Legal Question in Real Estate Law in California

In 2007 I moved into my mothers house due to ill health. She still owned it but lost it to foreclosure in Nov 2007 and rented it from the new owner. We comingled funds in my bank account and between both of us paid the rent-I signed all the checks. The roof began to leak so we alerted the landlord but he told us it would have to wait until the following summer-this went on until her death in 2013. Six long wet moldy years. The landlord then wanted to evict me because I could not pay all the rent three days after her death. The bank account had been frozen for 45 days. He served me a ud and as the process went on I requested a jury trial so that I could show a jury the house damage from the water and mold. The landlords attorney received a partial summary judgement, What can I do. One of the leaking rooms was my bedroom and i had to sleep on the floor in the only dry area there was- a corner. Do I have any recourse or does the landlord get away with charging a huge amount of money for a rental that a large area of which we were forced to deal with tons of water and mold. Can I stop my eviction in court. Alameda county, ca

Asked on 7/05/13, 6:26 pm

1 Answer from Attorneys

Anthony Roach Law Office of Anthony A. Roach

Habitability issues do not stop an eviction. They merely change the landscape in which an unlawful detainer action is tried.

If the tenant raises the defense, the court must determine whether a substantial breach has occurred. (Code Civ. Proc., §1174.2, subd. (a).) If the court finds proof of a substantial breach, it must (1) reduce the rent to reflect the breach, (2) give the tenant the right to possession conditioned on the tenant’s payment of the reduced rent, (3) order the landlord to make the repairs and correct the conditions that constitute the breach, (4) order that the rent is to remain reduced until the repairs are made, and (5) award costs and attorneys’ fees to the tenant if permitted by statute or the parties’ rental agreement.

If the court determines that there has been no substantial breach of CC §1941 or the warranty of habitability, the landlord is entitled to possession and judgment in its favor. (Code Civ. Proc., § 1174.2, subd. (b).)

Once the tenant pays the adjusted rent within five days (or ten days including five-calendar day extension under CCP §1013(a) if notice of judgment is given by mail), the tenant is the prevailing party in the suit and retains possession. (Code Civ. Proc., § 1174.2, subd. (a)(2).) If the tenant does not pay the adjusted rent within the five days allowed, the landlord is the prevailing party and is entitled to judgment and possession. (Code Civ. Proc. § 1174.2, subd. (a).)

The fact that you lived in the house prior to the new owner having it tends to make your habitability claim a bit suspect, as this appears to be an issue that you are raising just to delay an eviction and to justify nonpayment of rent.

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Answered on 7/09/13, 12:19 pm

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