This article was posted on Sunday, Sep 01, 2013

The eviction landscape has changed over the past two to three years. Due in large part to an increased number of tenant attorneys, jury trial demands, court closures and staff layoffs, evictions are costing landlords more money and taking longer than usual to resolve. Tenants and their attorneys attempt to force landlords into settlements on less than favorable terms (sometimes including waiver of the money owed and an inordinate amount of time to vacate), or into dismissing the case entirely. While many of the attorneys are fairly simple to deal with, some seem to intentionally make an unlawful detainer action as slow and painful for landlords as possible.

Many of my clients have asked me for suggestions on what can be done to diminish the effects of this situation, regain possession of their rental unit as fast as possible, and minimize the possibility of having to deal with the costs and time of a jury trial. The answer is relatively simple: be proactive and implement policies and procedures that are forward looking and can be used to your advantage in the event of an eviction. The rest of this article will focus on a few of the many proactive and preventative strategies that can be utilized to give a landlord the upper hand both during the tenancy and in the event it becomes necessary to file an eviction. The principals behind the strategies can be used to develop additional practices and procedures that will give a landlord the edge in court should an eviction become inevitable.

Let’s start by looking at what can be done proactively to avoid an eviction before a tenancy even exists. Most landlords already know that a thorough tenant screening policy is the best tool available for avoiding evictions before they occur. If you haven’t attended one of AOA’s screening seminars, or you are not yet using their screening and background check services, I strongly encourage you to do so. Thorough screening policies and procedures will weed out most of the troublesome applicants before they ever have an opportunity to cause you headaches. But the key to making your screening procedures work is to be extremely diligent in your follow up. It isn’t enough to have your applicants complete the application and pay the screening fee. Landlords have to follow through with their commitment to calling all of the numbers listed on the application, asking the right questions, and digging a little deeper than the application itself. Visiting the applicant at their current residence one evening (to determine how your unit will look in about three months) or notifying the applicant in advance that you will be taking pictures of them in the event they are accepted as a tenant are just a couple of examples where going a little deeper can save you time and money associated with an eviction down the road.

What about actions that can be put into practice during the tenancy? What can a landlord do during that time that will help him or her once an eviction becomes inevitable? Let’s start by offering a few proactive strategies that can be used to preemptively minimize a tenant’s ability to use bogus claims as defenses to an eviction. Specifically, let’s look at the most common affirmative defense to an eviction for non-payment of rent – breach of warranty of habitability.

Breach of Warranty of Habitability

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Any landlord that has gone through an eviction for non-payment of rent knows that the most common defense raised by a tenant is habitability. Generally, the tenant will claim that they notified the landlord or the landlord’s manager about various problems in their unit, but the problem was either ignored or half-heartedly addressed, and that is why they “withheld” their rent. We all know that in the vast majority of cases, landlords not “ignore” habitability issues in their units. If they are made aware of the situation, most landlords remedy the problem right away. But that doesn’t stop tenants (or their attorneys) from raising the defense, demanding a jury trial, and launching discovery at the landlord in an attempt to scare the landlord into settling on unfavorable terms.

So what, if anything, can a landlord do, proactively, to give himself or herself an advantage when it comes time to litigate? Below are just two examples of proactive behavior that can give a landlord a negotiation edge in court when habitability has been raised as an affirmative defense.

What Can a Landlord Do?

First, establish the condition of the unit at the outset of the tenancy. While many landlords use the usual “move-in inspection sheet”, I suggest taking it a step farther by creating a visual impression of the unit that can be used in court. The easiest way to do that is to take pictures of every room in the empty unit the day before conducting the move-in inspection. Simply by going room to room with the date and time stamp feature of the camera turned on, a landlord can photograph the condition of the entire unit a day before the tenant takes possession, print the pictures out in color, and bring them to the move-in inspection. As they walk the unit, from room to room, the landlord can simply ask the tenant to sign and date the back of the picture representing the specific room they just inspected. By establishing the unit was in a “habitable condition” on the day the tenant took possession, it makes it that much easier for a landlord to convince a judge or jury that the tenant took possession of a clean unit fit for living, and any habitability issues that might exist are the direct result of the tenant and the tenant’s failure to maintain the unit and notify the owner of necessary repairs.

Another proactive approach that can be utilized by landlords to prevent bogus habitability claims from slowing down their evictions is to provide, as part of the lease or rental agreement, clear and easy to follow written procedures for tenants to follow when reporting a maintenance problem or requesting repairs. The procedure should include a written request form to be completed by the tenant and submitted to management. Have the tenant initial next to that specific provision dealing with the specific procedures for maintenance or repair requests to indicate they read and understood it. Landlords (or their managers) should also maintain a written log book of oral complaints or maintenance requests. The complete absence of written requests, coupled with a written log of oral complaints from other tenants, but none from the tenant in eviction, will give the landlord negotiating strength in court, as the tenant’s attorney will recognize that the landlord’s diligence and business records present an uphill battle for the tenant’s case.

Yet, one more proactive approach that can be used is to provide, as part of the maintenance and repair procedures, a “Maintenance Checklist/Questionnaire” to all tenants of the building on a quarterly or semi-annual basis. Each tenant is required to complete the checklist, indicating either that the unit requires specific repairs or maintenance, or that the unit is in a habitable condition and does not need any repairs or maintenance.

Whether done quarterly or semi-annually, the goal is to continually establish the condition of the unit as “habitable” throughout the tenancy. The shorter the duration between the checklists the better for the landlord in court, as it will establish that as of the date of the last checklist, the tenant themselves indicated the unit was fit for living and had no maintenance or repair issues requiring attention.

The list or questionnaire should include various, commonly raised habitability issues in which the tenant checks off items requiring repairs, maintenance, or services. For example, since virtually every tenant facing an eviction claims their unit is infested with roaches and that they have notified the landlord, who refused to do anything about it, the checklist should naturally contain a check box for “roaches, rodents and/or vermin”, in which the tenant can request extermination services. The list should also contain a box that can be checked indicating “no necessary repairs, maintenance, or service needed at this time.” Have a signature block on the bottom and insist it is signed. (Remember, never write on the document yourself, as it could later be claimed that the checklist was completed or altered after the tenant returned it to you or your manager.)

Finally, the Maintenance Checklist/Questionnaire should not be the only proactive measure taken by landlord to establish the condition of their rental units. Whether it is due to a lack of conscientiousness, apathy about the condition of their living environment, embarrassment, or simply a cultural divide on habitability issues, tenants will often fail to tell the landlord about conditions in their unit requiring attention; that is, until they fall behind in their rent and are served with a three day notice to pay or quit.

Landlords can handle that situation by conducting a semi-annual or annual “Safety Inspection” of the unit, in which they enter the unit for the legitimate reason of checking both the smoke/carbon-monoxide detectors, as well as the overall condition of the unit. (Again, this is something that should be included and initialed by the tenant in the lease or rental agreement.) By conducting a Safety Inspection of the interior and exterior of the unit, landlords will have first-hand knowledge of any habitability issues that might exist but were unknown and/or unreported on the Maintenance Checklist/Questionnaire. Of course, any conditions noticed by the landlord or manager should be dealt with immediately and signed off by the tenant as being completed.

The purpose of the strategies and procedures listed above is not to circumvent the legal parameters of entering a tenant’s unit, but to be as diligent as possible with regard to the condition of the tenant’s unit so that bogus claims of habitability cannot be used to intimidate or extort the landlord should the tenant have to be evicted at some point in the future. As the saying goes, prevention is better than cure. By using the suggestions above, landlords can likely generate enough evidence to establish they acted responsibly with regard to necessary repairs or, alternatively, that they were never informed of a need for repairs,  thereby eliminating the tenant’s ability to use habitability as an effective defense. The result is the same in either situation; it gives the landlord an edge in bargaining power against the tenant.

The bottom line is that the landscape of evictions has changed, requiring an ever greater level of diligence on the part of landlords. Tenants are receiving free, aggressive, legal representation. Their attorneys are knowledgeable, (and some of them skilled) in areas of law that affect your business, and they know how to employ those laws to the advantage of tenant and the detriment of landlords; dragging out the eviction process while costing landlords thousands of dollars in the process, through lost rent, attorney fees, and court costs.

In order to adequately protect themselves, their assets, and their income streams in today’s eviction environment, landlords are required to anticipate the tenants’ arguments well in advance of the eviction and counter them effectively by designing and implementing proactive policies and procedures that have the ability to dismantle a tenant’s defenses before ever even stepping into court.

The foregoing information is presented and intended to address the topic(s) covered above in a general nature, and not as specific legal advice.  Specific situations and their facts should be presented to your attorney for review.  The Brennan Law Firm is one of the premier landlord-tenant law firms in Southern California, representing landlords exclusively in evictions, judgment enforcement, and other landlord-tenant matters. Mr. Brennan is a frequent speaker and contributing author for various landlord publications, and may be reached at (626)294-0500, or toll free at (855)285-2230. Please visit for more information. 

Michael Brennan is speaking at the FREE million dollar trade show and landlording conference in Los Angeles. For more information click here.

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