Legal Question in Landlord & Tenant Law in California
Illegal Unlawful Detainer
My landlord filled an illegal Unlawful Detainer against me. He claims he used the 'nail and mail' and is not required to personally give me a copy the the 3-day notice. I was home all day long when my landlord supposedly nailed the notice to my door, and I have it on tape that he did not attempt to give personally give me a copy of the notice. I did not find a copy of the notice on my door when left home that evening, I only received a copy in the mail a few days later.
After reading section 1162, I discovered that even when using the 'nail and mail' procedure, the statute specifically states that
''and also delivering a copy to a person there residing, if such person can be found;''
So with section 1162 reading the way it does, and the landlord admitting that (as he claims) he doesn't need to attempt to personally give me a 3-day notice, Did the landlord file an illegal 'Unlawful Detainer'?
4 Answers from Attorneys
Re: Illegal Unlawful Detainer
I'm going to agree with the three attorneys who have already responded to you - you're not super likely to prevail on this argument. I want to, however, address the issue of "I have it on tape" - did you record the landlord, and if so, do you have his written permission or his agreement to be recorded on the tape before done so? At a minimum, the recording is inadmissible in court as evidence of what is stated on the tape. Unless you have the landlord's written permission, or he states on the tape that he is consenting to his voice being recorded, I would not bring that tape to court as you could find yourself in a very difficult position.
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Re: Illegal Unlawful Detainer
You can raise it as an affirmative defense. You will have to prove to the court that you were home all day, however -- not an easy task unless you have a witness to that fact.
Re: Illegal Unlawful Detainer
I agree with Mr. Cohen.
However, you will still have to pay eventually.
Re: Illegal Unlawful Detainer
Maybe. I can also tell you that thinking the way you do, without an attorney, and claiming this as an affirmative defense, or trying to prove you weren't there as your sole strategy, may get you in a lot of trouble, and may result in a default against you and a sheriff knocking on your door. Remember the other side may complete and file a sworn proof of service as evidence. The law allows multiple means of service arguably so that people will not be able to dispute service in order to circumvent the law. Judges usually don't like people trying to circumvent the law. Unlawful detainer strategy can be very complex. I do not even know where geographically you are. If you are serious about this matter and are considering hiring an attorney, please feel free to contact me.
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