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Myron Moskovitz Biography

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“Code of Civil Procedure §1161(2) prevents the landlord from claiming rent due more than a year before the service of the 3-day notice. See Fifth & Broadway Partnership v Kimny, Inc. (1980) 102 CA3d 195, 202. An argument could also be made on the ground of laches that it is inequitable for a landlord to wait a full year before demanding overdue rent. That argument was successfully made in Maxwell v Simons (Civ Ct 1973) 353 NYS2d 589, which held that it was unconscionable for a landlord to permit the tenant to fall more than 3 months behind in rent before bringing an unlawful detainer action based on the total arrearage. New York law required the tenant to pay the arrearage within 5 days or return possession. The court held that the landlord could base his eviction action only on the last 3 months' nonpayment of rent and would have to recover the balance in an ordinary action for rent. See also Marriott v Shaw (Civ Ct 1991) 574 NYS2d 477 and Dedvukaj v Mandonado (Civ Ct 1982) 453 NYS2d 965. In California, this reasoning, along with the cases cited above on "equitable" defenses, might be used to attack a 3-day notice to pay or quit demanding more than three months' back rent.”

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“No reported cases indicate whether a breach of an implied covenant of good faith may be raised as a defense to a residential unlawful detainer action [i.e., eviction]. Note, however, that a breach of the implied warranty of habitability may be so raised. See chap 15. It has been argued that the implied covenant of good faith requires a landlord to show just cause to evict a residential tenant. See Bell, Providing Security of Tenure for Residential Tenants: Good Faith as a Limitation on the Landlord's Right to Terminate, 19 Ga L Rev 483 (1985). If the landlord has breached the implied covenant of good faith, the tenant should consider raising that breach as an affirmative defense to the unlawful detainer action. Because the courts have not yet decided whether the covenant of good faith applies in residential unlawful detainer actions, tenants must look to commercial lease cases for law concerning the covenant. Those cases have found an implied covenant. See §§19.20–19.24.”

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“It is long settled in California that a landlord who resorts to self-help [such as removing a tenant's personal belongings and changing the locks, even though the tenant is still in legal possession of the property] instead of invoking the unlawful detainer procedure commits a forcible entry and detainer, and is liable for actual and, sometimes, punitive damages (see Jordan v Talbot (1961) 55 C2d 597), regardless of any lease provision giving the landlord the right to reenter on default (55 C2d at 604) or any lien the landlord may wish to exercise (55 C2d at 609).”

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“If it appears from the face of the [unlawful detainer] complaint that the plaintiff is an improper plaintiff, a demurer will lie. If it is not apparent from the face of the complaint, the issue must generally be raised as an affirmative defense in the answer. The fact that a plaintiff is not a proper plaintiff would appear on the face of the complaint, for example, when • The complaint states that the landlord has sold the property; or • The name of the plaintiff is not the same as the name of the landlord on the lease attached to the complaint, and the plaintiff does not allege that he or she is the successor in interest.”

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“After being served with a notice, tenants sometimes try to avoid being served with the summons in the unlawful detainer action. Occasionally, they ask counsel's advice on whether to do so. Counsel should advise the tenant not to try and duck service for three reasons: •The landlord is likely to catch the tenant at some time and effect service, despite the tenant's efforts to avoid service; •The court might learn of the tenant's efforts to avoid service and, in ruling on various issues, may believe the tenant is a deadbeat; and •If the landlord prevails in the unlawful detainer action and recovers costs, the tenant's actions will have probably increased the costs the tenant will be responsible to pay.”

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“Subletting may create a different problem for the tenant who sublets. Under some [rent control] ordinances, a tenant who sublets for a fixed term (e.g., a 3-month vacation) may not be able to evict the subtenant at the end of the subletting. This situation would arise if only persons with a specified record interest in the property have a right to evict for owner occupancy. The tenant (the seblessor) would not be able to evict the subtenant to reoccupy the premises, because the seblessor is defined as a "landlord" in the ordinance but not as an "owner." (If there is no other cause to evict, the owner-landlord could not evict the subtenant unless he or she planned to occupy the unit.) Counsel representing a subtenant should review the local ordinance to ascertain whether it defines a tenant as the "landlord" of the subtenant or if the definition of "tenant" includes any "subtenant." If so, the subtenant would have all the rights of a tenant under the ordinance. At least one ordinance specifically addresses this problem by providing that any landlord (not just an owner) may evict to recover possession for his or her own occupancy "as a principal residence" if the landlord previously occupied the unit and reserved the right to recover possession under the rental agreement. See Berkeley Mun[icipal] C[ode] §§13.76.040, 13.76.130. See also SF Rent Bd Rules & Regs §6.15C(1), discussed in §17.5. (In San Francisco, a well-informed tenant who is subletting will expressly reserve continued exclusive "possession" of some limited space so that the tenant can immediately enter on returning to the premises. Then, if necessary, and with proper compliance with the regulations, the tenant can evict the subtenant without cause.) It is unclear whether the Berkeley ordinance prohibits a landlord from evicting an unapproved subtenant and recovering possession, especially in light of the Costa-Hawkins Act (see §§17.1A–17.1G). If the landlord may not, then apparently the tenant who sublets may not object to further subletting by the subtenant. Such further subletting might, however, bar the tenant's right to recover possession. Berkeley Mun C §13.76.130 specifies that the right to recover occupancy must be in "an existing rental agreement with the current tenants." (Emphasis added.) A tenant who takes in a roommate by subletting must be distinguished from one who takes in a roommate with the landlord's consent, i.e., a cotenant. The roommate becomes a tenant of the landlord rather than a subtenant of the original tenant. In this situation, the original tenant has no right to evict the roommate. Only the landlord may evict and must have just cause [as defined by the ordinance] to do so if the roommate is found to be a tenant under the local eviction control ordinance.”

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“Some rent control ordinances permit a landlord to evict a tenant in order to rehabilitate a unit. [....] Such evictions are usually conditioned on the landlord's obtaining all necessary permits before the eviction. Some ordinances require that the tenant be given (1) the right to occupy any vacant unit that the same landlord owns within the city, (2) the right to reoccupy the vacated unit on the completion of the rehabilitation work, or (3) a payment to defray the costs of relocation. [....] A landlord who refuses to allow the tenant to reoccupy the vacated unit is subject to liability under the governing ordinance.”

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