What is Common Law Retaliation?

Common law retaliation is any action taken by a landlord against a tenant that is not codified as retaliatory under California statutory law.

For example, if a landlord serves the tenant with a three-day notice to quit within 180 days after the landlord has been notified of housing code violations by the Department of Building Inspection, the tenant will be able to prove statutory retaliation by the landlord. But what about the tenant who is served a notice by the landlord after 180 days? What defense does she have if her landlord tries to evict her?

If a tenant is retaliated against by her landlord and the landlord’s behavior is not listed as prohibited under California law, then the tenant would need to argue common law retaliation. Public policy permits a defense of an eviction (or an affirmative right of action) by a tenant under common law retaliation. California has an interest in not permitting tenants to be evicted because they exercised their rights.

Under common law retaliation, the tenant has the burden of proving that the landlord is retaliating against her based on her exercise of her rights. The tenant must produce specific evidence and prove by the preponderance of the evidence retaliation by the landlord. Then, the burden shifts to the landlord to produce evidence of a good faith motive. The trier of fact would weigh both sides and come to a decision.

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Mary Catherine Wiederhold

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