Question
Unlawful detainer without any prior notice? (Please help & God bless)?
Due to a miscommunication between a landlord and myself, I was under the impression I had a credit on my account. As such, when I paid my rent, I deducted that credit from my rent and explained why I was doing so. For all intents and purposes, I believed I had a credit. My lease is up on Sept. 30 and I physically moved into a new apartment on Sept. 1, so this apartment, while still my responsibility, was not where I was actually living anymore. My landlord was notified that I was going to be living elsewhere starting Sept. 1, so they knew they would not be able to reach me physically at this apartment. As I had the unit for a month before I had to turn it over, I took my time moving my things out. I came at least once a week, usually twice a week, to transport to my new apartment. The landlord deposited my check (with reduced rent & explanation) and I assumed that meant they had accepted it. I heard nothing from them. I had my mail forwarded to my new apartment on Sept. 1 and was receiving mail on a regular basis (bills, etc) On Sept. 23, I came to clean my carpets and there was a summons on my door for unlawful detainer. I was shocked. I immediately went down to the courts and verified that my landlord had filed the detainer on Sept. 18 and they had gotten approval for the method of "nail & mail", which at least meant I had 15 days to respond. Oddly enough, I had been to my apartment on Sept. 21 and had not seen any "summons" on my door. It seems it took them 5 days to post it after they filed it. Keep in mind, I am in public housing (subsidized) so they know where I work because I have to verify my income to qualify for housing. I called my landlord and at first she refused to speak with me. Then, three days later, she agreed to meet with me regarding the matter. She explained that I did not have a credit on my account and that I could no longer settle the matter by paying her. I offered to pay the amount overdue ($250) immediately, as this was the first I had heard of my being delinquint, but she refused and told me to call her lawyers. I did and they told me if I settled with them, I owed $1140 because of legal fees. I have never received any notice of eviction or being overdue, either posted or by mail. For the record, I have been timely and prompt with all other payments. I am doing my final walk through today and anticipate getting my security deposit back. My question is, can I fight this? I understand that there is the aspect of their word against mine regarding the notices, but I can prove I was at least there once a week (PG&E bills I looked into) and came with family & friends to help with the move. I'm not sure how to prove it, but I cannot afford these legal bills. I have replaced two malfunctioning plumbing problems in this apartment (garbage disposal and severe leak in bathroom sink area). Also, my hot water heater broke twice and one time they refused to fix for a week. These are my reasons for believing I had a credit. Does this give me any validity? Also, they forced me to vacate my unit 4 times for at least 1 day at a time for fumigation without compensation. I believe this is a breach of CA civil code? Please, any comments would be helpful. I have to make my decision fast. I really cannot afford to pay $1140, as I am financially burdened (i.e. public housing). Thanks and god bless PS: I live in CA. Also, Green V Superior Court determined that a landlord has an implied warrant of habitability. Not having hot water & having severe flooding would fall under that, I assume.
2 months ago - 6 answers
Best Answer
Chosen by Asker
The landlord is first required to give you a 3 Day Notice to Quit (some states it 5 days) prior to filing an Unlawful Detainer action. If the landlord didn't do that then the case could be thrown out of court. What you need to do now is file a written response to the court declaring that the landlord didn't served you with a 3 Day Notice. Also, claim that you withheld rent due to repairs that the landlord refused to do. Some states allow this defense, others don't. The court will have the forms you need for your answer. If you don't do that within 5 days after service the count will issue a default judgment against you. You want to have a hearing and tell the judge that the landlord didn't follow the proper legal procedure. Check with your local legal aid office. The court clerk should give you the address and phone number. You may have to pay the back rent, but if the case is thrown out of court because of the proper service of the 3 Day Notice you will not have to pay the legal fees. Also, Unlawful Detainers are heard only in Municipal or Superior Courts, not in Small Claims, except in the State of Illinois. Also, lawyers are not allowed small claims courts. ----------------------------------- California does allow for the habitability defense and does allow tenants to deduct repairs from the rent if the tenant notifies the landlord of the defect and the landlord doesn't fix the problem in a timely manner. California Civil Code 1941.1 Also, in California if you are served the Unlawful Detainer papers personally you have 5 days to answer the complaint. If it is served by mail (substitute service) you have 15 days from the mailing date to answer the complaint.
by Glenn S
2 months ago
Asker's Rating: 
Other Answers
Things breaking are no reason for a rent credit. How you assumed you had one is beyond me, and it seriously hurts your credibility. I wouldn't count on that deposit back, either. Let them sue you and explain it all to the judge. Make sure you tell him/her that you offered to pay but was rebuffed.
by Great Scott- 2 months ago
You will need to document everything carefully and let her take you to court. It's small claims court, it's all they can do to you. Chances are the judge would rule in your favor, but you have to be able to prove your case.
by Realtoratheart- 2 months ago
If you're financially burdened, then you are judgment proof. When bastards play hardball, it's up to you to play even harder. File countersuits. Claim unlivable conditions, file complaints with the housing authorities, etc. Then, ask your landlord -- Would you like me to drop my complaints in exchange for you to drop your complaints?
by zeuz- 2 months ago
Using your contacts through public housing and charity (church, community groups, etc) see if you can find a lawyer who will review your case (< 1hr) or talk to you for free. You want a lawyer who is familiar with real estate law and landlord/tenant dispute resolution. You need more specific and knowledgeable answers than you can get here. But the good news is that such advice is available to you for free, if you know where to look and how to contact them. If the circumstances are as you describe, I doubt the landlord can force you to pay such a large penalty for such a short period of time using the courts -- but the specifics depend a great deal on the rule of law in your area.
by MVD34- 2 months ago
FIGHT IT. Go to legal aid immediately. Usually they have to make several efforts to serve you before getting permission for Nail and Mail. And that means you should have gotten it in the mail, also. I wouldn't anticipate getting your security deposit back at this time. Don't pay them anything now. Cling to belief that you had a credit. Had this been normal during your tenancy that if something broke, LL would tell you to fix it and deduct from rent? Had you reported the plumbing problems to the LL before fixing yourself?
by chatsplas- 2 months ago