Payment of Rent To Maintain Defense to Unlawful Detainers

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California AB 2312 is an effort to add a “rent payment bond” requirement for maintaining a defense to evictions based on failure to pay rent. The bill, authored by Assemblymen Gatto, is still under consideration, and has been criticized for conditioning a tenant’s right to counsel upon payment of rent. (The funds must be deposited into their attorney’s trust account, and the requirement wouldn’t apply if the tenant was not represented.) On the other hand, a common defense to non-payment unlawful detainer cases is a claim of habitability violations. And, if a tenant were to prevail – sometimes by even a small amount – the rent demand would exceed what the landlord was ultimately entitled to, and the landlord would lose and have to start again. A requirement like this would at least help ensure that these defenses were not pretextual.