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Constructive eviction or retaliation?

Albany, CA |

In June 2012 all the tenants in the building demanded compensation for a series of problems: construction work at 2:00 AM, water shut offs, obstruction to garbage cans and more...Landlord refused to respond and rejected mediation. She is raising my rent next month, but not anyone else's rent in the building. Terms on the new lease are draconian and conflict with a number of Civil Codes (1717, 3302, 1671, 1670.5 (a), 1953, 1668, 1941, 1942). I've been in the building longest i.e. 10 months before other tenants who were parties to the complaints. We don't have rent control, but is she trying to get rid of me? I don't feel I'm being treated fairly.

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Attorney answers 3


Your landlord cannot retaliate against you, including by raising the rent, for participating in a tenant's association. I would consult with an attorney to determine whether you can prove retaliation.

Legal consultation would be especially appropriate because you seem to have lost some objectivity. You cite a string of sections that the lease supposedly violates, but the lease itself cannot violate sections 1717, 3302, 1670.5, 1671, or 1942.



Hi, we don't have any tenant's association in a non-rent control area. Here are what I mean by the codes: CIVIL CODE 1717: ONE-WAY ATTORNEY’S FEES ARE UNTENABLE.  Attorney fees “billed to tenant as added rent regardless of any outcome” violates the legal principle of good faith and fair dealings; conflicts with California Civil Code Section 1717 and the judicial enforcement of equitable remedies. CIVIL CODES 3302 AND 1671: “DISCOUNT AND FEES FOR NOTICES,” DISGUISED AS LATE FEES AND LIQUIDATED DAMAGES ARE ILLEGAL. The $50 discount, when revoked for rent paid after the first is technically a late fee.  The additional $50 fee for notice i.e. for late rent, is another late fee. The legal rate of interest is 10% for consumers in California, without compounding, or 1/ 3650th of the monthly rent per day.  On a $930 monthly rent, that’s 25 cents per day or $1.75 per week.  The total fees of $100 (minuses discount and adding fee for notice) for being two days late, for instance, is not 10% interest, but 2000% interest. The fees exceed twenty times the legal limit. The late fees disguised as a discount and fees for notices are essentially liquidated damages, which will always be void and illegal.  CIVIL CODES 1670.5(a), 1953 AND 1668: INDEMNIFICATION AND HOLD HARMLESS CLAUSE IS UNENFORCEABLE.  I refuse to waive my rights for certain claims, losses, damages and fees on the Owner’s premises. CIVIL CODES 1941 and 1942: SINK REPAIR IS LANDLORD’S DUTY.  I refuse to “pay for the clearing of any and all stoppages that are not due to defective plumbing, tree roots or acts of God.” The half-century old building comes with normal wear and tear, whereby tenants cannot be burdened with liability for costs of repair.  Further, the stoppage in my bathroom sink is permanently fixed, so one cannot insert any strainer to catch debris... Pursuant to California Code of Civil Procedure section 1670.5(a) and California Civil Code section 1953, any clause in a California RLA asking tenants to waive rights under the law and to agree to the contrary, is unenforceable. California Civil Code section 1668 upholds: “All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” Pursuant to Civil Code 1671, late fees are illegal and void.  Orozco v. Casimiro concludes late fees are liquidated damages.  Civil Code 3302 reinforces liquidated damages can never be impracticable to assess; therefore late fees will always be illegal and void for residential tenants. Kendall v. Ernest Pestana defends the implied covenant of good faith and fair dealing to safeguard tenants. California Unfair Competition Law (UCL), and Calif Business & Professional Code §§ 17200-17208 prohibit unfair competition by prohibiting, inter alia, any unlawful or unfair business acts or practices.   A tenant may recover retroactive rent under a claim of unfair business practices. Cal. Bus. & Prof. Code § 17200.  The damage award is cumulative, so an award for unfair business practices does not reduce an award under alternate causes of action. Id. § 17205.

James Carl Eschen III

James Carl Eschen III


Late fees are not illegal. They are, however, unenforceable if the landlord cannot show a good-faith estimate of damages (which landlords never can). That is why I said that they do not violate the statute. Similarly, a one-way attorney's fee provision is not unlawful under section 1717. Instead, the statute requires that it be interpreted as reciprocal. If all the tenants acted together, you may have an association.



Thank you very much!


I agree with counsel's post, many of the statute sections you cite are not applicable to your fact description. If you have been there longer than any other tenant, perhaps the increase is justified, if no rent control restricts such an increase and the lease term is coming to an end. You many want to seek counsel to look at all the facts to determine if this is truly a case of retaliation. Good luck.

These answers are not intended nor shall it be deemed to be the rendering of legal advise, they are given based on the information provided which is insufficient to give meaningful advise. These answers shall not be construed as part of the creation of an attorney-client relationship, nor shall it impose an obligation on the part of the attorney to respond to further inquiry. The Questioner has responsibility of obtaining legal advise from an attorney and is urged to do so.


Raising the rent in such instance is definitely not constructive eviction, and is not necessarily retaliatory. You'll need an attorney to review the new proposed lease before you can come to any conclusions.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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