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Lesson 4:
Tenant's Defenses



§4.06 Retaliatory Eviction

Residential landlords must not take any of the following actions in retaliation for the tenant’s exercising his or her legal rights [see CC §1942.5(a), (c)]:

  • Increasing rent,
  • Decreasing services, or
  • Causing a tenant to quit the rental property involuntarily.

A tenant may not waive his or her rights under this statute. [CC §1942.5(d).]

A tenant has a valid affirmative defense if he or she can show that the landlord retaliated against him or her in violation of CC §1942.5. In addition, both residential and commercial tenants have a common-law affirmative defense for retaliatory actions by the landlord. [See Barela v Superior Court (Valdez) (1981) 30 C3d 244, 251; Rich v Schwab (1998) 63 CA4th 803, 811; Custom Parking, Inc. v Superior Court (MacAnnan) (1982) 138 CA3d 90, 100–101.] If the tenant proves retaliation by a preponderance of the evidence, he or she is entitled to a judgment of possession. [See CCP §1942.5; S.P. Growers Ass’n v Rodriguez (1976) 17 C3d 719, 724.]

It is not retaliatory eviction if a landlord in good faith communicates his or her belief that the tenant is violating a term of the lease. [Morrison v Vineyard Creek (2011) 193 CA4th 1254, 1268–1271 (tenant exercised legal right to conduct family child-care home on premises).]

Caution Click

The claimed retaliatory action must have occurred within 180 days of the tenant’s lawful exercise of rights. [See CC §1942.5(a).] Furthermore, the statutory defense may be used only once in a 12-month period. [See CC §1942.5(b).] No limit applies to the common-law defense of retaliatory eviction. [See Glaser v Meyers (1982) 137 CA3d 770, 774.]

A tenant who successfully defends a UD action on the ground of retaliatory eviction is entitled to recover both actual and punitive damages in addition to retaining possession of the property. [See CC §1942.5(a), (f).]


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