31 March 2007
By way of background, after a landlord (plaintiff) serves an unlawful detainer summons and complaint, the tenant (defendant) typically has five days to file an answer (including Saturdays and Sundays). A state Judicial Council form permits the tenant to deny the statements in the complaint in whole or in part and it also permits the tenant to assert one or more of several possible affirmative defenses, including a breach of warranty of habitability.
The sponsor of the measure argues that tenants allege every affirmative defense and this type of “shot gun” approach is unacceptable. The Judicial Counsel form, which provides a list of affirmative defenses with a corresponding box to check, aids tenants and when a box is checked, the tenant “must state brief facts in support in the space provided”. The form provides for space to write a short paragraph and the tenant is instructed that he or she may continue the statement in a separate attachment.
The sponsor is willing to give all tenants the right to file a “general denial” in “trade” of requiring those tenants who assert an affirmative defense of breach of warranty of habitability in response to an unlawful detainer based on nonpayment to do all of the following: 1) describe with particularity each violation alleged; 2) state whether notice of the alleged breach was provided prior to the proceeding and, if so, whether the notice was written or verbal and to whom notice was provided; state the date on which prior notice, if any, was provided, and attach a copy of the notice to the pleading; and 4) attach declaration to the pleading stating under penalty of perjury that the past due rent at issue in the proceeding is available for immediate transmittal.
Arguments in support of the bill are few. The sponsors properly observe that landlords may not be aware of a habitability claim until the UD hearing. According to this argument, landlords are barred from inspecting units and a tenant is not required to give prior written notice of substandard conditions or give the landlord time to make repairs in order to make an affirmative defense of breach of habitability. They assert that it should be a matter of public record that demonstrates the extent to which property owners have or have not responded to habitability claims. Sponsors argue that the changes in law would result in fewer frivolous defenses.
Arguments in opposition are bountiful and will likely persuade the Legislature to stop forward progress of the bill this year. From other landlord associations, including the Apartment Association, California Southern Cities the “trade” where landlords give up an area of law to benefit tenants in another related area of law, comes at too great of an expense. Few tenants assert habitability claims. And most every tenant that pays rent of $1000.00 or less who chooses to answer to an unlawful detainer summons and complaint files a general denial. If we blow this area of law wide open the tenants will enjoy a vast benefit to our marginal gain.
Tenants should successfully argue that describing “with particularity each ( habitability) violation alleged” when answering a UD summons and complaint will invite new litigation because it will not be clear how much more information must be provided in the answer. Tenant groups will also argue that the law should not require statements pertaining to any prior written notice that were given to the landlord about the habitability problem. They argue that the notice is not properly pleaded and it is immaterial and is not required to make a defense. Finally, tenants will take strong objection to the proposal to swear that the rent at issue is available for immediate transmittal. They will note that that issue is to be set by the judge depending on which side prevails at the hearing.
What do we make of this bill? More than likely, the bill will not receive sufficient votes to be approved by the Assembly Judiciary this year. But, more importantly, tenants have found a new bill to sponsor next year, as a result of AB 481. The bill will be to amend existing law to allow for a general denial for an unlawful detainer case where the claim is for the non payment of rent of at least $2500.00. We can thank the sponsors for a bill that should be introduced by tenants groups next year.