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Does your lease deal with any of the issues you are experiencing here--such as whether the yard is considered common space and who has exclusive use or access to the garage and drive way?
Also, with regard to the Notice to Quit, was it a Notice to Perform Covenant or Quit or just a Notice to Quit? In other words, did your landlord say you had an opportunity to cure the breaches he is alledging? Why do you think he wants to evict you?
1. Lease does not state anything about the yard. However, during a hearing at the Santa Monica Rent Control, we provided evidence that the property was listed as: with a backyard. Also, landlord and I had correspondence about the back yard. Landlord states that now suddenly backyard is common, because they live in the front unit. I have not seen any legal documents about this. Are you familiair with Santa Monica law?
2. 3 day notice, to either break down the shed or leave the property. Landlord stated that he would break down the shed if we wouldn't. We prefer to not break it down, since we don't have any space. The landlord wants to evict us because they want to live in this unit. They first tried offering us money, then put 19.000 in escrow and evicted us. We were prepared and ready to go, and 3 weeks prior to took the money out and withdrew. Since then, they moved in the front unit and have been pestering us ever since (claimed the garage and drive way back, called police on my children (they thought they walk too loud), screaming at my door with my children around), and now they want to do the gardening in our backyard. Their garage allows access to the back yard, but their unit does not allow access. Only our unit, is surrounded with the backyard.
What do you advise?
LADYLAWYER : Hello,
LADYLAWYER : It appears you tried to rate my answer earlier, although I cannot see what rating you tried to give. Hopefully, the site alerted you to the fact that the attorneys here are not always online as they have other day jobs and clients that they attend to. I may be offline at times, but I always follow up with my customers here. So I appreciate your patience.
LADYLAWYER : There is generally no civil claim for harassment in regard to a landlord tenant action in CA. Instead, harassment and retaliation are used as DEFENSES in response to an unlawful eviction by a landlord. You could always file for an order against harassment, which CA makes very easy to do. You can see more about that here: http://www.courts.ca.gov/1044.htm. You will have to file this separately from the eviction lawsuit.
LADYLAWYER : If the property was listed as "with a backyard" and the landlord did not treat it as a common area until later, which is proven in his correspondence to you, then you have an excellent, factual argument that the backyard is not a common area. A factual argument is different from a legal argument (which you would have had if the lease, a statute or case law controlled here), but since there is no precedence for this, the judge will rule on the facts alone and what the parties intended at the outset of the lease agreement. It is pretty clear from what you have told me that the landlord did not intend the backyard to be a common area and wasn't even living on the property when you moved in.
LADYLAWYER : The reason I was asking you to differentiate about the Notice was because if he had not given you an opportunity to cure the breach, you could have had the action dismissed automatically for a defective notice. But it seems he gave you the proper notice, so even though I think the court will rule in your favor, you cannot get the case dismissed on a technicality.
LADYLAWYER : At this point, the landlord will have to file an unlawful detainer (eviction) action if you do not leave or cure the alleged breach. However, it doesn't appear that you are in breach at all and thus, if this landlord follows through with the eviction action and tears down your shed, you need to countersue for damages. As long as the shed is not a permanent structure (and you said it isn't) then you will be entitled to the cost of having to replace the shed, as well as other damages for anything that was ruined when he tore the shed down.
LADYLAWYER : Specifically, you need to sue for breach of contract, conversion (if he tears the shed down), and possibly intentional infliction of emotional distress. The judge won't award you anything for the last claim, but you should still allege it. You also want to use the affirmative defenses of retaliation, unclean hands, constructive eviction and unlawful influence to vacate in your Answer.
LADYLAWYER : As I mentioned, I do believe the law is on your side and that the court will rule in your favor and award you damages here.
LADYLAWYER : If you have any further questions, please just let me know. My goal is to achieve an "excellent" service rating, so if there is anything else I can help you with, I am happy to do so! If you have no further questions, would you kindly leave me a positive rating at this time? I invite all my customers who do so to come back at any time in the future and ask me more questions at no further charge--even if it's a year from now. So if you find you need more help at a later date--say, if the landlord files the eviction--just feel free to come back to this thread and leave me your questions. I may not be online right then, but I will get back to you within 24 hours.
LADYLAWYER : Hello! I see you are in the chat. I am online and happy to answer any further questions you might have.
Customer: Hi thank you so much for your answer . So do you think that a portable ahed is considers as making alterations to the property? Bc that is their case and point for the 3 day notice. If we don't remove the add, how soon can they evict us if they are in their right? Will this cost us money to go to court? Do you advice to break down he shed? Wether the yard is considered common or not, does it matter if the portable shed is related to making " alterations " to a property? We are anxious for Monday. He is becomin ( landlord) more and more to pester us. This Morning he was repeating my son"s words aloud. Hopefully you can respond before Monday. Thank you so much I will definitely give the highest rating.
LADYLAWYER : No, in real estate law, as long as the structure is not a permanent attachment to the property, then they wouldn't have an argument.
LADYLAWYER : At the end of 3 days, the landlord can file the eviction action.
LADYLAWYER : You will have 5 days from the time you are served with the complaint to answer it and countersue. This should help you: http://www.courts.ca.gov/partners/documents/UD.pdf
LADYLAWYER : The Defenses and counterclaims I mentioned earlier can and should be used too.
LADYLAWYER : Technically, in California, a defendant may not bring a counterclaim to an eviction action. Staudigl v Harper (1946) 76 CA2d 439, 173 P2d 343. The policy behind this rule is that eviction actions are summary proceedings and cross actions would slow them down. Translated this means that evictions move very fast in California and litigating the claims of the defendant-renter would only delay their eviction. This is true even if the defendant’s claims are valid and provable. Therefore, when I say "countersue", I really mean brining a brand new lawsuit altogether. This means that you would have to draft and file a new lawsuit, have proper legal service of the new suit on the landlord and pursue it even if you are being evicted by the sheriff at the same time, which can happen because eviction suits are litigated so much faster than other lawsuits. The only other option for you is the equally unattractive, actually moving out of the rental property. Once a defendant-renter moves out the eviction case is converted into a regular breach of contract action and then a cross action can be asserted. D'Amico v Riedel (1949) 95 CA2d 6, 212 P2d 52.
LADYLAWYER : All that being said, I do not think the landlord will be successful in his eviction action against you. So unless you move out and have the eviction changed to a breach of contract case where you can actually file a counterclaim, then you will have to file your own lawsuit against the landlord if he damages your property. This does cost money and it is different for different counties. You mentioned you were in SM, so the fees to file a small claims lawsuit there can be anywhere from $30-$75 plus the cost of having the landlord served, which is usually around $25.
LADYLAWYER : As far as just defending yourself against the eviction lawsuit--not filing your own lawsuit--it will not cost you any money to do. If you get served and you do not file an answer or show up to court, the judge will enter a default against you and you will automatically be evicted. So you want to make sure you do what they court papers say and defend yourself.
LADYLAWYER : With regard to the shed...I do think he will try to evict you if you don't break it down. If it's less hassle to break down the shed than facing an eviction lawsuit for you, then I would break it down. If you want to fight, I think the law is on your side, but nothing is ever guaranteed when it comes to court.
LADYLAWYER : Any more questions, please let me know. Thanks!
Customer: thank you so much.is it possible for us to use the "defective notice" , because lndlord states; we violated clause 12: tenant needs to ask for written consent prior to making alterations to the property[ the portabele shed is loose from the house];we violated clause 13, which prohibits tenant from committing waste, by damaging grass and garden [the yard is same as when we moved in, if not better]; and we violated terms of the lease by re-keying the property without prior consent[ we have not done this].
Customer: If we claim defective notice, what do we need to do, and how will this proceed? Thank you so much
LADYLAWYER : No, you cannot use defective notice if you're trying to say the notice is defective because what the landlord is claiming is untrue. A defective notice in the legal sense means it is defective on its face (e.g., it was not served properly, it does not contain the proper language, the landlord filed the lawsuit before the full 3 days was up, etc.).
LADYLAWYER : In any case, defective notice is an affirmative defense you would claim in your Answer only AFTER the landlord filed the lawsuit against you. You basically just have to wait and see if that is going to happen or not, and then you will set forth your legal arguments and defenses in our Answer to the lawsuit.
Customer: Last question:we reMoved the shed...
Customer: Do we still need to do anything else in writing bc they gave us 3 day noticr for damaging grass and replacing key and shed? Or can we leave it like this? Any recommendatios for filing haressment?
As I mentioned before, you can't sue for harassment in in landlord/tenant dispute, but you can use harassment as a defense if you get sued OR you can file for an Order Against Civil Harassment, which is bascially CA's version of a non-domestic restraining order. You would just go down to your local county court house and fill out the forms for that.
There is nothing else you can really do at this point if the landlord is claiming you re-keyed the locks. If he is going to sue you for that, you will just have to defend yourself when the time comes.
Same with the yard. Take some pictures with a time stamp on them of the yard and the damages he is claiming so he cannot go wrecking the yard and saying you did it.