when the landlord and housing authority entering into a HAP contract. 3.

Other Federally Subsidized Housing

There are numerous housing programs subsidized by the federal government other than public housing or the Section 8 voucher. Some of the more prominent ones are § 221(d)(3) and § 202. These programs were established to help private landlords (often not-for-profits) provide rental housing for low-income families. These programs are governed by federal regulations (24 CFR § 247) and the HUD Handbook 4350.3 which impose specific requirements on program management and termination of tenancy. Grounds for Eviction. The eviction regulations for these programs are found at 24 CFR § 247, et. seq. The grounds for termination of tenancy are: 1. 2. 3.

Material noncompliance with rental agreement (examples are found at 24 CFR § 247.3(c); Material failure to carry out obligations under a state landlord/ tenant act; and Other good cause.

Notice of Termination. The termination notice must state: 1. 2. 3. 4. 5.

Date the tenancy is terminated; Reason for the termination with enough specificity to enable the tenant to prepare a defense; Termination of tenancy can only be enforced by bringing judicial action; Tenant may present a defense; and Tenant has the right to discuss the proposed termination with management within ten (10) days of receiving the notice.

In an unlawful detainer action, a landlord must generally rely only on the grounds for termination stated in the notice. If the termination is based on "other good cause" the tenant is entitled to a 30-day notice. B.

Mobile Homes

California law provides special protections for mobile homeowners (homeowners) who rent spaces in mobile home parks (Park). State law protections include the Mobilehome Residency Law, Cal. Civ. Code §§ 798 et. seq. and the Recreational Vehicle Park Occupancy Law, Civil Code §§ 799.20-799.79. Local mobile home rent ordinances may be available. Check with your supervising attorney to identify other protections that may be available for your client. According to state protections, a mobile home includes manufactured homes, RVs and trailers if they are parked in a mobile home park for nine months or longer. A mobile home park is any place that rents out two or more spaces to mobile homes. These special protections do not apply to motor homes, truck campers or camping trailers. RVs  that  have  been  in  place  for  more  than  thirty  days  are  considered  “mobile  homes”  and  the   Mobilehome Residency Law applies. When a mobile homeowner moves into a mobile home park, the homeowner must be given a written rental agreement that includes:

1. 2. 3. 4. 5.

The length of the tenancy; The park rules and regulations; The improvements and common facilities the park is responsible for; A list of  the  park’s  services  and  fees; and A copy of the Mobilehome Residency Law.

Park managers must either offer the homeowner a tenancy for 12 months or any period less than 12 months if they request it. The homeowner can also ask for a lease term longer than 12 months if both the homeowner and the park management agree. The homeowner is bound by all of the park rules and regulations. The rules and regulations must be reasonable. The park rules should be listed in the rental agreement. If the park wants to change a rule, it must first meet with all of the homeowners to discuss the proposed change. After this meeting, the park can change the rules, even if the homeowners do not agree with the proposed rules. The new rule will not take effect for 60-days if it involves recreational facilities. All other rules will not take effect until 6-months after the homeowners meeting.

The park rules and regulations cannot deny homeowners the right to a trial by jury or require binding arbitration of any dispute between management and the homeowner. Mobile homeowners have the following rights: 1. 2. 3. 4.

Meet with other homeowners to discuss park issues at reasonable hours. He/ she can use the community clubhouse at his/ her mobile home park if it is not in use; Invite public officials, candidates, or mobile home organizations to speak; Survey or petition homeowners on non-commercial park issues at reasonable times and in a reasonable manner; and Meet with park management within 30-days of a written request to discuss existing park rules, the condition of the park, or rental agreements.

For more info, advise the homeowner to call the Golden State Mobilehome Owners League at (800) 8881727. Reasonable Accommodation/Disabilities. If the homeowner cannot comply with a park rule because   of   a   disability,   the   homeowner   can   request   a   reasonable   accommodation.     (See   MHAP’s   information  sheet,  “Reasonable  Accommodations  in  Housing”).    If  the  homeowner  lives in a senior only park, his/her parent, siblings, children and grandchildren can live with him/ her if they are over 18 and need you to care for them. If the homeowner is over 55 and lives in a senior only park, he/ she can have one adult live with him/ her as a live-in attendant. If a park has a rule prohibiting pets, it must say so in the rental agreement. If the park changes the  rule  to  “no  pets”  after  the  homeowner  moves  in,  he/  she  can  keep  the  pets  the  homeowner  at  the   time he/ she moved into the park. The homeowner can keep a pet if he/ she is disabled and needs the pet because of a disability. The park cannot charge pet fees unless the park offers special facilities or services for pets. Rent Increases. The monthly rent must be included in the written rental agreement when the homeowner moves into the mobile home park. If the park wants to change the rent, it must give 90days written notice before it can do so. The park management can change the rent even if the homeowner has a fixed term lease. While rent increases are not limited by California law, some cities limit rent increases. Check with the supervising attorney to see what local rent control ordinances may be in place. Security Deposits. The mobile home park can require a security deposit, but must do so only when the homeowner first moves into the park. The security deposit cannot be more than two (2) months’  rent.    After  the  homeowner  has  lived  in  the  park  for  twelve  (12)  months  and  has  paid  the  rent   and fees on time during this twelve-month period, the homeowner can ask for his/ her security deposit back. Mobile Home Tenants and Guests. Family members, such as a spouse, children, parents and grandchildren, can live with the homeowner. If the homeowner lives alone, he/ she can share the home with one roommate who should not be required to register with the park or pay a fee. A person renting a room in a mobile home is protected by tenant-landlord laws. Guests do not have to register or pay a fee as long as they stay less than 20 days in a row and less than 30 days a year.

Evictions from Mobile Home Parks. The park can evict the homeowner, but only for limited reasons. The park must give the homeowner 60-days written notice to end the tenancy. A copy of the notice must be sent to any legal owners, junior lienholders, and registered owners of the mobile home. The park can only evict the home owner with a 60-day notice for the following reasons: 1. The homeowner does not fix a problem with the mobile home space within a reasonable period of time, after a warning by a government agency; 2. The homeowner  acts  in  a  way  that  is  a  “substantial  annoyance”  to  other  homeowners  and   residents living with other homeowners; 3. The homeowner is convicted of prostitution or a drug-related felony which took place in the park; 4. The park is being condemned; or 5. The homeowner does not follow a park rule after having been given three prior 7-day written warnings for violating the same park rule within the last year. 6. The homeowner fails to pay rent, utilities, or fees after having received a 3-Day Notice to Pay Rent or Quit. If the mobile home park is changing its use, 60 days written notice is not enough. The park must give the homeowner between six months to one year written notice depending on the change in use. If the homeowner or mobile home tenant stays past the notice period, the park must go through the court’s  unlawful  detainer  process  to  have  the  individual  evicted.    The  park  cannot  tow  the  mobile  home,   lock the individual out, or shut off utilities to try to get the individual out sooner. After judgment is entered against the homeowner in an unlawful detainer action, the mobile home park can obtain a judgment lien on the mobile home. This means that the mobile home may be seized and sold by the mobile home park after the park provides a 10-day notice of sale to the homeowner. If the homeowner is not in default of rent, he/ she may try to sell the mobile home him/herself  or  move  the  home  from  the  park.    The  Park  may  also  get  a  warehouseman’s  lien  for  storage,   utilities, and reasonable maintenance charges, if the homeowner does not pay these charges. A warehouseman’s  lien  will  not  lead  to  the  forced  sale  of  the  mobile  home,  but  will  attach  to  the  home.   However,  before  the  Park  can  obtain  a  warehouseman’s  lien,  you  must  owe  at  least  three  months’  rent.   Selling a Mobile Home. Park management can insist on the right to approve any purchaser of the mobile home who plans on remaining in the park. Park management can also require that the original owner give them prior notice of the sale of the mobile home before closing the sale. The park management can require that the original owner make repairs or improvements to the park space for damage caused before the purchase of the home.

MENTAL HEALTH ADVOCACY PROJECT Asistencia Legal Para La Salud Mental

Law Foundation of Silicon Valley 152 North Third Street, 3rd Floor San Jose, California 95112 (408) 294-9730  FAX (408) 350-1158  TDD (408) 294-5667

MOBILE HOME TENANCIES Are there special protections for mobile home owners? Yes, California law provides special protections for mobile home owners who rent spaces in mobile home parks. A mobile home includes  manufactured  homes,  RV’s  and  trailers if they are parked in a mobile home park for nine months or longer. These special protections do not apply to motor homes, truck campers or camping trailers. A mobile home park is any place that rents out two or more spaces to mobile homes. What happens when I move in? When you move into a mobile home park, you must be given a written rental agreement that includes the length of your tenancy, the park rules and regulations, the improvements and common facilities the park is responsible for, and a list  of  the  park’s  services  and   fees.    The  park  must  also  give  you  a  copy  of  the  “Mobile  Home  Residency  Law.”    Park  managers  must  either  offer  you  a  tenancy  for 12 months or any period less than 12 months if you request it. You can also ask for a lease term longer than 12 months if both you and the park management agree. Can my rent change after I move into the mobile home park? Your monthly rent must be included in the written rental agreement when you move into the mobile home park. If the park wants to change your rent, it must give you 90-days written notice before it can do so. The park management can change your rent even if you have a fixed term lease. While rent increases are not limited by California law some cities limit rent increases. For more information, call (408) 277-5431 (San Jose) or (408) 287-2557 ext. 120 (Los Gatos). Can I be charged a security deposit when I move into the park? Yes, the park can ask you for a security deposit, but only when you first move into the park. Your security deposit cannot be more than two (2) months rent. After you have lived in the park for twelve (12) months and have paid your rent and fees on time during this twelve-month period, you can ask for your security deposit back. Who is allowed to live with me? Family members such as your spouse, children, parents and grandchildren can live with you. If you live alone, you can share your home with one roommate who does not have to register with the park or pay a fee. Guests do not have to register or pay a fee as long as they stay less than 20 days in a row and less than 30 days a year. Are there any limitations on park rules and regulations? After you move into the mobile home park, you are bound by all of the park rules and regulations. Unfortunately, the only limitation on park rules and regulations is that the rules and regulations must be reasonable. Further, the park rules and regulations cannot deny homeowners the right to a trial by jury or require binding arbitration of any dispute between management and the homeowner. If you cannot  comply  with  a  park  rule  because  of  your  disability,  you  can  request  a  reasonable  accommodation.    (See  MHAP’s  information sheet,  “Reasonable  Accommodations  in  Housing”).   Are there special rules for senior only parks? If you live in a senior only park, your parent, siblings, children and grandchildren can live with you if they are over 18 and need you to care for them. If you are over 55 and live in a senior only park, you can have one adult live with you as a live-in attendant. Can I have pets? If  a  park  has  a  rule  prohibiting  pets,  it  must  say  so  in  the  rental  agreement.    If  the  park  changes  the  rule  to  “no  pets”  after you move in, you can keep the pets you had when you moved into the park. You can keep a pet if you are disabled and need your pet because of a disability    (See  MHAP’s  information  sheet,  Reasonable  Accommodations  in  Housing).    The  park  cannot  charge  pet  fees  unless  the park offers special facilities or services for pets. Can the park change its rules? The park rules should be listed in the rental agreement. If the park wants to change a rule, it must first meet with all of the homeowners to discuss the proposed change. After this meeting, the park can change the rules, even if the homeowners do not agree with the proposed rules. The new rule will not take effect for 60-days if it involves recreational facilities. All other rules will not take effect until 6-months after the homeowners meeting.

Last Updated 2/20/03

What are my rights as a mobile home owner at a mobile home park? You have the right to: 1. Meet with other homeowners to discuss park issues at reasonable hours. You can use the community clubhouse at your mobile home park if it is not in use; 2. Invite public officials, candidates, or mobile home organizations to speak; 3. Survey or petition homeowners on non-commercial park issues at reasonable times and in a reasonable manner; and 4. Meet with park management within 30-days of a written request to discuss existing park rules, the condition of the park, or rental agreements. For more information about your rights, you can call the Golden State Mobilehome Owners League at (800) 888-1727. What happens if I want to sell my mobile home? Park management can insist on the right to approve any purchaser of your mobile home who plans on remaining in the park. Park management can also require that you give them prior notice of the sale of your mobile home before closing the sale. Furthermore, park management can require that you make repairs or improvements to the park space for damage you caused. Can the park evict me? Yes, the park can evict you but only for certain reasons. The park must give you 60-days written notice to end your tenancy. A copy of the notice must be sent to any legal owners, junior lienholders and registered owners of the mobile home. The park can only evict you with a 60-day notice for the following reasons: 1. You do not fix a problem with your mobile home space within a reasonable period of time, after a warning by a government agency; 2. You  act  in  a  way  that  is  a  “substantial  annoyance”  to  other  homeowners  and  residents  living  with  other  homeowners;; 3. You are convicted of prostitution or a drug-related felony which took place in the park; 4. The park is being condemned; or 5. You do not follow a park rule after having been given three prior 7-day written warnings for violating the same park rule within the last year. 6. You fail to pay rent, utilities or fees after having received a 3-Day Notice to Pay Rent or Quit. Does the Park ever have to give me more than 60-days notice? If the mobile home park is changing its use, 60 days written notice is not enough. The park must give you between 6-months to one year written notice depending on the change in use. When can the Park evict me for non-payment of rent? If you do not pay your rent, utilities, or fess on time, the Park may give you a 3-Day Notice to Pay Rent or Quit. The Park may give you a 60-day notice at the same time. If you pay rent within the 3-day period of the notice, the Park may not proceed with the eviction. The Park also must allow you to stay if the legal owner, the junior lienholder, or registered owner of the mobile home pays within 30-days of being notified that you are behind in your rent. However, the Park does not need to give you 3-days notice and may simply give you 60 days notice if you have received three 3-Day Notices to Pay Rent or Quit over the last year, regardless of whether you paid the rent owed to cure these notices. What happens if I stay in the park past the notice period? If you stay past the notice period, the park must go through the court unlawful detainer process to have you evicted. The park cannot tow  your  mobile  home,  lock  you  out,  or  shut  off  your  utilities  to  get  you  out  sooner.    (See  MHAP’s  information  sheet  “The  Eviction   Process). What happens to my mobile home after I have been lawfully evicted from the mobile home park? After judgment is entered against you in an unlawful detainer action, the mobile home park can obtain a judgment lien on your mobile home. This means that your mobile home may be seized and sold by the mobile home park after the park gives you a 10-day notice of sale. If you are not in default of rent, you may try to sell the mobile home yourself or move the home from the park. The mobile home  park  owner  may  also  get  a  warehouseman’s  lien  for  storage,  utilities,  and  reasonable  maintenance  charges,  if  you  do  not  pay these  charges.    A  warehouseman’s  lien  will  not  lead  to  the  forced  sale  of  your  mobile  home,  but  will  attach to your home. However, before  the  Park  can  obtain  a  warehouseman’s  lien,  you  must  owe  at  least  three  months  rent.     If you receive any notice or need assistance with a mobile home matter call, MHAP at (800) 248-MHAP.

This his This information sheet is intended to provide accurate, general information regarding legal rights. It does not constitute legal advice. Because laws and legal procedures are subject to frequent change and differing interpretations, the Mental Health Advocacy Project cannot ensure the information in this information sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation.

Last Updated 2/20/03

VII.

FORECLOSURE

VII.

FORECLOSURE

Clients sometimes come to the clinic with questions about their rights and/or obligations when either  their  property  or  their  landlord’s  property  goes  into  foreclosure. A homeowner can accumulate debt secured by their homes in various ways. Most people buy a home using, in part, money borrowed from a bank or mortgage company. A homeowner may also borrow money against the equity in the property after the home is purchased; this   is   called   a  “home   equity   loan”. Furthermore, some people refinance their mortgage loan and combine it with a home equity loan. In all these situations, the lender has a lien against the home to secure repayment of the loan. When a buyer fails to make the payments due on the loan (i.e., defaults on the loan), the lender can foreclose, which means that the lender either takes ownership of the home or forces sale of the home to settle the outstanding loan debt. A homeowner who loses his/her property through foreclosure can be evicted by the new owner after service of a three-day notice to quit. Code of Civil Procedure § 1161a. A.

Types of Foreclosures

See Supplemental Materials, Foreclosure (California Courts). B.

The Foreclosure Process

See Supplemental Materials, Foreclosure (California Courts). C.

Rights of Tenants During a Foreclosure 1.

Right to Notice After Foreclosure

Under California law, tenants are generally entitled to at least 90-day notice prior to termination of  tenancy  after  foreclosure  on  certain  mortgages,  provided  that  the  tenant  is  a  “bona  fide  tenant”  (i.e.,   not the child, parent, or spouse of the owner, paying rent that is not substantially less than fair market rent, and the agreement was an arms-length transaction). The bank or new owner must give the tenant a 90-day notice before they   can   take   any   action   to   evict.     This   notice   can   be   posted   on   the   tenant’s   house. If the tenant receives a 90-day notice, their landlord is telling the tenant that they will likely bring an eviction lawsuit against the tenant if the tenant does not vacate the premises within ninety days of the posting of the notice. The landlord may not lock the tenant out at any time before the court orders eviction. The tenant should contact a lawyer right away if he/she gets a letter or notice from their current landlord  or  from  a  bank  or  another  person  claiming  that  their  landlord  “no  longer  owns  the  property.”     The  tenant’s  lease  is  still  valid  and  the  bank  or  new  owner  must  honor  the  lease  unless  they  bought  the   property at the trustee sale so that they could personally live in it. The new owner may take certain steps  to  end  the  tenant’s  lease  agreement.    If  the  tenant  receives  a  notice  or  letter  stating  that  the  lease   will end in ninety days, the tenant should contact the Housing Authority and give them a copy of the notice or letter right away. To learn  more   about   tenants’   rights   in   foreclosure,   a   tenant   may   call   the   Foreclosure Hotline at (888) 495-8020 (www.tenantstogether.orq). After the ninety days are over, the new owner still needs to bring an unlawful detainer action to eject the tenant. See Section V above for discussion on unlawful detainer actions. If there is a fixed-term

lease in effect at the time of the foreclosure, the tenant is entitled to possession for the remainder of the lease term. See Protecting Tenants at Foreclosure Act, federal law effective May 20, 2009. Where the   tenant   does   not   meet   the   definition   of   “bona   fide   tenant”   under   federal   law,   then   state   law   still   requires some notice prior to eviction. A periodic tenant who co-occupies the property with a foreclosed owner must be given a 30-day notice. Code of Civil Procedure § 1161a. A tenant who rents the property from the foreclosed owner must be given a sixty-day notice. Code of Civil Procedure § 1161b. In some jurisdictions like East Palo Alto, where a rent ordinance applies, the notice must contain a just cause for eviction under the Rent Ordinance. Gross v. Superior Court (1985) 171 Cal.App.3d 265. 2. Right to Utilities and Habitability If   the   tenant’s   old landlord was responsible for the utilities, the new owner must continue to provide utility service. It is illegal for an owner or real estate agent to try and force the tenant to leave by turning off utilities. An owner who illegally turns off access to utilities can be fined up to $100/day for their actions. Additionally, the new landlord must still maintain the property and make repairs like the original landlord. 3. “Cash  for  Keys”  Agreements     After a foreclosure, the bank or new owner will sometimes want to make changes or repairs to the property quickly and resell it as soon as possible. The law says the tenant has a right to a ninety-day notice  before  moving  or  being  evicted.    Some  banks  or  new  owners  offer  the  tenant  “cash  for  keys”  to   get them to move out sooner than the ninety days. In  “cash  for  keys,”  the  landlord  agrees  to  pay  the   tenant money in exchange for the tenant moving out very quickly. They may offer a tenant anywhere from $500 to $2,000 in exchange for moving within 5-15 days. All agreements should be in writing. If a tenant takes the money but fails to move by the date in the contract, the new landlord can often file an eviction right away. After an eviction, the Court can agree to give the tenant more time to move. See Section V. of this manual for more information. D.

Rights of Homeowners Before Foreclosure

California Homeowner Bill of Rights (HBOR). Homeowner Bill of Rights (Fair Housing Law Project).

See Supplemental Materials, California

Foreclosure READ FIRST: The following section provides very basic information that generally applies to most people. Foreclosure law is very complicated and does not fit a simple explanation, in part because the rules vary based on different situations. Nonprofit organizations in most counties, and even nationally, can help answer specific questions you may have about a foreclosure proceeding. We encourage you to contact NeighborWorks or a local housing legal aid agency or community-based nonprofit to find reliable information.

What is a foreclosure? Most people buy a home by borrowing part of the purchase price usually from a bank or a mortgage company. Other times, a homeowner borrows money against the equity in the property after the home  is  purchased,  and  this  is  called  a  “home  equity  loan.”  Sometimes  people  refinance  their   mortgage loan and combine it with a home equity loan. In all these situations, the lender usually has a lien against the home to secure repayment of the loan. When a buyer fails to make the payments due on the loan (defaults on the loan) the lender can foreclose, which means that the lender can force a sale of the home to pay for the outstanding loan. For more information about foreclosure laws: 

Foreclosure Process - Civil Code section 2924  Foreclosure Consultants - Civil Code section 2945 The law on foreclosure is changing often. Make sure you read the most updated laws. Find legal help with a foreclosure in your county.

Types of foreclosures In California, lenders can foreclose on deeds of trust or mortgages using a nonjudicial foreclosure process (outside of court) or a judicial foreclosure process (through the courts). The nonjudicial foreclosure process is used most commonly in our state. Nonjudicial foreclosure is the most common type of foreclosure in California. It is used when there is a power-of-sale clause in the deed of trust that secures the mortgage loan by giving the trustee the authority to sell the home to pay off the loan balance at the request of the lender if the borrower defaults (fails to make payments). When a lender uses the nonjudicial foreclosure process against a borrower who fails to pay on a mortgage for his or her primary residence, the lender gives up the right to collect adeficiency judgment against the borrower. But most lenders prefer this process anyway because it is much faster and less costly. 



Judicial foreclosure involves filing a lawsuit to get a court order to sell the home (foreclose). It is used when there is no power-of-sale clause in the mortgage or deed of trust.

Generally, after the court orders the sale of your home, it will be auctioned off to the highest bidder. Judicial foreclosures are rare in California. A judicial foreclosure allows the lender to get adeficiency judgment against  the  borrower.  BUT  the  homeowner  has  the  “right  of  redemption,”  which  allows  him   or her to buy the home back from the successful bidder at the auction for 1 year after the sale. The process is longer and more costly than a nonjudicial foreclosure.

Foreclosure Process These are the main steps in a nonjudicial foreclosure, which apply to the majority of foreclosures in California. 1. The lender MUST contact you and anyone else on the mortgage loan to assess your financial  situation  and  explore  your  options  to  avoid  foreclosure  (called  a  “foreclosure   avoidance assessment”).  The  lender:  Cannot start the foreclosure process until at least 30 days after contacting you to make this assessment; and  Must advise you during that first contact that you have the right to request another meeting about how to avoid foreclosure. That meeting must be scheduled to take place within 14 days.  You can authorize a lawyer, HUD-certified housing counseling agency, or other advisor to talk on your behalf with the lender about ways to avoid foreclosure. You cannot be forced to accept any plan that your representative and the lender come up with during that discussion. 2. If you and the lender have not worked out a plan to avoid foreclosure, the lender can record aNotice of Default in the county where your home is located, at least 30 days after contacting you for the foreclosure avoidance assessment. This marks the beginning of the formal and public foreclosure process. The lender sends you a copy of this notice by certified mail within 10 business days of recording it. You then have 90 days from the date that the Notice  of  Default  is  recorded  to  “cure”  (fix,  usually  by  paying  what  is  owed)  the  default.  WARNING: Since the Notice of Default is recorded as a public document, many fraudulent companies and scam artists search the public records to send defaulted borrowers  offers  to  “help”  them  avoid  losing  their  homes  to  foreclosure.  These   fraudulent companies could take your money and then do nothing to help. There are free services available from government and nonprofit organizations to help borrowers. Find help with a foreclosure in your county. 3. If you do not pay what you owe, a Notice of Sale is recorded (at least 90 days after the Notice of Default is recorded). The Notice of Sale states that the trustee will sell your home at auction in 21 days. The Notice of Sale must:   

Be sent to you by certified mail. Be published weekly in a newspaper of general circulation in the county where your home is located for 3 consecutive weeks before the sale date. Be posted on your property, as well as in a public place, usually at your local courthouse.

Have the date, time, and location of the foreclosure sale; the property address; the trustee’s  name,  address,  and phone number; and a statement that the property will be sold at a public auction. 4. At least 21days after the date when the Notice of Sale is recorded the property can be sold at a public auction. The successful bidder must pay the full amount of the bid immediately with  cash  or  a  cashier’s  check.  The  successful  bidder  gets  a  trustee’s  deed  once  the  sale  is   complete. The lender usually bids at the auction, in the amount of the balance due plus the foreclosure costs. If no one else bids, your home goes to the lender. Note: Before the foreclosure process begins, the lender or loan servicer may send you letters (over the course of several months) demanding payment. Those letters are NOT notices of default. 

Stopping the foreclosure sale You have up until 5 days before the foreclosure sale to cure the default and stop the process. This is called  “reinstatement”  of  the  loan.  During  the  21-day period after the Notice of Sale is recorded, any person or institution (like a bank) with an interest in your home has the right to redeem the home up until the nonjudicial foreclosure sale/auction. This means that they must pay the entire loan in full.

After the foreclosure Whoever buys your home at the foreclosure sale/auction cannot just change the locks to the home. The new owner must serve you with a 3-day  written  notice  to  “quit”  (move  out)  and,  if  you  do  NOT   move out in the 3 days, go through the formal eviction process in court in order to get possession of the home. That process typically takes several weeks. Learn more about the eviction process.

Rights of Tenants During a Foreclosure If there are tenants in the house that was foreclosed on and if they are in good standing and the home went into foreclosure through no fault of theirs, the new owner must honor the existing lease. BUT when the tenants have a month-to-month lease or the owner/landlord also lives in the home that is being foreclosed on, the new owner can evict the tenants or former owner/landlord. In these cases, the new owner may either (1) offer the existing tenants a new lease or rental agreement or (2) begin eviction proceedings. If the new owner chooses to evict existing tenants (other than the former owner), the new owner must give the tenants  at  least  90  days’  notice  before  starting  eviction   proceedings. 

There are other rights that tenants have in eviction cases done after a foreclosure. If a tenant is not named in the complaint for the eviction, he or she may be able to challenge the eviction at any time during the case or even after the judgment for eviction is made. If you are an occupant of a foreclosed property where the new owner filed an eviction case, talk to a lawyer or call the Tenant Foreclosure Hotline at 1-888-495-8020 to learn about your rights. Tenants in some California cities may still have a right to stay in their buildings. Cities with eviction or rent control laws prohibit new owners from using foreclosure as a reason for evicting tenants. Note: If you are a tenant and want to find out if the place you rent is in foreclosure, you can record, in yourcounty  recorder’s  office, a form called a Request for Notice, asking that you be notified of any foreclosure proceedings. This way you, as the tenant, will receive a copy of the Notice of Default and Notice of Sale and know the status of the foreclosure. You can buy a Request for Notice at stores that sell legal forms or get 1 from the customer service department of a title company.

Help for tenants during a foreclosure There are resources for tenants to get more information about their options. Read Tenant’s  Rights  in   Foreclosed on Properties. Tenants may also call the Tenant Foreclosure Hotline at 1-888-495-8020. Learn more details and read the federal law protecting tenants in foreclosures. If you need additional information, talk to a lawyer. Click for help finding a lawyer.

MORE INFORMATION ABOUT FORECLOSURE ForeclosureInfoCA.org: A project of the Public Interest Clearinghouse and the State Bar of California, this site can direct you to legal assistance, advice on avoiding foreclosure, and information on buying a home. A Guide to Mortgage Resources in California: This site, by the California Department of Consumer Affairs, provides information on buying and owning a home, as well as how to look for help with a current mortgage. Housing and Economic Rights Advocates: Has consumer pamphlets, tips, and information to help you be better informed about foreclosure, preventing foreclosure, working with lenders, and other resources. U.S. Department of Housing and Urban Development (HUD): The Department of Housing and Urban Development’s  guide  to avoiding foreclosure contains links that can help you find a local HUDcertified housing counselor, learn about refinancing options, and understand the steps homeowners can take to avoid foreclosure. © 2013 Judicial Council of California / Administrative Office of the Courts

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FAIR HOUSING LAW PROJECT Law Foundation of Silicon Valley 152 North Third Street, 3rd Floor San Jose, California 95112 Fax (408) 293-0106    •    Telephone  (408)  280-2435    •    TDD  (408)  294-5667 CALIFORNIA HOMEOWNER BILL OF RIGHTS California’s  Homeowner Bill of Rights (HBOR) adds new protections to help prevent avoidable foreclosures. HBOR requires loan servicers and lenders to provide additional notices so that borrowers will know their rights and how to contact their loan servicer to obtain a loan modification or other types of foreclosure relief. HBOR prevents “Dual  Tracking”  where  loan  servicers  put  homeowners  on  the  foreclosure  track,   even when a loan modification application is being evaluated. HBOR requires that servicers provide for a single consistent point of contact to help the homeowner through the loan modification and or foreclosure process. HBOR also requires lenders to provide proper documentation before they can foreclose, and it gives borrowers tools to enforce their rights. Before filing a notice of default (NOD), and at least 30 days prior to recording a NOD, the mortgage servicer must send a written notice to the borrower stating that if the borrower is a service member, or a dependent of a service member, he or she may be entitled to certain protections. The notice must also let borrowers know, (both military and non-military), that they have the right to request and obtain key loan documents, and their payment history. If the lender has already filed a notice of default (NOD), the mortgage servicer must send a letter to the borrower within 5 business days of recording the NOD, notifying the borrower that he or she may be evaluated for a foreclosure prevention alternative; whether an application is required to be considered; and the process by which a borrower may obtain an application. Key Requirements and Protections under HBOR 

HBOR requires servicers to acknowledge receipt of your loan modification application and prohibits them from proceeding with the foreclosure process while evaluating your eligibility.



If you submit a loan modification application, the servicer must give you written acknowledgement of receipt of your documentation within 5 business days of receipt. The notice must also provides information about the application process, advises you of any missing documents needed to make the application complete and gives you a deadline for submitting those documents.



You must be informed one way or the other of  your  lender’s  decision. Borrowers who submit a completed loan  application  must  get  a  “yes”  or  “no”  decision  from  their  servicer   before the servicer can begin or continue with the foreclosure process. A denial must include a detailed explanation for their decision.



HBOR stops the foreclosure while you wait for a decision. Once  you’ve  submitted  a completed loan modification application, your servicer cannot file or proceed with a filed foreclosure until your lender has given you a decision on your modification.



HBOR stops foreclosure if you qualify for, accept and keep current on a loan modification. If your lender says you qualify and you accept an offer, the lender cannot proceed with foreclosure, as long as you keep paying on time and as agreed in the modification.

You have 14 days to accept an offered first lien loan modification. If you do not accept the modification, your servicer can proceed with the foreclosure process 14 days after the first lien loan modification is offered. Loan servicers cannot charge you a fee to apply for a loan modification or other relief. Late fees cannot be assessed for periods during which a completed loan modification application is under consideration, during an appeal, or while timely loan modification payments are being made. If you are granted a modification or other relief and the loan is sold or transferred, the subsequent servicer must honor the agreement. HBOR does not require a servicer to offer you a loan modification if it does not participate in any such program, or if you do not meet the applicable eligibility requirements. The duty to offer an opportunity to apply for foreclosure prevention alternatives, if available through the lender, is limited to first lien loans.

Silicon Valley Community Foundation Grantee Learning Cohort December 10, 2012 New Protections for Homeowners: The Homeowner Bill of Rights provides consumers with certain protections in dealing with mortgage lenders about first mortgage delinquency issues. The Homeowner Bill of Rights codifies the rights and privileges extended to homeowners by the National Mortgage Settlement. This bill of rights, however, is distinct from the National Mortgage Settlement. While the National Mortgage Settlement applied only to Citibank, Wells Fargo, Bank of America, Chase, and Ally, the Homeowner Bill of Rights applies to any mortgage servicer that conducts more than 175 foreclosures in California in a given year. The benefits of the Homeowner Bill of Rights include: -

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-

-

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AB 278 (Eng, Feuer, Perez, Mitchell)/SB 900 (Leno, Evans, Corbett, DeSaulnier, Pavley, Steinberg): homeowners  may  seek  attorneys’  fees  and  costs  in  suing their lender  for  any  “material”  violation  of  the  laws  meant  to  protect  borrowers  facing   foreclosure. (See Civil Code § 2924.12.) AB 278 (Eng, Feuer, Perez, Mitchell)/SB 900 (Leno, Evans, Corbett, DeSaulnier, Pavley, Steinberg): a homeowner seeking assistance from her lender in avoiding foreclosure must be  given  a  “single  point  of  contact”  with  whom  she  may   communicate directly. (See Civil Code § 2923.7.) AB 278 (Eng, Feuer, Perez, Mitchell)/SB 900 (Leno, Evans, Corbett, DeSaulnier, Pavley, Steinberg): prior  to  any  foreclosure  filing,  the  lender  must  “ensure  that  it  has   reviewed  competent  and  reliable  evidence”  that  the  homeowner  is  actually  in  default   and that the lender has the right to foreclose. This prohibits robo-signing. (See Civil Code § 2924.17.) AB 278 (Eng, Feuer, Perez, Mitchell)/SB 900 (Leno, Evans, Corbett, DeSaulnier, Pavley, Steinberg): lenders must render a decision on any loan modification application by the homeowner before advancing the foreclosure process. This prohibits dual tracking. (See Civil Code § 2923.6.) AB 1950 (Davis): the statute of limitations for prosecuting mortgage-related crimes is extended from one to three years. (See Penal Code § 802.) SB 1474 (Hancock):  the  Attorney  General’s  office  has  the  power  to use a statewide grand jury to investigate and indict perpetrators of financial crimes spanning multiple counties. (See Penal Code §§ 781, 923.) AB 2314 (Carter): new homeowners will have additional time to remedy code violations, while compelling them to pay for upkeep. This addresses neighborhood blight. (See Civil Code § 2929.3; Health & Safety Code §§ 17980, 17980.7.) AB 2610 (Skinner)/SB 1473 (Hancock):  see  below  under  “New  Protections  for   Tenants.”

But there are drawbacks to the new Homeowner Bill of Rights:

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Lenders  are  not  liable  for  violations  that  are  remedied  prior  to  recording  the  trustee’s   deed upon sale. Federally chartered institutions may claim that the bill of rights is preempted by federal regulations establishing their right to foreclosure where the homeowner defaults on the mortgage. Lenders covered by the National Mortgage Settlement are exempt from liability under the  Homeowner’s  Bill  of  Rights,  so  long  as  they  are  in  compliance  with  the  “relevant   terms”  of  the  settlement. Lenders need not craft specialized programs or change their underwriting standards to help homeowners avoid foreclosure.

All provisions of the Homeowner Bill of Rights will take effect on January 1, 2013. SB 980 (Vargas) extends existing law, which was to sunset, to prohibit loan modification companies from charging an upfront fee for their services. (See Civil Code § 2944.7; Business & Professions Code § 10085.6.) AB 1599 (Feuer) requires foreclosure notices to include a summary of the notice in the five languages set forth in section 1632 of the Civil Code. (See Civil Code §§ 2923.3, 2924, 2924f.) New Protections for Tenants: AB 2610 (Skinner)/SB 1473 (Hancock) requires a ninety-day notice to evict tenants following a foreclosure sale. Longer fixed-term leases must be honored, unless the purchaser at the foreclosure sale can show that: (1) s/he will occupy the unit as his/her primary residence, (2) the tenant is closely related to the former homeowner, (3) the lease was not the result of an arms’   length transaction, or (4) the rent paid is substantially below market rate. Finally, tenants may bring a right to possession claim at any time, regardless of whether the claim form was served for not. Note that these protections for tenants are included in the Homeowner Bill of Rights. They will sunset on December 31, 2019. (See Civil Code § 2924.8; Code of Civil Procedure §§ 415.46, 1161b.) AB 1953 (Ammiano) prohibits a new property owner who has not notified the tenant of the change in ownership from issuing a three-day notice to pay rent or quit for past-due rent that accrued  during  the  owner’s  period  of  noncompliance. Landlords can sue for the rent in small claims or regular civil court. (See Civil Code § 1962.) SB 1191 (Simitian) creates a statutory duty to disclose notices of default to prospective tenants. In the event of nondisclosure by a landlord, the tenants may void the lease and sue for damages (twice the rent or twice actual damages) or elect to remain in possession and deduct one month’s  rent.    The  law  only  applies  to  one- to four-unit buildings. (See Civil Code § 2924.85.)

Housing Law Bulletin

The United States continues to be in the worst hous1 Since 2007, roughly 2 With housing prices stagnant and the unemployment rate high, nearly a quarter of borrowers currently owe more on their 3 Considering that 4

While homeowners have been the most visible face of the housing market collapse, foreclosure also has dis5

Page The Protecting Tenants at Foreclosure Act: Three Years Later HUD Addresses Discrimination on the Basis of Immigration Status, National Origin Tenants, Local Governments Continue to Litigate Anti-Immigrant Housing Laws

181 186

current on mortgage payments until a sale occurs and an eviction notice from the purchaser appears on the propnotices rarely gave unsuspecting tenants enough time to ing patchwork of local and state laws provided tenants with little to no relief,6 resulting in abuses by banks and

188 191 194

Green Book Order Form

Too

by foreclosure, Congress enacted the Protecting Tenants 7 The PTFA establishes matically changed the post-foreclosure landscape for tenants, entitling the vast majority to adequate notice before

201 * with the Legal Aid Society of San Mateo County, and Kent Qian, an

Recent energy retrofits at the Crescent Park development in Richmond, California, included a 900-kilowatt photovoltaic system, which is among the world’s largest affordable housing solar installations.

1

available at http://

2

$26 Billion Deal Is Said to Be Set available at

for Homeowners, N.Y. Times 3

Decreases in First Quarter of 2012 (July 12, 2012), available at http:// Editorial, Still Depressed, After All These Years, N.Y. Times, June 24, 2012, available at

4

The Housing Law Bulletin is published 10 times per year by the Opinions expressed in the Bulletin are those of the authors and should not be construed as representing the opinions or policy of A one-year subscription to the Bulletin Inquiries or comments should be directed to Meliah Schultzman, Editor, Housing Law Bulletin, at the National Housing Law Project, 703 Market Street, Suite 2000, San Francisco, CA 94103,

NaT’l low iNcome Hous. coal., ReNTeRs iN FoReclosuRe: DeFiNiNg THe PRoblem, iDeNTiFYiNg soluTioNs 7 (2008), available at 6 NaT’l law cTR. oN HomelessNess & PoveRTY, wiTHouT JusT cause: a 50-sTaTe Review oF THe (lack oF) RigHTs oF TeNaNTs iN FoReclosuRe (2009), available at 5

7

2009), as amended by

visions and highlights recent developments in case law

is not substantially less than fair market rent for the 12

The PTFA was enacted as part of the Helping Families sure sale8 occurring after its date of enactment, May 20, 9

10

The PTFA establishes that any immediate successor in interest pursuant to a foreclosure sale assumes the prop11

The PTFA obligates the immediate successor in interancy until the end of the lease term, so long as the lease 13 The one exception to honoring the remaining term of the lease is for a successor in interest who will occupy the unit as 14 Even then, the lease is terminable only upon giving the tenant adequate notice to 15 Tenants without leases or

two types of tenancies that survive foreclosure: (1) any 16

tenancy that participates in the Section 8 Housing Choice must adhere to the parameters set forth in the PTFA to

Section 703 of the PTFA provides heightened protec17 First, by virtue Second, there is no explicit requirement that the tenancy have been entered into prior to transfer of title becoming com18

where three conditions are met:

In the case of a Section 8 tenancy, the successor in interest assumes the property “subject to the lease between the prior owner and the tenant and to the housing assistance payments contract between the prior owner and the pub19 By law, every

parent of the mortgagor; transaction; and See

8

The PTFA establishes that “in the case of an owner who is an immediate successor in interest pursuant to foreclosure during the term of the lease vacating the property prior to sale shall not constitute 21 In other words, the successor in interest may not use a desire to resell the property without ten20

Section 702 of the PTFA applies “[i]n the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real 9

“[i]n the case of any foreclosure on any federally-related mortgage loan ing this language, a New York state trial court held that Congress had exceeded its authority by regulating post-foreclosure tenancies absent a See

12

Id Id 15 Id 16 Id 13 14

See

see

see also cf. Protecting

17

18

ing the new tenant protection requirements applies to all successors in interest of residential property, regardless of whether a Federally related

Id.

19 20

available at http:// 10 11

Id.

21

See Sachdev

Identical to Section 702, the only exception to this rule is where the successor in interest plans to occupy the prop-

interpreted this to mean that the 90-day period must be In Bank of New York Mellon v. De Meo, the Arizona Court of Appeals held that the statute “requires that the provided in the notice to vacate be not less

22

27

The PTFA delineates the minimum level of proteclaws may “provide[] longer time periods or other addi23 Accordingly, the PTFA is inferior state or local sure, but does not preempt any superior mon example of a state or local law that provides additional protections for tenants and is not preempted by 24 Once present only in rent-stabilized jurisdictions, recently voters in a number of other localities have enacted just cause for eviction requirements in direct 25

explicitly and unambiguously provide at least 90 days to vacate? Can it provide less notice where the reason for the eviction is not the foreclosure sale? Must the tenant pay rent during the 90-day notice period? What does “notice -

There, the bank, which had acquired the subject property

followed by an unannounced 90-day delay, is at best misIn addition, the court held that the PTFA notice must be in 28

29

Building on De Meo, the Maryland Court of Appeals in Curtis v. U.S. Bank National Association held that even a notice providing 90 days to vacate may not satisfy the PTFA if it is coupled with other misleading and contra30 In that case, the bank provided the tenant one notice to “immediately vacate, quit, and that she did not have to vacate the property until March 31 To later asserting that it had the right to immediate possessuccession of post-sale correspondence would have left 32 The court also held that a motion for 33 However, the court did minate a month-to-month tenancy must specify the last 34

Sections 702 and 703 of the PTFA each require that the successor in interest pursuant to a foreclosure sale provide the tenant with a notice to vacate “at least 90 days 26 Courts have

In two separate tentative rulings, a California trial court invalidated post-foreclosure notices for failing to state unambiguously the correct period of time that the four potentially applicable notice periods and “required the tenant to engage in legal research to determine if [he 35

To evict a Section 8 tenant, the owner also must follow other procedural protections for Section 8 tenants, such as the requirement that the owner provide a copy of the eviction notice to the local housing 22

27 28 23 24

29

See

at Foreclosure Act preempts less stringent state law termination notice requirements, a tenant in a foreclosed property is still entitled to the 25

30

Id. Id. 33 Id. 34 Id. 31

32

35

26

Id. Id.

,

90-day notice period under the PTFA, but conditioned it Because the statute imposes no such obligation on tenants, the court held that the tenant did not waive his right to a 90-day notice by 37 Furthermore, the fact that more than 90 days had elapsed between service 36

applies to post-foreclosure evictions predicated on nonpay42 In each case, the court concluded that the shorter notice period for failure to pay rent provided by the notice period, which makes no distinction between termiFederal National Mortgage Association v. Vidal court held the following: Allowing [the bank] to commence an eviction

The legal question in an unlawful detainer action shorter state law notice would stand as an obstacle to the accomplishment of the protection that Conprovides the notice required by the unlawful until a tenant must quit the premises must be

require that a 90-day notice be given as a precondition for terminating all tenancies in properties

38

Thus, whenever an immediate successor in interest pursuant to a foreclosure sale serves a termination notice

PTFA, even those tenancies where the tenant is

argue that the notice period must be clearly stated as a

Likewise, in Stanko, the court determined that the

43

39 44

that tenants have a duty to pay rent to the successor in PNMAC Mortgage v. Stanko reasoned that basic principles of common sense and fairness require tenants to pay rent to the successor in interest, because the successor in interest is

sor in interest assumes the tenancy “subject to and conditioned upon…providing the tenant a notice to vacate ‘at 45

Vidal and Stanko for the served on a tenant after a foreclosure sale, regardless of

40

Nonetheless, even where it is undisputed that the tenant has not paid rent to the successor in interest, case law supports the tenant still being entitled to the 90-day notice 41 At least two state trial courts

Section 702 provides that the successor in interest

means the date on which complete title to the property is transferred to the successor in interest as a result of

36

46 37

Id.

see 42

Stanko

Vidal Stanko 45 Id. 43

44

Salter This argument is most likely to gain traction in other states that, like California, require eviction notices to be clear and unequivocal in their See, e.g. 38 39

46

See

40

In re 41

See, e.g.

sure document, such as a notice of default or notice of 47

52

Courts therefore have been free to consider a variety of factors: sure sale was imminent;54 (2) the length of the tenancy, the lease term, and any renewal terms prior to the foreclosure sale;55 (3) the number of occupants living at the property;56 (4) the demand for and payment of rent to both the former owner as well as the successor in interest;57 (5) the purpose for which rent was demanded;58 and (6) the extent 53

In advising tenants of their post-foreclosure rights, advocates must analyze whether the tenancy predates 48 If the minimum protections to which the tenant is entitled has suggested that a termination notice that elects to use ing it as the date on which transfer of title became complete is too ambiguous to support a cause of action for

59

49

One aspect of the PTFA that remains murky is which party bears the burden of either proving or disproving 50

that the purpose of the PTFA is to protect “innocent Therefore, advocates should anticipate judicial interest in whether a particular tenancy comports with not only the letter but 60

case requires demonstrating compliance with applicable placed the burden on the tenant to prove that the ten51 This may be because the PTFA often of this mixed case law, advocates are advised to present evidence demonstrating that the tenant is entitled to the

disrupt the lives of additional thousands, if not millions, wide, advocates should coordinate strategies for ensuring n

Since the enactment of the PTFA, one of the most contentious issues has been whether a given tenancy meets

52

the rent amount as below market, advocates should secure expert 53

Valle

47

But see

the tenant not be closely related to the former mortgagor and that the See

48

49 50

Salter See Valle

54

55

Love

56

Bioh

Instead, the successor owner carries the burden of demonstrating that see also Fontaine, 2012 WL 2191300, at *3 (noting Owens

57

In re

51

Bioh Vidal 58 Sears 59 Love 60 Sears, 2011 WL 6292220, at *2; Bioh