North 7th Street v.
Guillermo Constante, L.A. Appellate
Division Superior Court, 1/4/17
In this unlawful
detainer case, the trial court granted tenant's summary judgment against
landlord. In everyday language -- the trial judge threw the landlord's
eviction action out of court! The tenancy was based on an oral agreement, but
the unit was built without permits and landlord never obtained a certificate of
occupancy. When the tenant stopped paying rent, the landlord served a three-day
notice to pay rent or quit.
Held: Trial court's grant of summary judgment in favor of tenant
upheld. An unlawful detainer is an expedited action (technically called a
“special proceeding”) to recover possession and is a creature of statute. To invoke California's unlawful detainer law, its requirements must be
strictly followed. Without permits or certificates of occupancy, the
lease was void and the landlord was not entitled to collect rent. The
landlord's three day notice to pay rent or quit – which claimed about
$700 – was defective and could not support an unlawful detainer action in
the first place.
The appellate department dismissed
landlord’s reliance on Gruzen v. Henry (1978) 84 Cal.App.3d
515 (Gruzen), which posed basically the same issue, but with a different
result. In Gruzen, the Court of Appeal upheld the trial court's judgment in
favor of landlord for possession, but reversed the award of damages for unpaid
rent. It is difficult to square these two cases. The Gruzen court
basically acknowledged that a lease for a unit without an occupancy permit is
void. But it proceeded to uphold the judgment for possession because the
notice to pay rent or quit was only $18 more than the amount due under the
(admittedly void) lease. A missing step in the logic tree. In North
7th Street, the court used a different reference point – The amount of
rent due was $0 and any amount over that can’t be justified. Gruzen didn't
consider or discuss that issue, and as North 7th Street points
out, cases are not authority for propositions they don't consider.
The tenant is probably thinking
about seeking restitution of past rent that was paid for the unpermitted unit
over the life of the "lease."
For further information,
please contact Ruzicka, Wallace & Coughlin, LLP at (949) 748-3600;
website: www.rwclegal.com.
The law firm of Ruzicka,
Wallace & Coughlin, LLP represents landlords, property management
companies, institutional and private lenders, employers and insurance companies
throughout the State of California in real estate, business and employment
litigation. The information provided herein is for general interest only and
should not be relied upon or construed as legal advice.
© 2017 Ruzicka, Wallace
& Coughlin, LLP.
