In the tenant law area, I represent tenant plaintiffs in cases involving serious habitability, discrimination, harassment or injury issues. I generally defend evictions only in connection with affirmative suits for damages. I don’t represent landlords in tenant/landlord cases.
Good landlords never hear from me. If they charge fair rents, take care of their property, and treat their tenants square, it’s very unlikely that they’ll ever go crossways with a tenant lawyer. Virtually all tenant lawsuits are brought against a small minority of bad landlords.
Most of the phone calls that come into my office from tenants involve evictions. Many of the callers have heartbreaking stories of lost jobs, callous landlords, stonefaced banks, innocent children, and no place to go. It hurts to say “no” to them, but in most cases there is nothing I can do. I do too much pro bono work already, including cases that weren’t meant to be pro bono, but end up that way. I have bills to pay and I need to get paid for the hours I put in. Most tenants get into eviction trouble because they can’t pay the rent, and if they can’t pay the rent, they can’t pay an attorney.
Quite a few tenants — I just finished speaking with one — call an attorney for the first time on the night before their trial date. They’re surprised and disappointed that an attorney can’t be there at their side the next morning. The reality is this. Alameda County is blessed with one of the largest contingents of tenant lawyers in the country. But every one of these lawyers is swamped with work and booked up weeks or months ahead of time.
Fortunately, there are a few nonprofit agencies that may be able to help the poverty-stricken tenant facing eviction. A short list of these agencies is below.
If I take a residential eviction case, it’s generally because one or more of the following conditions is true:
- The tenant has the rent money but is deliberately withholding it to force the landlord to make repairs
- The tenant is paying the rent but the landlord is trying to evict the tenant because the tenant asked for repairs or contacted a city inspector
- The tenant is paying the rent but the landlord is sending eviction notices or commencing eviction to harass the tenant on racial, national, religious, or sexual grounds
- The tenant is paying the rent but the landlord wants the tenant out in order to sell the property vacant
- A lawsuit has already been filed against the landlord on grounds of habitability, harassment, discrimination or injury, and the landlord is retaliating
If one or more of these conditions applies, it means that the tenant may have grounds for an affirmative suit against the landlord for monetary damages. In that event, if I represent the client in the affirmative suit, I will generally also represent the client in the eviction. I will keep track of my hours spent on the eviction and charge them against the client’s recovery in the affirmative suit. I will usually take the affirmative suit on a contingency basis, like a personal injury lawsuit.
If the landlord has failed to make the payments and the bank is foreclosing:
- In Oakland, Berkeley, San Francisco, and some other cities that have just-cause for eviction laws, the bank cannot evict you when it forecloses.
- If a new owner buys the property at a foreclosure sale as an investment, he or she still cannot evict you.
- The new owner can evict you only if he or she (or a close family member) genuinely intends to make the property his/her primary residence.
- In cities that have no just-cause protection, you may be able to negotiate a modest amount of cash-for-keys to save the bank the trouble of bringing an eviction proceeding.
- If the bank cuts off the utilities with the intent of getting you out, you may have a lawsuit under the “anti-lockout” laws.
Here are some pointers if you think you have a habitability lawsuit:
- The conditions need to be serious. For example, faded paint alone won’t do it, but paint that’s peeling and falling where children could eat it, or paint that’s bubbling and cracking from water leaks, or paint that’s covered with persistent black mold, might make a case. Broken heaters are serious. Infestations of roaches, spiders, fleas, mice, rats are serious. Shoddy electrical work that poses a danger of fire or electrocution is serious. I’ll try to post a picture gallery of serious conditions when I get time.
- The conditions need to be documented. Clear, sharp photographs with dates are essential. Most local cities have housing inspectors who will come, look, and write up a report on conditions they see. There are private inspectors, such as Claudio Bluer, who are experts at reporting and evaluating code violations. The conditions need to be documented before you leave the premises.
- The conditions need to be not your fault.
- You need to have evidence that you notified the landlord of the conditions, or that the landlord or his hired people saw them, and failed to act on them.
- You need to be at least an average housekeeper. I’ve seen apartments where conditions under the landlord’s control were horrible, but conditions under the tenant’s control were just as bad. If the landlord can answer your photographs of rats and roaches with his photographs of your garbage strewn across the floor, you will lose the case.
- You can make your case stronger by joining together with other tenants in the building. In a multi-unit building, defective conditions are rarely confined to a single unit. Your case will be much more powerful and your reward will be greater if you can bring the suit as a group. If you have enough people in a large building, we may be able to bring it as a class action.
Here are some pointers if you think you have a discrimination lawsuit:
- It’s next to impossible to win a discrimination case today based on inference. You need a smoking gun, such as the landlord’s use of the n-word or other insult against you because of who you are, or who the landlord thinks you are. And you need at least one unbiased witness who will testify under penalty of perjury to hearing the insult. For example, in the 1200 Lakeshore class action, the building manager testified under oath in his deposition that the building owner had instructed him to “get rid of the black people, get rid of the old people.”
- You need to show that the landlord’s discriminatory action damaged you in some way. For example, you suffered severe emotional distress, you were exposed to dust and noise, you lost sleep, you were forced to move, or you lost your job. In an employment case, my client’s emotional pain from a racial insult caused her to have a heart attack and to become permanently disabled from work. That’s an extremely serious consequence, and it made for a major settlement. But if the landlord’s words or actions didn’t ruffle your feathers, your case may not be worth bringing.
If you’ve been injured as a result of defective conditions on the premises — the rotten stairs broke under you, the ceiling fell in on your head — see the Personal Injury section of this website.
If you think you have a mold case, please note:
- It isn’t enough to photograph the mold. Not only the mold itself but preferably also the air inside the apartment needs to be tested by a mold lab that will identify the exact micro-organisms involved. Some molds are more dangerous than others.
- If you think you have suffered lung damage, headaches, or other illness as a result of the mold, you absolutely must get a physician to say so in writing, in your medical chart. Your personal conviction that the mold made you ill, without a doctor’s written diagnosis, will get you no place in court.
- I no longer take asbestos cases. You need to consult attorneys who specialize in that material.
Tenants also may have other rights that can be addressed in a lawsuit. I’ve represented a number of tenants in lockout cases — cases where the landlord does a self-help eviction, or shuts off utilities, without going through the legal process.
Some landlords repeatedly gouge tenants out of their security deposits. While individual security deposit cases usually belong in Small Claims Court, landlords who have a pattern and practice of deposit fraud can be sued in Superior Court.
Some landlords knowingly permit drug dealing and prostitution in their rental properties — the suspicion is that they take a percentage of the business — and this can sometimes be stopped through a lawsuit.
Occasionally, landlords permit a favored tenant to make constant noise that ruins your sleep; courts have sometimes given relief in such cases.
Some landlords don’t respect a tenant’s disability and make no reasonable accommodation for it; that can be a case.
If the landlord knows that the locks are defective, or the lighting is broken, or there is a homicidal tenant, or there are other unaddressed security issues, and as a direct result someone robs you or injures you, you probably have a case.
Even if you haven’t personally been injured, you may have a case. Two young women once came to me, saying that when they rented the apartment, the landlord told them the building was safe and there had been no problems. They had noticed a large faded brown stain on the rug but gave it no thought. Then they learned from a neighbor that the previous tenant, a young woman, had been raped and stabbed to death in the apartment, and the brown stain was her blood. That case settled very quickly.
Here are some red flags that usually lead me to decline a case:
- One roommate is upset with and wants to sue another roommate.
- Landlord and tenant are family members, or are BF/GF, or exes.
- Another attorney originally had the case but wants out.
- Tenant is not interested in money damages but just wants to ‘get even.’
- Tenant is habitually drunk, uses drugs, or is involved in illegal activity.
- Tenant has paid rent in cash and got no receipts or lost the receipts.
- Tenant has a good story but the facts occurred months ago.
- Tenant has no paperwork or photographs, but relies entirely on “he said, she said.”
- Landlord has no insurance, is bankrupt, or cannot be found.
All the tenant cases I’ve been involved in are in the East Bay, mostly Oakland, Berkeley, Walnut Creek and Concord. If your case is farther away, I probably won’t be able to help you, unless it’s a major multi-tenant case with serious damages. Most of my cases have been residential; if you have a commercial case, we can talk.
I see my tenant work basically as urban dentistry. Tenant lawyers get called when the urban smile develops a rotten pocket. We drill and scrape, and when we’re done, a bad building generally gets repaired, and sometimes a bad owner gets extracted. If there were no decaying buildings and rotten owners, tenant lawyers would be out of business. I’ll celebrate the day when that happens, but I’m not holding my breath.
Nonprofit Agencies in the East Bay that may be able to help the tenant who has no funds to hire a lawyer:
Eviction Defense Center
1611 Telegraph Avenue Ste. 726
Oakland, CA 94612
Housing Rights, Inc.
1966 San Pablo Avenue
Housing Rights has satellite offices in Antioch and Concord
Project Sentinel also has offices in Modesto, Palo Alto, Sunnyvale, Gilroy, and San Jose
Bay Area Legal Aid
1735 Telegraph Avenue
Oakland, CA 94612
BayLegal also has offices or advocacy sites in Richmond, Antioch, Concord, and Pittsburg, as well as in neighboring counties