Access to Justice in the Landlord Tenant Arena

ACCESS TO JUSTICE Landlord-Tenant Arena

by Andrew V. Gabriel

The American dream goes hand in hand with the idea of real property ownership1. Once an individual is able to own property, they have achieved the goal that generations of families have strived to reach. Many resort to renting out their property either to afford the very property they own or to act as an investment with a reasonable rate of return. From there, the landlord-tenant relationship is born.

As a member of the CCCBA’s Lawyer Referral & Information Service, I experience first hand that many landlords and tenants in the Bay Area are not aware of the rights and obligations being a landlord or tenant entails. I am not talking about the large, multinational corporation that owns several hundred units who have access to their in-house counsel on speed dial. Rather, more likely, it is the family that purchased a new home and is renting out their first home that has no clue of what is involved in being a landlord. Or the individual that has taken a massive leap into real estate and purchased their first multi-unit building. Where do those landlords turn when they have a problem tenant?

And what about tenants? While there are many non-profit organizations in the Bay Area that assist tenants, many non-profits have strict contingencies on their grant funding that limit how much an individual or family can make to receive assistance. With rents as high as they are in the Bay Area, one may simply not be able to afford both rent and to qualify for legal assistance from nonprofits. Where do those tenants turn to when they have issues with their landlords?

All of these questions present issues with access to justice, especially in the arena of unlawful detainers. Unlawful detainers are the expedited proceeding which makes it so that landlords can evict without burdening themselves with the cost and time associated with a full civil lawsuit. While the Judicial Council2 has taken steps to try and make the process as user-friendly as possible, there are simply more questions than answers in filling out the available forms. Throw in a global health pandemic, laws that vary county by county and city by city, and a landlord or tenant finds themselves in a minefield of information, and any mis-step results in delays or disaster.

As an attorney practicing landlord-tenant law, the comment I receive most from new clients, whether landlord or tenant is, “I could not find an attorney to help me with my case.” As attorneys, we are not only advocates for our clients, but we also run or contribute to a private business. Unlawful detainer actions use laws that are ever changing, expeditious in nature, and in the end, result in not a lot of billable time. In comparison, other Civil lawsuits typically result in several months, if not years, of litigation and hundreds of billable hours. Therefore, as a business model, landlord-tenant law does not appear to be the most immediately profitable. But, if an attorney makes the initial investment, takes the time to learn the state and local laws, and works carefully to navigate the landlord-tenant intricacies, they can help a large volume of individuals resolve their issues in a very short time span. And, now those people have a ‘go to’ attorney for their other business issues: contracts, investments and the like.

In one recent case, a pro-per plaintiff was attempting to evict my client, the tenant. The tenant, who was also pro-per at the time, held a phone consultation on a Thursday afternoon. The tenant then retained my services that following Saturday. I appeared at a pre-trial settlement conference on Monday, in which the plaintiff landlord did not attend. On Tuesday, moments before trial began, my client and I did an oral Motion for Judgement on the pleadings, based solely on the landlord’s defective notice to vacate in violation of the COVID-19 Tenant Protection Act.3 The court then granted the motion.

This case truly captured the multiple problems with access to justice in the landlord-tenant practice. The pro-per landlord simply did not know what the laws were and how to comply. Unlawful detainer rules are very strict because of their expedited nature and getting it wrong is fatal to the case. This landlord served their notice in January of 2020, right before the pandemic. Their case was finally heard in February of 2021. More than a year of time had elapsed and losses in income accrued. Tenant, on the other hand, was able to seek the assistance of counsel and fight their case.

For landlords, access to justice is critical in the early stages, at the notice level, before a lawsuit is even filed. The crux of any unlawful detainer lawsuit is the notice. This is even more critical during COVID-19 and in localities with rent ordinances. Failure to comply with notice requirements can not only be fatal for the lawsuit, but also subjects landlords to liability to the tenant. Tenants have the luxury (albeit stressful) of defending against a lawsuit. Often times, cases come to me when a default judgement has occurred, and the sheriff is only a week away from performing the lockout. All the while, the tenant has been incapacitated or away due to a family death. Is it possible to provide access to justice for both landlords and tenants? Access to justice is frequently pictured as a tenant issue4 but what can the landlord renting their family home do when their tenant is destroying their home? For many individuals on either side of the situation, the CCCBA’s Lawyer Referral & Information Service (or another referral source) acts as a lifeline. For a low fee, individuals will be able to speak with an attorney knowledgeable with the landlord-tenant landscape to at least understand their rights and responsibilities.

1. https://magazine.realtor/dailynews/2019/03/06/survey-homeownership-stillhallmark-of-american-dream 2. Judicial Council has created a number of forms specific to Unlawful Detainers: https://www. courts.ca.gov/1290.htm?rdeLocaleAttr=en 3. California Code of Civil Procedure §§ 1179.01-1179.07

Andrew V. Gabriel is a solo practitioner at the Law Office of Andrew Vento Gabriel assisting clients with employment and real estate/real property matters. Born and raised in the San Francisco Bay Area, he represents both landlords and tenants in order to have a complete understanding of the legal field as it pertains to tenants’ rights. Andrew represents clients in several cities and counties with and without rent/eviction controls including Contra Costa, Alameda, Solano, and San Francisco. In response to COVID-19’s impact on the rental market, Andrew continues to advise landlords and tenants of their rights and responsibilities.