by Kevin Hermansen, Esq.

People get eviction notices all the time for a variety of reasons. If you get one, don’t worry — but understand that you’re in a complex legal situation and take the right steps to fight back.

Although it might feel like it, evictions are not always the tenant’s fault. They often arise because of unlawful behavior by landlords or property owners.

For example, landlords may decide they don’t want to repair their rental units. When tenants object and refuse to pay for their damaged or substandard housing, they get served evictions. Another scenario plays out in jurisdictions that have rent control ordinances. The longest-residing tenants of buildings cost landlords thousands of dollars each year — evicting them means new tenants can be brought in and charged more. And sometimes conflicts are personal: unprofessional landlords sometimes hold grudges, and they may try to get tenants out by claiming minor or technical lease violations.

Whatever the case may be, tenants have legal rights and options for representation. Unfortunately, sometimes they don’t take advantage of these rights. It can be a shock finding out your home is at risk — and that there’s a limited time to file a written response and get your day in court.

Unlike small claims cases, evictions — known as “unlawful detainers” in legalese — are complicated civil actions that require parties to understand the rules of civil procedure and evidence. Simply filing a written response and waiting for trial sets cases up for failure. In between the response and trial is the critical discovery period, in which parties can compel the other side to answer questions and produce documents under oath to be used as evidence at trial. Parties can also request depositions, requiring their opponents to come to an office to answer questions for up to seven hours.

Doing any of this effectively requires an attorney with the necessary skill and experience to draft questions, hold depositions and compel the other side to answer or appear if they refuse. A lot of it is technical. Failure to use proper formatting, paper or wording can cause a tenant to lose before the case ever makes it to trial.
There’s an additional problem with the file-and-wait approach. Even if a tenant gets through discovery and makes it to trial, they are required to conduct that trial with the same level of expertise as an attorney. This means photographs, letters, e-mails and text messages could be excluded from evidence if the right words are not used, or if they are not submitted in the proper format.

In California, tenants facing eviction have a right to a jury trial. However, when they fail to properly request one, cases are often decided by judges instead. This means the cases are decided by people who have seen and heard it all before. They are unlikely to be as sympathetic as juries. Some judges are property owners or landlords themselves. And even those who are well-meaning can’t simply do what’s fair or right — they are bound by established law, including rules of civil procedure and admissible evidence. As a result, one side wins and the other side loses — there is no in-between.

From my experience, In cases where a tenant does not have an attorney, the judge is more likely to believe a landlord who does. (It’s similar to traffic court, where it’s almost impossible to win against a police officer who has been there many times more than a person getting the ticket.)

Having a lawyer makes all the difference. Lawyers can use the discovery period effectively to get answers and documents. Lawyers are able to demand and prepare for jury trials. With a jury trial, a case will no longer decided by a potentially unsympathetic judge. It will be decided by other members of the tenant’s community, at least some of whom are likely to be tenants themselves. Sometimes, the mere possibility that a case will go to a jury causes landlords to dismiss cases or settle out of court.

Almost every landlord understands how important it is to have attorneys to handle these complex cases. So should tenants. Organizations like BASTA regularly handle these cases and win. We know the system, law and procedures that must be used in court. For as little as $800, you can let experts lead the way. (Your landlord can even be forced to pay those fees if they’re found to be in the wrong.) In a city where median rent for a two-bedroom apartment is over $1,700 per month, that’s a relatively small amount to invest. And you may end up getting a settlement worth thousands more.

Perhaps just as importantly, having legal representation means you don’t have to deal with the stress of an eviction yourself. Eviction defense lawyers understand how tough it is to face a powerful land owner with your home at stake, and we’re ready to help. Don’t go it alone.

Kevin Hermansen is an attorney with BASTA. The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of BASTA, the courts or any government agency.

 

Published by David Colgan