Retaliatory eviction is one of the things that often arises when the relationship between a landlord and a tenant in California sours. As you can perhaps guess from the name, the landlord is evicting the tenant in retaliation for something the tenant did. As you should hopefully also be able to guess, the word “retaliation” implies a timeline — the landlord must evict the tenant for something they have already done. In other words, the tenant must do something first and then the landlord must evict them in retaliation. A tenant cannot claim the landlord is evicting them out of retaliation when the eviction came first and the tenant’s action came second. (True story: I once had a case where the tenant tried to do this.)
As usual, this post will just be an overview and will – by no means – be an exhaustive description. Please take a look at the full text of Section 1942.5 yourself or consult an attorney in your area regarding your particular situation. If you are in a commercial landlord-tenant situation, retaliatory eviction under Civil Code 1942.5 does not apply to you, but you may have an equivalent against retaliatory eviction under a 1981 California Supreme Court case called Barela v. Superior Court, 30 Cal.3d 244.
Section 1942.5 of the California Civil Code basically establishes three categories of activity that could qualify as retaliatory eviction. A lot of stuff can qualify as retaliatory eviction, but not everything. In my experience, landlords often overstep their bounds and, for instance, unintentionally put themselves in a position where it appears they evicted a tenant in retaliation. On the flip side, many tenants think that retaliatory eviction includes more than it actually says.
Category 1: Activities under Section 1942.5(a)
The first category consists of the 5 specific acts listed under Section 1942.5(a)(1) to (5). If the landlord evicts the tenant within 180 days of the tenant performing any of these 5 acts and the tenant is not in default of rent, the tenant will have made their prima facie case that the eviction was retaliatory. The burden then shifts to the landlord to produce evidence – if any – showing the eviction was not retaliatory. As always, the ultimate decision is up to the judge.
Other points regarding Category 1 activities under Section 1942.5(a):
- It is not only evictions that are covered. Section 1942.5(a) also covers rental increases and decreases in services.
- Per 1942.5(b), a tenant may only invoke 1942.5(a) once during any 12-month period
Category 2: Activities under Section 1942.5(d)
The second category of prohibited acts is under Section 1942.5(d). Prohibited acts under 1942.5(a) were pretty straightforward (i.e. there was a list of 5 specific prohibited acts). The prohibited acts under 1942.5(d), however, are defined much more broadly. The acts of the tenant for which eviction could be retaliatory under 1942.5(d) are: (1) organizing or participating in a tenant’s rights organization or association, or (2) lawfully and peaceably exercising any rights under the law. As you can perhaps guess, the tenant lawfully and peaceably exercising any rights under the law can include quite a bit.
Under 1942.5(a), the tenant only needed to prove three things in order to make their initial or prima facie case: (1) eviction, (2) within 180 days of the exercise of any of the 5 protected activities, and (3) no default in the rent. Under 1942,5(d), however, the tenant must prove the stated elements (e.g. that they were participating in a tenant’s rights organization) as well as prove that the landlord’s motive for the eviction was actually retaliatory. In other words, the tenant merely proving they were participating in a tenant’s rights organization is not enough to, for instance, win the case or shift the burden to the landlord.
Category 3: Immigration protections under Section 1942.5(c) and (3)
It also counts as a violation of 1942.5(a) and (c) for a landlord to actually report — or to threaten to report — the tenant or anyone associated with the tenant to immigration authorities.
I have not had a case involving this issue myself. In the abstract, I can definitely see how it would be improper for a landlord to coerce behavior from a tenant under threat of reporting the tenant to immigration authorities (e.g. “I’m tripling your rent and if you don’t pay it, I’m reporting you to ICE”). However, I think it would be much more gray if the landlord knew or strongly suspected his tenants were undocumented and wanted to report them to ICE and the landlord was sued for retaliatory eviction because of it.
On that last point, retaliatory eviction — in a residential context, at least — is both an affirmative defense as well as a separate cause of action. In other words, a tenant who is being evicted can try to claim retaliatory eviction as a defense and, if the judge agrees, the tenant will win the case. The tenant can also sue in a separate lawsuit for retaliatory eviction under Civil Code section 1942.5(h). Attorney’s fees and costs can be recovered under Civil Code section 1942.5(i).
Again, the above is just meant as a quick overview of how retaliatory eviction works in California residential landlord-tenant situations. This post is, by no means at all ever, a comprehensive discussion of the topic. I absolutely recommend doing your own research in to the topic (e.g. looking at Civil Code section 1942.5) and also consulting with a lawyer in your area about your particular situation.
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