Drafting Successful Settlement Agreements in

Unlawful Detainers Erin Katayama, Esq. – Homeless Advocacy Project/ Justice & Diversity Center/ Bar

Association of San Francisco

Claudia Medina, Esq. – Eviction Defense Network

Always Prepare for Trial

Prepare for Trial is the best way to learn your case and to have confidence to press for

a good settlement without fear of going to trial.

• Discovery

• Inspect the home

• Interview /subpoena witnesses

• Create jury instructions

• Create trial brief

• Always demand jury trial, you can decide to waive later

Preparing your Client for Settlement

Go over the risk/benefit analysis of doing the trial

1) Risk (losing)

• Being evicted

• Judgment on the client’s record

• Money judgment ---- effect of money judgment

• Loss of Section 8 voucher (if applicable)

• Record becomes public

• Getting no buy out ---- ?????

• Losing out on more time

2) Benefit (winning)

• Keep home

• *even if you win they could try to evict again

• *even if you win tenant will have to pay all back rent immediately

Ongoing Settlement Negotiations while Preparing for Trial

1) What to communicate to opposing counsel / what to avoid • Don’t offer information about your client that is not directly relevant to the case

(financial status, having other places to live, medical information)

2) Are all settlement negotiations confidential?

• Usually, yes.

• If drafting a reasonable accommodation request letter – make sure it

specifidcally states that it is not a confidential settlement negotiation and is

therefore not privileged.

Settlement Terms – General

1) Duration of settlement 2) Court costs and attorney fees – each side bear its own costs and fees

3) Masking issues 4) Waiver – CCP 1542 ---- in exchange for what?

5) Right to file motion to vacate a judgment, petition for relief, stay of eviction

6) How will the agreement be enforceable

• Court maintains jurisdiction

• How much notice must be given?

• Noticed motion or ex parte application? – allegations given ahead of time?

• Clear and convincing / preponderance of evidence

• What kind of evidence required

• Strikes / opportunities to cure if breach?

• Require government agency or third party in certain cases (hoarding)

• Require losing side pay costs

• Dismissal upon completion

• In event of alleged breach, settlement set aside and matter is tried to 6 or 8

person jury

Settlement Terms – Nuisance / Breach of Lease

1) Strikes / warnings?

2) Terms specific or general?

3) Room inspections for hoarding cases 4) What can landlords ask for? ------ as in how?

5) Good faith

6) Reasonable accommodation

Settlement Terms – Nonpayment of Rent

1) Pay 2) Pay on Time ----- delay until tenant can come up with money. If tenant doesn’t

pay provide for time to vacate and waiver of rent.

3) Rent Amount ---- rent reduction for bad conditions

4) Repairs ----------------------------no breach if landlord hasn’t made repairs

5) Cooperate with rental assistance

6) Form of payment

7) Client gets a payee

8) Dismissal of case upon full payment of back rent

9) Leveraging attorney’s fees provisions

Settlement Terms – Move out agreements

1) Date of move out

2) Rent waiver (past and ongoing)

3) Security deposit return

4) Non disparagement clause / letter of recommendation

5) Buy out – half up front / half upon move out • Issue with tenants on public assistance

6) Condition of room / unit upon move out

7) Where money should be sent

8) Landlord may want behavioral terms that are enforceable while tenant still there • make sure buy out payment and move out date are not conditioned on

complying with behavioral terms

Examples for Nuisance / Breach of Lease Hoarding/ Unsanitary Conditions

• Inspections once per month on the same day each month

• Has to fail a government inspection

• If failed inspection, has 10 days to cure

• Specific outline of what “pass” means or use general terms?

Throwing/Dropping things out of the window

• Tenant will not throw or drop things out of the window

• Install screens that can’t be removed

Flooding the sink or the bathtub

• Install water alarm or faucets that require pressure to run

Examples for Nuisance / Breach of Lease

Loud television or music

• Warnings

• Provide stickers on volume controls that specify “day” or “night”

• Provide additional sound proofing in room, headphones

Refusing pest control because of chemical sensitivity

• Must allow pest control

• Opportunities to cure

Examples for Nuisance / Breach of Lease Visitor Policy Violations

• Allow pre-approved visitors to enter without tenant escort

Arguments

• Make rule that tenant should put complaints in writing and/or avoid interacting

with that specific employee

• Move tenant to unit far away from the tenant they do not get along with

Leaving burner / stove on

• Install a stove /burner / outlet with an automatic shutoff

• Remove knobs on stove so that only the caregiver has access

Tips for Opposing an Allegation of Breach

• Agreement should give notice of breach (or warnings) to attorney

• Notice of intent to appear in court to attorney/ client

• If extreme factual dispute request evidentiary hearing

• Get sworn statements from tenant and witnesses

• If rent payment was missed, offer it at first opportunity. If landlord doesn’t accept

and insists on going forward with the hearing bring the money to the hearing with

a sworn statement that you tried to give it to them to avoid court