The doctrine of retaliatory eviction means that the landlord is prohibited from taking retaliatory measures against a tenant who, in good faith, reports the landlord for housing code violations. In response to a lawful complaint, the landlord must not endeavor to:

  • Evict the tenant
  • Raise the tenant’s rent
  • Engage in any other form of retaliation.

Reference Desk:

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Frampton v. Central Indiana Gas Company, 297 N.E.2d 425, 428 (Ind. 1973).

“Retaliatory evictions usually result from a tenant’s reporting health or safety code violations to an appropriate administrative body. The tenant, quite often unable to motivate the landlord to make necessary repairs and improvements, reports the violations. The landlord, angered by the tenant’s temerity, either gives the tenant notice to quit or effectively evicts the tenant by raising the rent to an unreasonable level. The cases hold that retaliatory eviction may be raised as an affirmative defense in an action by the landlord for possession. Going one step further, a recent California decision holds that a landlord’s retaliation is the basis of an affirmative cause of action. It should be noted that the California Court of Appeal based its holding on a public policy embodied in a particular section of the Civil Code and not upon any statutorily created cause of action.”

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Barela v. Superior Court, 30 Cal. 3d 244, 249-51 (1981) (quotations and citations omitted)

“The defense of ‘retaliatory eviction’ has been firmly ensconced in this state’s statutory law and judicial decisions for many years.  It is settled that a landlord may be precluded from evicting a tenant in retaliation for certain kinds of lawful activities of the tenant.  As a landlord has no right to possession when he seeks it for such an invalid reason, a tenant may raise the defense of retaliatory eviction in an unlawful detainer proceeding.  The retaliatory eviction doctrine is founded on the premise that a landlord may normally evict a tenant for any reason or for no reason at all, but he may not evict for an improper reason.

The affirmative defense of retaliatory eviction was first recognized by this court in Schweiger v. Superior Court. There, the statutory ‘repair and deduct’ provision (§ 1942) was construed so as to include protection against eviction for those tenants who exercised their statutory rights. The same year, the Legislature codified this protection in section 1942.5. The statute prohibited landlords from evicting a tenant in retaliation for the tenant’s exercise of the right to repair and deduct or the tenant’s complaint to the authorities about housing code violations.

In 1976, this court extended the scope of the common law retaliatory eviction defense beyond mere complaints about conditions of tenancy. (S.P. Growers Assn. v. Rodriguez, supra, 17 Cal.3d 719, 728.) In S.P. Growers, this court held that an eviction in retaliation for the filing of a federal lawsuit charging violations of a federal farm labor statute was improper. The test set down in S.P. Growers, supra, is quite simple. (3) A valid defense of retaliatory eviction may be advanced if, on balance, the public policies furthered by protecting a tenant from eviction outweigh the state’s interest in ensuring that unlawful detainer proceedings are truly summary. (Id., at pp. 728-729.)

The Legislature repealed section 1942.5 in 1979 and reenacted it with amendments. (Stats. 1979, ch. 652, § 2, p. 2005.) The statutory retaliatory eviction defense was greatly expanded. The time period during which a tenant is protected was extended, and the grounds for which retaliation is prohibited were enlarged. (§ 1942.5, subds. (a) and (c).) In addition, the 1979 amendments added a specific statement that the statutory remedies provided by section 1942.5 are in addition to any other remedies provided by statutory or decisional law. (Id., subd. (h).)

Thus, California has two parallel and independent sources for the doctrine of retaliatory eviction. This court must decide whether petitioner raised a legally cognizable defense of retaliatory eviction under the statutory scheme and/or the common law doctrine.

(4a) Section 1942.5 is a remedial statute aimed at protecting tenants from certain types of abuses. It is to be liberally construed to effect its objectives and to suppress, not encourage, the mischief at which it was directed.

Subdivision (c) of section 1942.5 provides that it is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of such acts, for the purpose of retaliating against the lessee because he or she has … lawfully and peaceably exercised any rights under the law.  This subdivision was added to the statute in 1979. (Stats. 1979, ch. 652, § 2, pp. 2005-2006.) It has been denominated a “boilerplate” provision because of its broad prohibition against retaliation by a landlord when a tenant has exercised valid legal rights under the law. (See Review of Selected 1979 California Legislation (1979) 11 Pacific L.J. 601, 602.).”

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CACI Jury Instruction 4321. Affirmative Defense – Retaliatory Eviction – Tenant’s Complaint (Civ. Code § 1942.5)

Defendant tenant claims that Plaintiff landlord is not entitled to evict him because Plaintiff filed this lawsuit in retaliation for Defendant’s having exercised his rights as a tenant. To succeed on this defense, Defendant must prove all of the following:

1. That Defendant was not in default in the payment of his rent;

2. That Plaintiff filed this lawsuit in retaliation because Defendant had complained about the condition of the property to Plaintiff and/or an appropriate agency; and

3. That Plaintiff filed this lawsuit within 180 days after [one of the following]:

-the date on which Defendant, in good faith, gave notice to Plaintiff or made an oral complaint to Plaintiff regarding the conditions of the property; or

-the date on which Defendant, in good faith, filed a written complaint, or an oral complaint that was registered or otherwise recorded in writing, with an appropriate agency of which Plaintiff had notice, for the purpose of obtaining correction of a condition of the property; or

-the date of an inspection or citation, resulting from a complaint to an appropriate agency of which Plaintiff did not have notice; or

-the filing of appropriate documents to being a judicial or an arbitration proceeding involving the conditions of the property; or

-entry of judgment or the signing of an arbitration award that determined the issue of the conditions of the property against Plaintiff.

Even if Defendant has proved that Plaintiff filed this lawsuit with a retaliatory motive, Plaintiff is still entitled to possession of the premises if he proves that he also filed the lawsuit in good faith for a reason stated in the 3/30/60-day notice.

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CACI Jury Instruction 4322. Affirmative Defense – Retaliatory Eviction – Engaging in Legally Protected Activity (Civ. Code § 1942.5(c))

Defendant tenant claims that Plaintiff landlord is not entitled to evict him because Plaintiff filed this lawsuit in retaliation for Defendant’s having engaged in legally protected activities.  To succeed on this defense, Defendant must prove both of the following:

1. That Defendant lawfully organized or participated in a tenant’s association/an organization advocating tenant’s rights; or, That Defendant lawfully and peaceably engaged in a lawful activity;

and

2. That Plaintiff filed this lawsuit because Defendant engaged in the above-listed activity.

Even if Defendant has proved that Plaintiff filed this lawsuit with a retaliatory motive, Plaintiff is still entitled to possession of the premises if he proves that he also filed the lawsuit in good faith for a reason stated in the 3/30/60-day notice.

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