This article was posted on Friday, Nov 01, 2013

 My tenant reported me to the city for multiple code violations without even notifying me of them first.  I was frustrated that I received the code violation notices from the city and was not given an opportunity to address the violations.  I am worried the tenant might do this again, so I want to give him a notice to quit.  Can I do that?

You should not serve the tenant with a notice to quit because it may be viewed as a retaliatory act.  Your tenant has the right to complain to you or to an appropriate governmental agency about the condition of his rental unit.  In fact, the law will protect your tenant if he files a complaint with a government agency without first notifying you.  Legally your tenant was within his rights to do what he did.  If you serve him with a notice to quit right after he complains to the city for the code violations he would have a strong argument that you are only serving him with the notice to quit because he complained to the city about the rental unit.  If you are worried the tenant might complain to the city again without informing you, it would be good to go speak to the tenant and let him know that he can always come to you with complaints and that you will do your best to address them as soon as possible.

My tenant complained seven months ago that there were cockroaches in his rental unit.  I reluctantly called an exterminator because I knew the cockroaches came into the unit because of the constant mess left by the tenant.  I served the tenant with a termination notice today; can he claim I am retaliating against him because he complained about the cockroaches?

Most likely no.  Retaliatory conduct by the landlord less than 180 days after the tenant’s action automatically raises a legal presumption of retaliation.  In other words, if you attempt to terminate the tenancy less than six months after the tenant complained about the cockroaches, there is a legal presumption that you are only ending the tenancy because the tenant complained about the cockroaches.  However, if you wait at least six months before you terminate the tenancy that legal presumption no longer arises automatically.  The tenant can still claim you are retaliating, but it would be much harder to prove in court than if you had served him with a termination notice a month after he complained.  Please remember that your tenant has a legal right to complain to you about habitability issues such as cockroaches, and you should try to address them.  If you know the tenant is causing the issues try to remind him of his duties under the rental agreement to keep the unit clean, and then address the issues as is reasonable.

My tenant is two months behind on his rent.  I served him with a three day notice to pay rent or quit.  Since I served him with the notice he hasn’t paid the rent and now he’s complaining there are a lot of longstanding issues in the apartment that he never complained about before.  Can he say I served him with the notice to pay rent or quit in retaliation?

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No. If you attempt to evict a tenant based on nonpayment of rent, retaliatory eviction is not a defense to the tenant’s failure to pay the rent.  In this situation, the tenant failed to perform his duty under your rental agreement, that is, to pay his rent.  You are evicting him because he did not pay, not because he complained about the unit after you started the eviction process.  Keep in mind that you should still address his complaints if they are valid as you still have a duty to him as a tenant, even while you are evicting him.

I have a tenant that just moved in and has been asking for accommodations for her son because she claims he is disabled.  I don’t think her requests are reasonable; can I just serve her with a notice so she can move somewhere that already has these accommodations?

Before you serve her with a notice to quit you should work with her first to see if an accommodation is possible.  As a landlord, when you receive a request for accommodations you are obligated to engage in an interactive process to determine whether a request for accommodation is necessary to afford the tenant with an equal opportunity to use and enjoy her housing.  When working with the tenant to determine if accommodations are necessary, take care to avoid asking too personal of questions or seeking too much private information from the tenant.   If after engaging in an interactive process with the tenant you determine that an accommodation is not feasible, or your attempt to accommodate fails, then you may have no further obligation to try and accommodate the tenant.  However, you should only serve the tenant with a termination notice if you can show a Court that no accommodation would have solved the tenant’s problems and the tenant cannot show that her requested accommodation was reasonable.

Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 20 years.  He is also an adjunct law professor at the University of San Diego.  Mr. Simone’s office is open Monday- Friday from 8:00 AM to 4:00 PM.  Walk-in’s welcome from 1:00 to 4:00 PM only – no appointment necessary.  Tel: 619-235-6180, website: or email [email protected].



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