Metropolitan News-Enterprise


Thursday, January 5, 2017


Page 1


Appellate Division Holds:

Lessor Barred From Regaining Possession of Unit

Says Lack of Permits, Certificate of Occupancy Not Only Bars Collection of Past Due Rent, But Compels Summary Judgment for Tenant, Precluding Recovery of Premises


By a MetNews Staff Writer


A three-day notice to quit or pay rent was not only ineffective as a prelude to an action for damages, based on the lessor lacking permits and a certificate of occupancy, but also precluded the court from awarding possession of the premises, the Appellate Division of the Los Angeles Superior Court has ruled.

Its opinion, filed Nov. 16 and posted yesterday, affirms summary judgment in favor of a tenant, Guillermo Constante, who was sued by North 7th Street Associates for $739.35 in past due rent and for possession of the unit. By the time the case came before Los Angeles Superior Court Judge Deborah H. Christian, the lessor conceded that it could not obtain a judgment for money, owing to its lack of compliance with provisions of the Los Angeles Rent Stabilization Ordinance, but argued, unsuccessfully, that it was entitled to have Constante ousted.

Dymant’s Opinion

The Appellate Department affirmed, in an opinion by retired Los Angeles Superior Court Judge Anita H. Dymant, sitting on assignment. She wrote:

“Due to the undisputed unlawful status of the premises rented by plaintiff to defendant, their rental agreement was void, and plaintiff was barred from collecting any rent or using the unlawful detainer procedures to enforce the collection of rent….Put differently, if plaintiff could not collect any rent from defendant, then defendant had no obligation to pay any rent to plaintiff.  Furthermore, if defendant did not owe any rent to plaintiff, the three-day notice claiming $739.35 in past-due rent was necessarily an overstatement of defendant’s rental obligation, which could only be properly calculated as zero.  Since the three-day notice which was the basis for this unlawful detainer action failed to comply with the strict statutory requirements, it was invalid and could not support the action….The trial court therefore did not err in finding that there was no triable issue of fact and in granting summary judgment to defendant.”

Precedent Cited

The lessor relied on the 1978 decision in Gruzen v. Henry (1978) 84 Cal.App.3d 515, in support of its proposition that while collection of back rent was barred, an ouster of the tenant was not. There, the court deleted an award of damages from a judgment based on the lack of a certificate of occupancy, but left the award of the premises intact.

Dymant said:

“Because the issue on which our opinion turns was not raised in Gruzen, we do not read that decision as compelling a different result.”

North 7th Street Associates has been served by the city with a notice of abatement, ordering it to demolish the unapproved unit or obtain the required permits. Dymant remarked in a footnote:

[1]Plaintiff is, of course, not without a remedy in this circumstance since it may initiate an unlawful detainer to recover possession of the premises from defendant in order to comply with the January 2015 Notice of Abatement.”

The case is North 7th Street Associates v. Constante, BV 031357.

Allen R. King represented the lessor and Andrew Kazakes of the Legal Aid Foundation of Los Angeles was the attorney for Constante.


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