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Pitfalls Every California Landlord Should be Aware Of In the Unlawful Detainer Process

Posted by Mark Ruiz | Aug 26, 2020 | 0 Comments

I have represented both landlords and tenants, and I can objectively make the claim that in California it is easier to represent tenants than landlords.  There are a number of land mines that can trip up landlords in tenant friendly California. Here are some of the blunders I have seen landlords make over the years which have costed them time and money:

Failure to Pay Attention to Local Ordinances

Many landlords comply with California State Laws, but they neglect to comply with local ordinances that specify the procedure for raising rent, and properly evicting tenants.  In the Bay Area cities like San Francisco, Oakland, Berkeley, East Palo Alto, San Jose, and Mountain View there are specific ordinances that govern landlord tenant law. Often times there is a a complicated procedure for evicting tenants, such as so called "just cause" evictions where landlords can only take possession of the premises under certain circumstances, such as owner move ins. Failure to pay attention to these arcane ordinances can subject the landlord to civil liability and also frustrate their attempts to remove the tenant from the premises.

Fail to Pay Attention to the Federal Laws that Govern Section 8 Housing

When a landlord takes on a Section 8 Tenant, there is a longer notice period---90 days as opposed to 30 or 60 days--than a typical Unlawful Detainer and in addition the grounds for termination must be specified in the Notice to Terminate Tenancy. There are requirements specific to Section 8 evictions as well. Additionally, the local Section 8 Housing Agency must be kept in the loop at all steps of the process.   A failure to comply with the unique laws which govern Section 8 Housing can cause the case to be dismissed at an early stage of the proceeding.

Collect Rent After the Service of a 30 or 60 Day Notice to Terminate

Many landlords would like to have their cake and eat it to.  After the 60 day notice expires many tenants attempt to tender rent for a time period after the 30 or 60 day notice expires. This will likely have the effect of invalidating the prior notice. So for instance if a landlord serves a 60 notice which expires September 1, and then accepts rent on September 2, it would be implied by the landlord's conduct that he is waiving the notice and a new notice would need to be served.  Many tenants who are represented by attorneys and legal aid organizations are advised to this by their representatives to attempt to tender rent after the notice period expires and it never ceases to amaze me how many landlords fall for this.

Collect Rent from Tenants in a Structure that is Not Permitted or has Habitability Issues

In California, if you collect rent on a structure that is not permitted or has habitability issues, this could lead to a situation where rent is abated or, in the case of an "illegal unit", the landlord may have to refund all rents paid on the illegal unit and be liable for penalties.  In terms of Habitability issues, tenants are often advised by their representatives to call the local building inspector to see what if any code violations exist or habitability issues exist.  Often, the inspector finds violations that the landlord is not even aware of and are seemingly minor but can be used as leverage by the Tenants in their negotiations. 

File the Unlawful Detainer Complaint to Soon 

I have seen landlords jump the gun in terms of filing the complaint too early.  For instance, one time I was representing a tenant in an eviction and the landlord's attorney, a super nice guy by the way, filed the unlawful detainer action the day that the 3 day notice expired. So for instance, if a 3 day notice is served on Monday, the counting begins on Tuesday, the final day to comply is Thursday, and the earliest a complaint can be filed is on a Friday.  In the case above, the landlord's attorney began counting the day that the notice had been served. This was a fatal error, and I was able to get the complaint dismissed.

Attempting to Represent Themselves in the Unlawful Detainer 

In 2018 and 2019, I contracted with the San Mateo County Superior Court for two years to provide representation to Pro Per (self represented) landlords at settlement conferences.  The typical Pro Per landlord was a landlord who owned one or two investment property, often a hardworking immigrant or an elderly person, who wanted to save a few dollars by representing themselves. They were often equity rich but cash poor.  And in my experience, these self represented landlords  would have invariably been better off having an attorney represent them. They invariably made mistakes along the lines of the mistakes I described above and the representatives of the tenants responded to these unsophisticated Pro Per landlords like a shark that smells blood, often threatening to sue them for all they are worth for violating some arcane provision of a local ordinance if they proceeded to evict the tenants.  While this was a scare tactic to an extent, the mistakes made by the self represented landlords did not make my job easier at the settlement conferences.  I was able to negotiate settlements in perhaps 80 percent of these cases, however the terms of these agreements were not always friendly to the landlords because of the mistakes the landlords made at the earlier stages of the unlawful detainer process.  That said, they were always grateful that I was able to bring closure to the stressful process, and always said something like  "whew, I am glad this is over, but next time I will just hire an attorney".

And my advice to hire an attorney for an Unlawful Detainer is not a sales pitch. Nowadays, I am extremely selective in the unlawful detainer cases I take on and I have been focusing more on other aspects of Real Estate Law as well as Estate Planning.  Nonetheless, I still do represent landlords and tenants from time to time and often provide consultations to them to guide them on a high level. Again, as someone who has represented both sides, I can objectively state that California has becoming increasingly Pro-Tenant and the maze which landlords have to navigate has become more complex than ever before, especially with Statewide Rent Control. If you are attempting to evict a tenant in a jurisdiction such as San Francisco or Oakland, it is almost imperative to hire an attorney who not only specializes in landlord tenant law, but has experience in that specific jurisdiction.  If you are a landlord, you can eventually eradicate problem tenants but this is not the time to play lawyer or let your ego get in the way, nor is it the time to be penny wise and pound foolish.  


This article is intended for general information purposes only.  Any legal analysis or other content should not be construed as legal or professional advice or substitute for such advice.  No attorney-client or confidential relationship is formed by transmission of information.  If you require legal or professional advice, please contact an attorney or other suitable professional advisor.  The choice of an attorney or other professional is an important decision and should not be based solely upon advertisements and blog postings.


About the Author

Mark Ruiz

Mark A. Ruiz Attorney/Owner Mark  primarily focuses on Business Law, Real Estate Law and Estate Planning.  He holds a Bachelors Degree from Santa Clara University with an emphasis in Business/Marketing and a Law Degree from the University of San Francisco with a Business Law Certificate.  He ...


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