Affirmative defenses to an eviction in California for commercial tenants

Affirmative defenses to an eviction in California for commercial tenants are the topic of this blog post.

If you are a commercial tenant you may be under the mistaken impression that neither you nor your company could possibly have any defenses to an unlawful detainer action that has been filed against you. That is not true.

There are not as many affirmative defenses to an eviction in California for commercial tenants as there are for residential tenants.  However there are still some very powerful affirmative defenses to an eviction in California that can be asserted by commercial tenants.

This blog post will discuss a few of the most common affirmative defenses to an eviction in California that can be asserted by commercial tenants in the appropriate situations.

Affirmative defense of retaliatory eviction for commercial tenants in California.

One of the most powerful affirmative defenses to an eviction in California for commercial tenants is the defense of a retaliatory eviction by the landlord.  Retaliatory eviction is typically found in situations in which the landlord is attempting to evict a commercial tenant for an improper reason, raising their rent after the tenant has complained about problems with their rental, decreasing services, or other actions that are clearly meant as retaliation.

The California Supreme Court stated in a case from over 35 years ago that both residential and commercial tenants have a common-law affirmative defense for retaliatory actions by the landlord.  See Barela v Superior Court (Valdez) (1981) 30 Cal. 3d 244, 251.

In Barela v. Superior Court, supra, the California Supreme Court stated that “The retaliatory eviction doctrine is founded on the premise that a landlord may normally evict a tenant for any reason or for no reason at all, but he may not evict for an improper reason ….”  (internal citations and quotations omitted.)

Affirmative defense of constructive eviction for commercial tenants in California.

Another powerful affirmative defense to an eviction that commercial tenants can assert is the defense of constructive eviction.

The constructive eviction affirmative defense is an extension of the principle of a breach of the covenant of quiet enjoyment that is implied in every rental agreement.  A commercial tenant can assert the defense of constructive eviction when the landlord’s actions or omissions so interfere with the tenant’s right to “peaceful and beneficial possession” of the rental unit that the unit or a portion of it becomes uninhabitable.

In the California Court of Appeal decision of Clark v. Spiegel (1971) 22 Cal.App.3d 74, 78, a continued breach of covenant to maintain parking lot lights constituted an eviction of a tenant whose Laundromat business was adversely affected by a dark parking lot.

In a California Court of Appeal case that involved the issue of parking spaces being necessarily useful for occupancy by the lessee and that were expressly or by implication included in the lease, the Court of Appeal stated the following.

“However, it is well established that the intention of the parties as to just what property was to be occupied as essential to the use and enjoyment of the described premises is to be ascertained from the circumstances at the time the lease is entered into.” Seirad v. Lilly (1962) 204 Cal.App. 2d 770, 773. (citing text).

“On the sum total of the evidence we are satisfied that the trial court’s conclusion that plaintiffs were constructively evicted by breach of the covenant of quiet enjoyment (Civ.Code § 1463) is supported by the evidence.” Seirad v. Lilly, supra at 775. (citing text).

I worked on a case in August 2015 in which the defenses of constructive eviction and retaliatory eviction were raised as my clients had spent over $100,000 on opening their business and the landlord was well aware that the tenants business required ample parking and a child friendly environment.  However in the several months before the eviction was filed the construction around the business operated by my clients hindered their ability to make money as their business was crippled with all the noise and parking that was being taken up by the construction crews.  There was literally nowhere to park for their customers.

Not only had the construction next door to my clients business caused children to cry and leave but when the construction is complete and an adjoining business opened they would be serving alcohol as well.  When my clients complained about the intolerable conditions at their business location to the property management company they were very rude essentially taking a “that’s too bad” approach.   This was even after my clients had notified the property management company that the next door construction folks had damaged their side of the business with their drilling.   Shortly after making these complaints to the property management company an unlawful detainer complaint was filed against my clients.  I drafted an answer and I am happy to say that an amicable settlement was reached which avoided the need for a trial.

Another affirmative defense that can be asserted is where the landlord has rented the premises without obtaining any Certificate of Occupancy.  In that situation a commercial tenant may contend that any lease agreement for the Subject Property is not enforceable, thus the landlord cannot obtain any judgment for unpaid rent, although they are entitled to a judgment for possession.

This is more common than you might expect as many larger cities such as the City of Los Angeles, and the County of Los Angeles as well, do require a Certificate of Occupancy be obtained before any structure or building can be offered for rent or lease.

When local licensing requirements are intended primarily for public protection, contracts within their purview that are executed between unlicensed persons are unenforceable as a matter of public policy.  See Espinoza v Calva (2008) 169 Cal.App. 4th 1393, 1400.   As stated in Espinoza v. Calva, supra, if the lease is unenforceable due to a failure to obtain a Certificate of Occupancy, the landlord cannot obtain any judgment for unpaid rent, although they are entitled to a judgment for possession.

Eviction defense for commercial tenants in California.

An experienced litigation attorney can evaluate your situation and determine which affirmative defenses you or your company may have to an unlawful detainer lawsuit in California. Contact attorney Nathan Mubasher for a  consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.


Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660


Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.


Author: nathanmubasher

Attorney Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

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