The term “retaliatory eviction” describes a legal concept, not a state of mind. A landlord need not have good feelings towards a tenant in order to evict the tenant. Indeed, in most instances of eviction, the feelings of both parties are distinctly hostile. In a sense, every eviction is “retaliation” for some breach of the lease, be it failure to pay rent or failure to care for the property or abide by other terms of the lease.
The term retaliatory eviction as used under California law relates to legal prohibition against a landlord who seeks to evict a tenant because that tenant has exercised certain legal rights protected under the law. Such evictions are barred if and only if the landlord is seeking to evict based on the tenant’s exercise of those rights and, as discussed below, even if there are also good legal reasons to evict, if the tenant can show the motivations stem from prohibited causes, the eviction may be barred.
The Basic Law:
A Landlord’s action is retaliatory where the landlord is punishing the tenant for the tenant's exercise of a legal right. The law offers tenants protection from retaliatory eviction and other retaliatory acts. Put simply, the landlord is not allowed to evict if the motivations for the eviction stem from reprisal against the tenant for exercising legal rights specified.
Further, the law infers (presumes) that the landlord has a retaliatory motive if the landlord seeks to evict the tenant (or takes other retaliatory action) within six months after the tenant has exercised any of the following tenant rights:
- Using the repair and deduct remedy, or telling the landlord that the tenant will use the repair and deduct remedy.
- Complaining about the condition of the rental unit to the landlord, or to an appropriate public agency after giving the landlord notice.
- Filing a lawsuit or beginning arbitration based on the condition of the rental unit.
- Causing an appropriate public agency to inspect the rental unit or to issue a citation to the landlord.
- Note this is a presumption, only. The presumption may be rebutted, though the burden will be on the landlord to overcome that presumption.
In order for the tenant to defend against eviction on the basis of retaliation, the tenant must prove
- That he or she exercised one or more of these rights within the six-month period,
- That the tenant's rent is current, and that the tenant has not used the defense of retaliation more than once in the past 12 months.
- If the tenant proves the above, then the landlord must produce evidence that he or she did not have a retaliatory motive. The burden of proof is shifted to the landlord. Note that even if the landlord proves that he or she has a valid reason for the eviction, the tenant can prove retaliation by showing that the landlord's effort to evict the tenant is not in good faith and is primarily based on a goal of punishing the tenant for exercising said rights. If both sides produce the necessary evidence, the judge or jury then must decide whether the landlord's action was retaliatory or was based on a valid reason.
The cost to the landlord is not only whatever attorney fees and court costs may be awarded against the landlord, and the inability to alter rental for a minimum of one hundred and eighty days. And the damages the court may allow are not trivial: The statute provides, Any lessor or agent of a lessor who violates this section shall be liable to the lessee in a civil action for all of the following: (1) The actual damages sustained by the lessee.(2) Punitive damages in an amount of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each retaliatory act where the lessor or agent has been guilty of fraud, oppression, or malice with respect to such act. (g) In any action brought for damages for retaliatory eviction, the court shall award reasonable attorney's fees to the prevailing party if either party requests attorney's fees upon the initiation of the action.
See the statute cited below. Further, the landlord now has a hostile tenant that the landlord must retain on the premises or commence later eviction efforts from scratch, facing the same possible defense.
Note that if the tenant loses, the tenant may be liable to the landlord for attorneys fees if the landlord correctly pleaded for same in his papers filed with the court.
Retaliatory Rent Increase and Eviction, CAL. CIV. CODE § 1942.5
(a) If the lessor retaliates against the lessee because of the exercise by the lessee of his rights under this chapter or because of his complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of his rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days:
(1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, or has made an oral complaint to the lessor regarding tenantability; or
(2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability; or
(3) After the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have notice; or
(4) After the filing of appropriate documents commencing a judicial or arbitration proceeding involving the issue of tenantability; or
(5) After entry of judgment or the signing of an arbitration award, if any, when in the judicial proceeding or arbitration the issue of tenantability is determined adversely to the lessor. In each instance, the 180-day period shall run from the latest applicable date referred to in paragraphs (1) to (5), inclusive.
(b) A lessee may not invoke the provisions of subdivision (a) more than once in any 12-month period.
(c) It shall be unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of such acts, for the purpose of retaliating against the lessee because he or she has lawfully organized or participated in a lessees' association or an organization advocating lessees' rights or has lawfully and peaceably exercised any rights under the law. In an action brought by or against the lessee pursuant to this subdivision, the lessee shall bear the burden of producing evidence that the lessor's conduct was, in fact, retaliatory.
(d) Nothing in this section shall be construed as limiting in any way the exercise by the lessor of his rights under any lease or agreement or any law pertaining to the hiring of property or his right to do any of the acts described in subdivision (a) or (c) for any lawful cause. Any waiver by a lessee of his rights under this section shall be void as contrary to public policy.
(e) Notwithstanding the provisions of subdivisions (a) to (d), inclusive, a lessor may recover possession of a dwelling and do any of the other acts described in subdivision (a) within the period or periods prescribed therein, or within subdivision (c), if the notice of termination, rent increase, or other act, and any pleading or statement of issues in an arbitration, if any, states the ground upon which the lessor, in good faith, seeks to recover possession, increase rent, or do any of the other acts described in subdivision (a) or (c). If such statement be controverted, the lessor shall establish its truth at the trial or other hearing.
(f) Any lessor or agent of a lessor who violates this section shall be liable to the lessee in a civil action for all of the following: (1) The actual damages sustained by the lessee. (2) Punitive damages in an amount of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each retaliatory act where the lessor or agent has been guilty of fraud, oppression, or malice with respect to such act.
(g) In any action brought for damages for retaliatory eviction, the court shall award reasonable attorney's fees to the prevailing party if either party requests attorney's fees upon the initiation of the action.
(h) The remedies provided by this section shall be in addition to any other remedies provided by statutory or decisional law.
In many California jurisdictions, the defense of retaliatory eviction is viewed with some disfavor by most judges and juries unless the tenant is able to prove that rent is paid up and a complaint made as to the condition of the premises before the eviction commenced. Pictures of the offending condition, dated, and a written record of complaints is useful for the tenant to demonstrate that the claim is not a desperate effort to avoid the ramifications of breach of the lease by the tenant. Thus, if the tenant is making a complaint to a public agency, the wise tenant will keep a written record of the complaint to demonstrate timing and will not rely on oral testimony which can be later contested.
The landlord must demonstrate care in proceeding to eviction if a tenant has met the criteria described above. Note that the law above deals with presumptions. Even if the tenant is behind in rent, if the tenant can demonstrate retaliatory eviction by other means, the landlord may lose the case. One example known to this writer involved the landlord e mailing to his partner that he was going to get rid of a troublemaking tenant who had called in the building department and now that the tenant was late on rent, this was his chance. That e mail, by various means, ended up in the hands of the tenant and even the fact that the rent was late did not prohibit that defense.
Put simply, if the tenant falls into the above categories of actions, take particular care in your eviction efforts and do not assume that a clear breach of the lease will bar that defense. If you are a tenant, note the restrictions on using that defense presumption and the fact that if used more than once in twelve months, the presumption is that the landlord has good cause.
Common sense is needed here. If you are a tenant behind in rent in a place that admittedly should be brought up to Code, realize that you will have to prove that it is not your rent but your complaint that caused the eviction. If you have no proof but suspicion, you have a difficult case to make.
If you are a landlord and know that the tenant engaged in the type of complaint process that is protected, make sure you can demonstrate that your goals are not to punish. Repair of the offending condition is important but not enough to demonstrate your motivations. But also know that if the tenant is behind in rent, the Trier of fact is going to insist upon evidence as to your dire motivations before allowing such a defense.
Some jurisdictions are more tenant biased than others. San Francisco and Berkeley tend to favor tenants far more than Orange County or San Diego. But it is also noteworthy that those counties that seem to favor tenants often have the highest return on investments for landlords. As one client put it, “Facing this type of charge is simply one more cost of doing business. Cost benefit wise, it’s fine.” And if you are a tenant making appropriate complaint, paid up in rent, and find yourself being evicted, then know you have an excellent chance of prevailing, regardless of jurisdiction.
The goal of the law is laudable. The expense of the law may be major. But it is the law and the landlord must be careful to avoid violating it.