A tenant has a complete defense to an eviction case in California if the landlord’s intent for the eviction is retaliatory. A tenant eviction in California is considered retaliatory if the eviction is intended to punish the tenant because the tenant committed a legal act.
The tenant has an affirmative defense to an eviction based on retaliation if evicted within 180 days after the tenant does any the following acts:
- If the tenant is evicted within 180 days after the tenant gives notice to the landlord to “repair and deduct;”
- If the tenant is evicted within 180 days after the tenant complains to the landlord about the habitability of the premises;
- If the tenant is evicted within 180 days after making a good faith complaint to a housing agency, provided that the landlord was given notice;
- If the tenant is evicted within 180 days after a housing agency makes an inspection or issues a citation that was the result of the tenant’s complaint;
- If the tenant is evicted within 180 days after the tenant takes legal action regarding habitability;
- If the tenant is evicted within 180 days after the tenant wins a habitability claim against the landlord.
The 180 day period for a retaliatory eviction starts from the latest applicable date referred to above. A tenant may only exercise the retaliatory eviction defense once every 12 months. Furthermore, the retaliation defense is only available if the tenant is current in their rent.
The tenant has the initial burden of proving the retaliatory motive for the eviction. To meet the burden of a retaliatory eviction under one of the above reasons, the tenant must be able to show that the tenant either repaired or deducted or complained to a government agency, or sued/obtained judgment against the landlord regarding a habitability issue. The tenant must also show that the landlord terminated the eviction before expiration of the 180 day period. Finally, the tenant must prove that they are not behind in their rent.
Once the tenant meets the burden of showing a retaliatory motive, the burden shifts to the landlord to show that the eviction was not based on a retaliatory motive. The landlord can still evict for a “good faith” reason. It is good practice for the landlord to state the reason for the eviction in the termination notice, even if not required to do so by statute.
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