Retaliatory Actions, Evictions And Discrimination
A landlord may try to evict a tenant because the tenant has exercised a legal right (for example, using the repair and deduct remedy, (see Having Repairs Made) or has complained about a problem in the rental unit. Or, the landlord may raise the tenant's rent or otherwise seek to punish the tenant for complaining or lawfully exercising a tenant right.
In either situation, the landlord's action is said to be retaliatory because the landlord is punishing the tenant for the tenant's exercise of a legal right. The law offers tenants protection from retaliatory eviction and other retaliatory acts.338
The law infers (assumes) that the landlord has a retaliatory motive if the landlord seeks to evict the tenant (or takes other retaliatory action) within six months after the tenant has exercised any of the following tenant rights:339
- Using the repair and deduct remedy, or telling the landlord that the tenant will use the repair and deduct remedy.
- Complaining about the condition of the rental unit to the landlord, or to an appropriate public agency after giving the landlord notice.
- Filing a lawsuit or beginning arbitration based on the condition of the rental unit.
- Causing an appropriate public agency to inspect the rental unit or to issue a citation to the landlord.
In order for the tenant to defend against eviction on the basis of retaliation, the tenant must prove that he or she exercised one or more of these rights within the six-month period, that the tenant's rent is current, and that the tenant has not used the defense of retaliation more than once in the past 12 months. If the tenant produces all of this evidence, then the landlord must produce evidence that he or she did not have a retaliatory motive.340 Even if the landlord proves that he or she has a valid reason for the eviction, the tenant can prove retaliation by showing that the landlord's effort to evict the tenant is not in good faith.341 If both sides produce the necessary evidence, the judge or jury then must decide whether the landlord's action was retaliatory or was based on a valid reason.
A tenant can also assert retaliation as a defense to eviction if the tenant has lawfully organized or participated in a tenants' organization or protest, or has lawfully exercised any other legal right. In these circumstances, the tenant must prove that he or she engaged in the protected activity, and that the landlord’s conduct was retaliatory.342
If you feel that your landlord has retaliated against you because of an action that you've properly taken against your landlord, talk with an attorney or legal aid organization. An attorney also may be able to advise you about other defenses.
A landlord, managing agent, real estate broker, or salesperson violates California's Fair Employment and Housing Act by harassing, evicting, or otherwise discriminating against a person in the sale or renting of housing when the "dominant purpose" is to retaliate against a person who has done any of the following:343
- Opposed practices that are unlawful under the Act;
- Informed law enforcement officials of practices that the person believes are unlawful under the Act; or
- Aided or encouraged a person to exercise rights protected by the Act.
A tenant who can prove that the landlord's eviction action is based on a discriminatory motive has a defense to the unlawful detainer action. A tenant who is the victim of retaliatory discrimination also has a cause of action for damages under the Fair Employment and Housing Act.344
338 Civil Code Section 1942.5.
339 Civil Code Section 1942.5.
340 Civil Code Section 1945.2 (a),(b); see California Practice Guide, Landlord-Tenant, Paragraphs 7:368-7:380 (Rutter Group 2011).
341 Moskovitz et al., California Landlord-Tenant Practice, Section 12.38 (Cal. Cont. Ed. Bar 2011).
342 Civil Code Section 1942.5(c).
343 Government Code Section 12955(f), 12955.7.
344California Practice Guide, Landlord-Tenant, Paragraphs 7:205, 7:391-7:394 (Rutter Group 2011).