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z

Cc

Requiring Just Cause for Eviction

from Private Housing:
A Survey of Litigation Strategies
and Legislative Approaches
by Frances E. Werner

CLEARINGHOUSE REVIEW
"Good cause" eviction is not an exception to the landlord's
common law right to possess at the end of a term. It constitutes
rather the introduction of the opposite principle, that of the
tenant's presumptive right to continue in possession.1
I. Introduction
This article pursues that "opposite principle'--the es-
tablishment of a presumption that, absent just cause, no land-
lord is entitled to evict a tenant. The overworked maxim that a
landlord may evict for a good reason, a bad reason, or no
reason at all is already largely discredited. Landlords of public-
ly assisted housing have for some time been held to a good
cause standard to evict, and all landlords in most states are
already prohibited from evicting for a range of retaliatory or
discriminatory reasons. Currently, all rent-controlled jurisdic-
tions, and even a handful of jurisdictions without rent control,
permit landlords of privately owned and operated housing to
evict only for just cause.
But the gaps are considerable and large numbers of
tenants of private housing remain subject to the whim or caprice
of their landlords. This article explores ways in which those
gaps might be closed, focusing on "free-standing" (indepen-
dent of rent control) just cause legislation and litigation strate-
gies that would achieve the same or similar result. Surely the
plight of the tenant who has painstakingly performed all rental
obligations in anticipation of continued residency, but who
nonetheless receives a notice to terminate, has always been
compelling; but it may not be unduly optimistic to think that the
tenant's predicament will strike a responsive legislative or
judicial chord now that we have a generally recognized low-
income housing crisis that has precipitated a rising tide of
homelessness. How much weight can be given to a landlord's
interest in acting arbitrarily or in bad faith when balanced
against the tenant's interest in not being forced out into a hostile
housing market that at the very best will cost substantially more
and at the very worst may not be able to accommodate the
tenant at all? This article will survey ways that have been tried
or suggested to strike a better balance.
H. Litigation Strategies to Require Just Cause
to Evict
A. The Tenant's Legitimate Expectation of Security
of Tenure
If state or local legislators are not inclined to act, tenants
will have to look to the judiciary to fashion appropriate relief
from arbitrary landlord behavior. In developing legal argu-
ments, tenant advocates will want to look to the preeminent law
review article on this subject, Providing Security of Tenure for
Residential Tenants: Good Faith as a Limitation on the Land-
lord's Right to Terminate,2 which explores possible legal theo-
1. Glendon, The Transformation of American Landlord-Tenant Law,
33 B.C.L. REV. 503, 542 (1982) (emphasis in original).
2. Bell, Providing Security of Tenure for Residential Tenants: Good
Faith as a Limitation on the Landlord's Right to Terminate, 19 GA.
L. REv. 483 (1985).
FEBRUARY 1989
ries. The author presents a carefully thought-out and well
articulated argument that recent landlord-tenant developments
and analogous employment and franchise cases augur well for
the judicial recognition of an implied covenant of good faith
and fair dealing in the residential lease, which will help to curb
arbitrary evictions. The following summary of the arguments
raised in that law review article should not serve as a substitute
for perusal of the article itself.
The author first examines recent developments in private
landlord-tenant law that support the proposition that a tenant's
expectation of security of tenure should be judicially recog-
nized. Case law establishing the implied warranty of habitabili-
ty, which led to the abandonment of the traditional principle of
caveat emptor, provides support for the proposition that the time
is ripe for judicially imposed restrictions on the landlord's
ability to evict. In the warranty of habitability cases, the courts
viewed the residential lease as a contract rather than a convey-
ance of property, and they were willing to imply an obligation
to provide habitable premises even where the express terms of
the contract may have provided otherwise. "This approach is
analytically similar to the proposal that courts discard tradition-
al property rules regarding termination for a contractual analysis
that focuses on protecting the legitimate
3
expectations of tenants
concerning continuity of housing."
The article next examines the underlying premise that a
tenant has an expectation of continuity in housing. Traditional
property law concerning the termination of tenancies was harsh
and could not have supported a legitimate expectation of contin-
ued residency. A tenancy for a term of years expired at the end
of the term with no obligation on the landlord's part to renew.
Periodic tenancies and tenancies at will could be unilaterally
terminated by the landlord upon proper notice-in the case of a
periodic tenancy-or upon no notice at all-in the case of a
tenancy at will. Under the classical theory of contract interpre-
tation, a tenant who wanted more could bargain for more-i.e.,
a term of sufficient years to satisfy his or her desire for security
of tenure.
Mitigating these harsh precepts of property law is a
series of judicial and statutory developments. Federal, state,
and local antidiscrimination laws prohibit termination of a
residential lease due to a widening range of discriminatory
reasons, including race, color, religion, sex, national origin,
physical or mental disability, age, marital status, the presence of
children in the household, source of income, sexual orientation,
and AIDS. In addition, since the seminal opinion in Edwards v.
Habib,4 courts and legislatures have restricted a landlord's
ability to terminate a residential lease for retaliatory reasons.
While these restrictions generally concern a landlord's attempt
to evict a tenant who has complained of housing code violations
or engaged in other activities related to the warranty of habit-
ability, other tenant activities relating to the tenancy itself (such
as tenant organizing) or to important public policies in general
(such as a tenant's refusal to appear as a witness and perjure
himself or herself in a lawsuit involving a landlord) will be
3. Id. at 489.
4. Edwards v. Habib, 397 E2d 687 (D.C. Cir. 1968), cert. denied,
393 U.S. 1016 (1969) (Clearinghouse No. 87).
1089
covered in some jurisdictions but not others. Not only is
coverage incomplete for the range of tenant activities that might
induce retaliation by a landlord, but the decisions and legisla-
tion may not cover a retaliatory failure to renew the tenancy-
5
as compared to a retaliatory termination of the tenancy.
Spotty as these protections may be against arbitrary
termination or nonrenewal, they do lend support for the propo-
sition that residential tenants are gaining an increasingly legiti-
mate expectation of security of tenure. As Bell observes in her
article, "Establishing a good faith limitation on termination
would allow the court to acknowledge explicitly what these
developments have provided indirectly: residential tenants have
an expectation of a stable and continuous home." 6 Bell then
proposes as the foundation of the establishment of a right to
security of tenure the interpretation by the courts of the obliga-
tion of good faith, which is implied in all contracts, including
residential leases, to prohibit a landlord from terminating or
failing to renew a lease for bad faith reasons. She looks
primarily to the employment termination cases and secondarily
to franchise termination cases as support for a more expansive
interpretation of the good faith obligation, because each of
these areas of law "involves a relational contract in which one
party has the ability, through termination rights, to deny another
party the continuance of a vital aspect of his or her life for
purely vindictive, coercive, or opportunistic reasons." 7
B. Implying a Covenant of Good Faith and Fair
Dealing as Protection Against Arbitrary Termination
1. Analogous Employment Cases
There are striking parallels between the development of
employment termination law and residential lease termination
law. As Bell points out, the apparent rigidity of the old rule,
that in an employment-at-will situation an employer may termi-
nate for any reason at all, has proven to be riddled with
exceptions. Civil service rules and collective bargaining agree-
ments require termination for good cause only; federal, state,
and local ordinances prohibit termination of employees for the
same range of discriminatory reasons applicable to the residen-
tial tenancy; finally, where the employer in retaliation has
terminated an employee for a reason that contravenes a signifi-
cant social concern, courts have developed public policy excep-
tions to the general rule. The last two categories of exceptions,
discriminatory and retaliatory reasons for terminating, apply
directly to the landlord-tenant relationship as well. While the
first category of exceptions, civil service rules and collective
bargaining agreements, does not have its exact parallel in the
landlord-tenant relationship, owners of public or assisted rental
housing are subject to a similarly heavily regulated relationship
with their tenants that includes a requirement that the landlord
may not evict without good cause.
What is different about employment termination law is
that it has taken a giant step ahead of landlord-tenant termina-
tion law. In employment as well as landlord-tenant law, the
courts have carved out public policy exceptions to the general
5. Bell, supra note 2, at 497-99.
6. Id. at 501.
7. Id. at 508.
rule that such contracts may be terminated at will. 8 The public
policy exception may be based on a direct statutory violation in
which the employer or landlord terminates the employee or
tenant in retaliation for the latter's refusal to engage in illegal
conduct, or the employer or landlord may directly violate a
statute by terminating the employee or tenant. In addition, the
employer or landlord's conduct in terminating the employee or
tenant may be wrongful because it violates a public policy
embodied in a statute, even though the act of termination is not
a direct or potential violation of the statute. In any event, some
sort of legislative expression of a policy that affects the general
public is required, and the employee or tenant who is terminat-
ed for malicious reasons in circumstances not affecting the
general public will be hard pressed to make out a case of
wrongful termination under this theory.9 These limitations of
the public policy exception have caused advocates of discharged
employees to look beyond this theory to imply a covenant of
good faith and fair dealing either in fact or in law.
a. Implied-in-Fact Cases
The implied-in-fact cases that have arisen in the employ-
ment context generally look to specific factual circumstances,
including longevity of service of the employee, promises made
by the employer at the time of hiring, personnel policies
governing termination, or other facts and circumstances appli-
cable to the discharged employee or all employees in general at
the company in question. For example, in Toussaint v. Blue
Cross & Blue Shield of Michigan,' 0 the court held that provi-
sions governing discharge in a personnel manual or employee
handbook, unilaterally and voluntarily adopted by the employer
and distributed to the employee at or subsequent to hiring,
become part of the employment contract. In Pugh v. See's
Candies, Inc., 11the California Supreme Court found an implied-
in-fact requirement of good faith based upon the employee's
extraordinary length of service (32 years with the company),
the fact that the employee had routinely received raises and
promotions and had been repeatedly assured that he was doing a
good job, that the company in practice did not terminate
executive personnel except for cause, and that 12the employee
was never warned that his job was in jeopardy.
The implied-in-fact cases have their own limitations. It
may be possible for the employer to protect itself by entering
into a written contract that explicitly provides that the employee
8. See, e.g., Wagenseller v. Scottsdale Memorial Hospital, 710 P.2d
1025 (Ariz. 1985) (employee who refused to "moon" an audience
in a "Moon River" skit performed during a river rafting staff trip
unjustly terminated; the public policy was found in an Arizona
indecent exposure statute); Windwood Partners v. De los Santos,
577 P.2d 326 (Haw. 1978) (tenants entitled to protection against
retaliatory eviction for having raised objections to landlord's plans
at a public rezoning hearing).
9. Bell, supra note 2, at 514, n.150.
10. Toussaint v. Blue Cross & Blue Shield of Michigan, 292 N.W.2d
880 (Mich. 1980).
11. Pugh v. See's Candies, Inc., 116 Cal. App. 3d 311 (1981).
12. See also Bell, supra note 2, at 516-17; Linzer, The Decline of
Assent: At-Will Employment as a Case Study of the Breakdown of
the Private Law Theory, 20 GA. L. REV. 323, 335-56 (1986).
CLEARINGHOUSE REVIEW
serves at the pleasure or will of the employer 13 or employers
may avoid liability by stating conspicuously in the handbook or
personnel policy itself that its terms are not intended to be
enforceable. 14 Beyond that, there are inherent limitations on
being able to prove such a fact-dependent case that will stymie
discharged employees and may well prove insurmountable to
terminated tenants. The only case of which this writer knows
that attempts to impose a good cause requirement in the
landlord-tenant setting illustrates this shortcoming. In Aspen
Enterprises, Ltd. & Brentwood Mobile Home Park v. Bray,15 the
owner of a mobile home renting space in a mobile home park
challenged the mobile home park owner's attempt to terminate
his tenancy without good cause, arguing by analogy to Toussaint.
The tenant argued that mobile homes are moved infrequently
and then only with great difficulty and expense and that the
mobile home park owner had published numerous rules and
regulations governing park operations that were similar in effect
to personnel policies. Included in the park rules were specific
references to conduct that would result in termination of the
lease. Thus, the tenant argued, compliance with the rules and
regulations created a legitimate expectancy on the tenant's part
to continued occupancy. Conceding that the mobile home owner's
tenancy was similar to the indefinite employment contract
considered in Toussaint, and assuming that the reasoning of
Toussaint applied to the tenancy, the court nonetheless failed to
find an implied-in-fact agreement not to terminate. The tenant
had not been able to point to any express promise that his
tenancy would not be terminated except for cause, nor could he
point to any language in the park rules that required a for cause
termination. This, according to the appellate court, was stretching
Toussaint beyond existing case law in Michigan governing
implied-in-fact contracts.
The authors of another law review article on good cause
eviction argue that it is the customary practice of landlords not
to evict for arbitrary reasons and that this customary practice
provides further support for an implied-in-fact good cause term
in a residential lease.' 6 Both the common law and the Uniform
Commercial Code look to custom or usage in interpreting
contracts. 17 Even more significant, cases finding that tenants of
federally assisted housing projects are entitled to protection
against arbitrary eviction were based at least in part on the
ground that it is the custom of subsidized housing project
owners not to evict arbitrarily. 8 In addition, individualized
dealings between the landlord and tenant may form the basis of
an argument for supplementing the written or oral lease agree-
ment with an implied-in-fact good cause eviction term. Finally,
as in the employment setting, a long-term tenancy should give
rise to an implied promise on the part of the landlord not to
terminate arbitrarily.
13. Toussaint, 292 N.W2d at 880.
14. Thompson v. St. Regis Paper Co., 685 P.2d 1081 (Wash. 1984).
15. Aspen Enter., Ltd. & Brentwood Mobile Home Park v. Bray, No.
78936 (Mich. Ct. App. Dec. 17, 1985) (Clearinghouse No. 36,665).
16. Salzberg & Zibelman, Good Cause Eviction, 21 WILLAMEi-rE L.
REv. 61, 75 (1985).
17. Id.at 75.
18. See Joy v. Daniels, 479 E2d 1236, 1241 (4th Cir. 1973) (Clearing-
house No. 10,478), and Swann v. Gastonia Hous. Auth., 502 E
Supp. 362, 366 (WD.N.C. 1980) (Clearinghouse No. 30,897),
citing Note, Procedural Due Process in Government Subsidized
Housing, 86 HARv. L. REv. 880, 905 (1973).
FEBRUARY 1989
In employment as well as landlord-tenant
law, the courts have carved out public
policy exceptions to the general rule that
such contracts may be terminated at will.
b. Implied-in-Law Cases
Where the facts do not support an implied-in-fact con-
tractual term not to terminate arbitrarily, as in the case of a
short-term tenant, or where the court is reluctant to find a
custom or usage in the absence of empirical data supporting a
practice by the landlord of terminating tenants only for good
cause, it may be necessary to argue instead that there is an
implied-in-law covenant of good faith and fair dealing protecting
the tenant. Here, too, the employment cases provide analogous
support. The implied-in-law term of nonarbitrary employment
termination is premised on the same proposition contained in
the Restatement (Second) of Contracts § 205, which provides,
"Every contract imposes on each party a duty of good faith and
fair dealing in its performance and its enforcement." ' 9 This
concept has been used in Monge v. Beebe Rubber Co.,20
where the court said:
In all employment contracts, whether at will or
for a definite term, the employer's interest in
running his business as he sees fit must be
balanced against the interest of the employee in
maintaining his employment, and the public's
interest in maintaining a proper balance between
the two ....We hold that the termination by an
employer of a contract of employment at will
which is motivated by bad faith or malice or
based on retaliation is not in the best interest of
the economic system or the public good and
constitutes a breach of the employment con-
tract ....Such a rule affords the employee a
certain stability of employment and does not
interfere with the employer's normal exercise of
his right to discharge, which is necessary to
permit him to operate his business efficiently and
2
profitably. 1
Courts in California 22 and in Massachusetts 23 have adopted
the implied-in-law good faith termination in employment cases,
but other courts have rejected this broader approach. 24 In
19. RESTATEMENT (SEcoND) OF CONTRACTS § 205 (1981).
20. Monge v. Beebe Rubber Co., 316 A.2d 549 (N.H. 1974).
21. Id. at 551-52.
22. Crossen v. Foremost-McKesson, Inc., 537 F Supp. 1076 (N.D.
Cal. 1982).
23. Fortune v. National Cash Register Co., 364 N.E.2d 1251 (Mass.
1977).
24. Murphy v. American Home Prod. Corp., 448 N.E.2d 292 (N.Y.
1983), and Brockmeyer v. Dunn & Bradstreet, 335 N.W.2d 834
(Wis. 1983).
1091

Mental Health Law Project
Co-Sponsors March 1989
Conference on New Partnerships
to Develop Housing for People
with Mental Disabilities
A two-day training seminar focusing on "Forging
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This event will be sponsored by the Mental Health
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field of community revitalization and housing development
for special populations, in conjunction with the National
Institute of Mental Health and ten national consumer,
family, and provider associations.
Limited registration is still available at a cost of
$385. For more information or registration forms, call
MHLP at (301) 997-0015 or (202) 467-5730, or write to
MHLP Housing Seminar, c/o LAM, Inc., Park View
Office Building, Suite 995, 10480 Little Patuxent Parkway,
Columbia, MD 21044.
addition to eliminating the necessity for searching about for
appropriate facts and circumstances to meet the implied-in-fact
test, the implied-in-law test cannot be overridden by the express
agreement of the parties providing for termination for any
25
reason.
It is important to note that the employment cases, both
the implied-in-fact and the implied-in-law cases, focus on
whether there is lack of good faith, rather than a lack of good
cause, to terminate. As one court said, "Certainly good cause
to discharge an employee would tend to negate the existence of
bad faith in the decision to discharge an employee. But termina-
tion in the absence of good cause does not establish bad faith,
and it is only a factor in determining whether there was fair
26
dealing."
25. See, e.g.. Crossen, 537 F Supp. at 1078.
26. Gram v. Liberty Mut. Ins. Co., 429 N.E.2d 21, 26-27 (Mass.
1981).
1092
There are important similarities between employment
cases concerned with bad faith termination and landlord-tenant
cases dealing with termination. As Bell observes, "The move-
ment away from the employment at will rule and toward job
security corresponds to the erosion of the rule permitting a
landlord to terminate a tenancy for any reason." 27 Even beyond
the parallel developments in case law in the two areas, the
underlying rationale for extending to employees the protection
of a good faith termination requirement applies to the landlord-
tenant context as well.
Because of the critical nature of the interest
affected by termination in each relationship, the
possibility of individual loss resulting from an
abuse of the power by the landlord or the em-
ployer is great. The reasons for protecting the
employee's interest from infringement for rea-
sons of malice, coercion or vindictiveness are
equally compelling in the landlord-tenant rela-
28
tionship.
And as Salzberg and Zibelman point out, the courts have
already read into the residential lease an implied-in-law cove-
nant to provide habitable premises, which infringes more on
traditional landlord prerogatives than the implication of a re-
quirement of good faith and fair dealing to terminate. 29 They
also point out that, unlike the warranty of habitability, implying
a good faith eviction requirement does not impose affirmative
acts on a landlord and does not entail the expenditure of
funds.3 °
2. Analogous Franchise Cases
Bell states that franchise termination cases provide sup-
port for the proposition that, once having recognized a tenant's
interest in continuity of tenure, that interest can be infringed
upon only in a fashion consistent with the landlord's obligation
to exercise good faith and fair dealing. 3 1 Even though franchise
agreements generally contain express provisions permitting the
franchisor to terminate without cause on short notice, the courts
have abandoned the so-called "freedom of contract" approach
to interpreting these agreements and in recent years have
imposed an obligation of good faith and fair dealing on the
franchisor's exercise of the right to terminate. These cases are
based on the inequality of bargaining power between the par-
ties, the economic unfairness of permitting a bad faith termina-
tion, and the fact that in some states some limited statutory
32
protections against franchisee termination have been enacted.
With one exception, the courts have imposed a good
faith, rather than a good cause, requirement in the franchise
termination cases. 33 The New Jersey Supreme Court, in Shell
Oil Co. v. Marinello,34 held that Shell Oil Company could not
27. Bell, supra note 2, at 519.
28. Id. at 519-20.
29. Salzberg & Zibelman, supra note 16, at 71.
30. Id. at 71, 72.
31. Bell, supra note 2, at 520.
32. Id. at 524.
33. Id.at 525.
34. Shell Oil Co. v. Marinello, 307 A.2d 598 (N.J. 1973), affg 294
A.2d 253 (N.J. Super. Ct. Ch. Div. 1972).
CLEARINGHOUSE REVIEW
refuse to renew a franchise without good cause. As Bell points
out, the distinction between failure to renew in good faith and
failure to renew for good cause can be significant. If the
franchisor or employer is held to a good faith only standard,
then it can put forward a legitimate business reason for termi-
nating the relationship with an employee or franchisee. If good
cause is required, then it must be shown that the party whose
rights are being terminated failed to perform under the contract,
and the employer or franchisor's sound business reasons for
35
terminating will be unavailing.
Bell posits that the courts' ready acceptance of the
imposition of a good faith requirement in the franchise setting
may be because franchising is a relatively new business practice
and franchisees did not have to do battle with well-established
precedent permitting termination at will. Moreover, since the
franchisee's interest is purely economic, whereas the employ-
ee's and tenant's interests may be partly economic and partly
noneconomic, the franchise cases are not as directly analogous
to the landlord-tenant relationship as are the employment cases.
But, Bell states, "[t]he significance of the franchise cases for
landlord-tenant law is the recognition that an individual who
has a vital interest in continuation of a contractual relationship
and who will suffer significant loss through termination is
entitled to protection against termination for punitive or vindic-
tive reasons. ' 36 In addition, the franchise cases provide support
for cases involving failure to renew a tenancy as well as
termination of a tenancy, and for the proposition that a good
faith limitation on lease termination cannot be waived.
C. California Public Accommodations Law Requires
Good Cause to Evict
Although as yet no reported decisions have so held,
California's public accommodations law is very likely to be
interpreted as requiring good cause by private landlords to
evict. This law, also known as the Unruh Civil Rights Act,
provides as follows:
All persons within the jurisdiction of this state
are free and equal, and no matter what their sex,
race, color, religion, ancestry, or national origin
are entitled to the full and equal accommoda-
tions, advantages, facilities, privileges or ser-
vices in all business establishments of every kind
whatsoever. 37
As the California Supreme Court recently said in Marina Point,
38
Ltd. v. Wolfson,
For nearly two decades the provisions of the
Unruh Act, in light of its broad application to
"all business establishments," have been held to
apply with full force to the business of renting
housing accommodations. (See, e.g., Swann v.
Burkett, 209 Cal. App. 2d 685, 694-695, 26 Cal.
35. Bell, supra note 2, at 525.
36. Id. at 528.
37. CAL. CIv. CODE § 51 (West 1988).
38. Marina Point Ltd. v. Wolfson, 30 Cal. 3d 727, 731, 180 Cal. Rptr.
496, 502 (1982) (Clearinghouse No. 25,945).
FEBRUARY 1989
The underlying rationale for extending
to employees the protection of a good
faith termination requirement applies to
the landlord-tenant context as well.
Rptr. 286 (1962); Abstract Investment Co. v.
Hutchinson, 204 Cal. App. 2d 242, 254-255, 22
Cal. Rptr. 309; 56 Ops. Cal. Atty. Gen. 546
(1973); cf. Burks v. Poppy Construction Co., 57
Cal. 2d 463, 467-39
471, 20 Cal. Rptr. 609, 370
P.2d 313 (1962).
As the reader may know and may well marvel, protec-
tion under the Unruh Act does not depend upon being a
member of one of the classes enumerated in the statute. In an
earlier decision, In re Cox, the state supreme court had reviewed
the history of the Unruh Act and concluded, "That the act
specifies particular kinds of discrimination-color, race, reli-
gion, ancestry, and national origin-serves as illustrative, rather
than restrictive, indicia of the type of conduct condemned." 40
As the court explained in Cox, when California's public accom-
modations statute was first enacted in 1897, it, like most other
states' public accommodations laws, simply provided that all
citizens were entitled to full and equal treatment at all places of
public accommodation, including the various establishments
enumerated in the statute. Interpretations of this statute, begin-
ning in the 1950s, established the principle that the public
accommodations law was intended to bar places of public
accommodation from arbitrarily excluding people from their
services and benefits. For example, in Orloff v. Los Angeles
Turf Club, 41 a race track was prohibited from expelling a patron
who had a reputation of immoral character. In Stoumen v.
Reilly,42 the California Supreme Court held that a bar and
restaurant owner who had excluded homosexuals was prohibited
from excluding any person from the facilities, except for good
cause. Notwithstanding the state supreme court's expansive
interpretations of the public accommodations law, Cox notes
that in the late 1950s the legislature became concerned that
California appellate courts were narrowly construing the types
of businesses covered by the public accommodations law. In
particular, in Reed v. Hollywood Professional School,43 a Cali-
fornia appellate court had ruled that a private school was not
required to admit a black child. In resporse' the legislature
enacted what became known as the Unruh Act, which, as stated
above, expressly prohibits discrimination on the basis of race,
color, religion, etc., and requires "all business establishments
of every kind whatsoever" to extend full and equal accommo-
dations. 44 Thus, the court in Cox concluded that because the
legislature intended to expand, rather than restrict, the scope of
the statute, the listing of protected classes was merely illustrative.
39. Id. at 502.
40. In re Cox, 3 Cal. 3d 205, 212, 90 Cal. Rptr. 24, 27 (1970).
41. Orloff v. Los Angeles Turf Club, 36 Cal. 2d 734 (1951).
42. Stoumen v. Reilly, 37 Cal. 2d 713 (1951).
43. Reed v. Hollywood Professional School, 69 Cal. App. 2d Supp.
887 (1959).
44. Cox, 3 Cal. 3d at 213-14.
1093
 Under the Unruh Act, business establishments must
show good cause for excluding people from their services. As
the court said in Cox, "A business establishment may, of
course, promulgate reasonable deportment regulations that are
rationally related to the services performed and the facilities
provided." 45 In Marina Point, which involved the exclusion of
all families with children from an apartment complex, the
landlord argued that, because children are noisier and more
mischievous than adults, its exclusionary policy bore a rational
relationship to its legitimate interest in preserving an appropri-
ate environment. The court rejected that argument, holding that
the rights afforded under the Unruh Act are individual in nature
and the Act does not permit a business enterprise to exclude an
entire class of people on the basis of the likely behavior of the
class as a whole. In further support of its position, the court
pointed to legislation enacted in 1979 in California that declares
that the state's housing problems are of crisis proportions and
notes that the greatest need for housing is being experienced by
residents at the lower end of the economic spectrum and,
further, that many lower-income households with children can-
not find decent, suitable, affordable housing.
Even before Marina Point was decided, a trial judge in
Los Angeles, in two unreported decisions, M & D Propertiesv.
Hankins46 and M & D Properties v. Lopez, 47 had found that a
landlord's attempts to evict residential tenants without good
cause violated the Unruh Act. The two cases involved attempts
by the owner of a 40-unit apartment complex to evict two of its
tenants. The tenants in each case claimed that the eviction
actions were brought in response to their complaints about
conditions in the building and their efforts to organize other
tenants. While the court found that the Hankins' eviction was in
retaliation for their organizing activities, it did not find a
retaliatory motive in the effort to evict the Lopezes; nonethe-
less, in each case, the court found that the landlord did not have
good cause to evict and therefore had violated the Unruh Act.
A good portion of the trial judge's 83-page slip opinion
in the Lopez case concerns the reasons a landlord might have to
decline to accept an applicant for admission or, once a tenancy
is established, to terminate that tenancy, which could pass
muster under the Unruh Act. The court observed that the
general standard, which is derived from Cox and Stoumen,
requires a good cause rationally related to the facilities provided
and services performed by the establishment in question. In
giving flesh to that standard, the court looked to HUD's
standards for good cause eviction contained in its regulations.
In addition, while the court noted that there is implied in every
contract a covenant of good faith and fair dealing, 48 good faith
differs from good cause in that bad faith is not the necessary
product of unreasonable behavior. The court likened the good
cause standard more to the traditional "minimal scrutiny" or
rational basis test under the equal protection clause where
45. Id. at 217.
46. M & D Properties v. Hankins, No. LA 248-358 (Los Angeles
Mun. Ct., 1978) (Clearinghouse No. 26,904).
47. M & D Properties v. Lopez, No. LA 241-584 slip op. (Los
Angeles Mun. Ct., 1978) (Clearinghouse No. 26,893).
48. Id. slip op. at 34, n.22, and at 39.
distinctions must have a "substantial relation to the legitimate
' 49
object to be accomplished.
On the question of allocating burdens of proof, the court
in Lopez suggested, but did not find it necessary to hold:
It may be that it is [the landlord's] duty, as
litigant, by reason of the Unruh Act first to state
in the termination notice, and pleading the com-
plaint, the reasons upon which he relies as con-
stituting good cause [citations omitted], and so
failure to make such allegations would be a
device in avoidance of his duty and an impermis-
50
sible attempt to shift the burden to the defendant.
In any event, when a tenant asserts retaliatory motive or other
failure of the landlord to have good cause to evict in an answer
to the unlawful detainer complaint, the burden is shifted to the
landlord as part of its prima facie case primarily to present
evidence in support of the existence of a legitimate justification
for the eviction. 51 The court based this conclusion on the
following factors: the fundamental policy of the Unruh Act
would otherwise be defeated; the Unruh Act imposes an affir-
mative obligation on the operator of a business establishment;
the tenant's interest in housing is fundamental; an unlawful
detainer may be initiated only by the landlord who is uniquely
in possession of the facts justifying its attempt to evict; it is
unreasonable to impose on a tenant the burden of proving a
negative (i.e., anticipating all possible justifications and prov-
ing their nonexistence); and the landlord's superior knowledge
and the tenant's inherent inability, together with the implied
covenant of good faith and fair dealing, support this conclusion.
The court in Lopez then turned to the justifications
offered by the landlord in support of its efforts to evict Lopez.
The court was doubtful that the landlord's claim of antisocial
behavior could ever rise to the level of good cause. While a
claim of nuisance or criminal behavior would, if supported, be
good cause to evict, in the case before it, the court concluded
that the claimed antisocial behavior was really a personality
conflict between the tenant and property manager and that both
were equally at fault. The claimed interference with manage-
ment having an adverse financial impact on the apartment
complex was equally without merit. While the landlord claimed
that the tenant had failed to allow repair people to enter his
apartment to make needed repairs, the evidence showed that for
three of the four visits the tenant had not received the prior
notice required by California law unless emergency repairs are
needed.52 In fact, the repair people had gained entry within a
reasonable period of time, and therefore defendant's conduct
did not affect either the liveability of the apartment house or the
financial interest of the landlord.
The Lopez and Hankins decisions are the only ones of
which this author is aware (reported or unreported) that involve
Unruh Act defenses to attempts to evict, although the Housing
49. Id. slip op. at 40, citing Mihans v. Municipal Court, 7 Cal. App.
3d 479, 488 (Cal. Dist. Ct. App. 1970) (Clearinghouse No.
3,702).
50. Lopez, slip op. at 72.
51. Id. slip op. at 73.
52. See CAL. CIv. CODE § 1954 (West 1988).
CLEARINGHOUSE REVIEW
aw Project does have in its files pleadings from other cases 53
ising Unruh Act defenses in the context of unlawful detainers.
1. The Public Accommodations Laws of Other States
The conclusion reached by the California Supreme Court
iat the state public accommodations law prohibits arbitrary
ehavior on the part of businesses, regardless of whether the
ictim is a member of an expressly enumerated protected class,
not so startling in light of the legislative history of the statute.
is possible that other states have public accommodations laws
isceptible to the same interpretation. It is certainly true that
iany of the predecessor statutes to the current public accom-
todations laws of other states were much like California's:
at-out prohibitions on denying privileges and services to the
ablic at large. The subsequent enumeration of race, sex, color,
ad national origin may simply reflect a heightened concern that
-rsons belonging to those groups were special targets of
.bitrary treatment. In addition, the notion of what is a "public"
:commodation may have received increasingly expansive treat-
ient by the state legislatures or courts.
A quick look at the public accommodations statutes of
,veral other states reveals that many of these statutes are
riforced by state antidiscrimination agencies, and violations
in be remedied only by recourse to an administrative remedy.
Inless the statute creates substantive rights that can be raised in
te eviction process, the availability of an administrative reme-
y in the context of eviction may be academic.
In any event, it is certainly worth researching other
ates' public accommodations laws to determine whether the
lalifornia courts' interpretation of the California law is
ansferrable.
I. State and Local Legislative Strategies to
Establish Good Cause for Eviction
While the litigation approaches described above should
rsult in providing residential tenants more security of tenure,
tey illustrate only too well the disadvantages of relying solely
pon a judicial solution and the decided advantages of a
:gislative solution. If a covenant of good faith and fair dealing
implied into residential leases by the courts, the coercive,
indictive, or opportunistic terminations that are not currently
wered by prohibitions against retaliatory or discriminatory
rminations will be curbed. This, however, is something short
the more desirable requirement that landlords terminate only
ur good cause. And while tenants in California should be able
p look to the Unruh Act for protection against evictions
ithout good cause, this legal handle may be unique to that
ate. Moreover, a litigation approach is necessarily incremental
id tied to the facts and circumstances of each case.
3. See, e.g., Sloan v. Boykins, No. 434044 (Cal. Mun. Ct., Alameda
County, Oakland-Piedmont-Emeryville Jud. Dist. Dec. 1, 1985); C
& G Properties, Inc. v. Carter, No. 46538 (Cal. Mun. Ct., Fresno
County, Fresno Jud. Dist. Nov. 15, 1979); Orrego v. Unland, No.
44934 (Cal. Mun. Ct., Contra Costa County, Concord Jud. Dist.
filed March 9, 1984, pending in Cal. Super. Ct. 1988).
EBRUARY 1989
Michigan Statute Requires
"Just Cause" to Terminate
Mobile Home Park Tenancies
The Michigan legislature has enacted a bill entitled
"Summary Proceedings to Recover Possession of Premises-
Mobile Homes, Public Act No. 336." The Act, which
becomes effective on May 1, 1989, grants certain proce-
dural protections to the mobile home park tenant, includ-
ing requiring just cause for termination of tenancy. The
Act also provides that if a tenancy in a mobile home park
is terminated for just cause, the tenant may sell his or her
mobile home on site. Copies of the Act are available from
the Clearinghouse, No. 44,145, free of charge.
A few states and local governments have found the
legislative process much more beneficial and efficient. Such
legislation has specified the categories of tenant behavior that
constitute good cause for eviction and has required the landlord
to specify the good cause relied upon in notices of termination
that must be provided prior to the commencement of a formal
eviction action as well as in the complaint for eviction itself.
This section of the article surveys those few states and local
governments that have enacted free-standing just cause eviction
controls.
A. State Laws
Since 1974, the state of New Jersey has had a just cause
for eviction statute applicable to all residential leases, including
the lease of mobile homes or land in a mobile home park, other
than owner-occupied two-unit buildings or transient or seasonal
housing. 54 As originally enacted, the New Jersey statute speci-
fied the following ten just causes to evict:
(1) Failure to pay the rent when due;
(2) Disorderly conduct destroying the peace and quiet of
other tenants or the neighborhood;
(3) Damage to the premises resulting from willful con-
duct or gross negligence;
(4) Substantial violation of reasonable, written rules and
regulations;
(5) Substantial violation of any of the reasonable cove-
nants or agreements in the lease where right of reentry is
reserved to the landlord in the lease;
(6) Failure to pay a rent increase, provided the increase
is not unconscionable and complies with any other local ordi-
nances governing rent increases (i.e., local rent control laws);
(7) The owner seeks to board up or demolish the
premises due to substantial code violations where it is economi-
cally unfeasible for the owner to eliminate the violations;
(8) The owner seeks to take the building or mobile home
park off the rental market;
54. N. J. STAT. ANN. § 2A:18-53 (West 1987).
1095

Saving Public Housing from
Demolition or Sale
The National Housing Law Project has published a
memorandum entitled Saving Public Housing from Demo-
lition or Sale: A Description of Relevant Laws. Despite
laws designed to make sale or demolition of a public
housing project the last resort, proposals to demolish or
sell many of the projects in existence in this country are
constantly being made. This memorandum sets forth the
basic laws that define the circumstances under which a public
housing project can be demolished or sold, including the
current public housing demolition and disposition statute,
the relevant civil rights law, the National Environmental
Policy Act, the Uniform Relocation Act, the Comprehen-
sive Improvement Assistance Program, and the Communi-
ty Development Block Grant Program. The memorandum
includes an overview of the rights and responsibilities of
the parties involved in particular demolition/disposition
contexts, such as the sale of rental units to tenants for
homeownership. The memorandum also discusses the ef-
fect that excessive vacancies in public housing projects
may have on proposed demolition and the effects that the
expiration of 40-year annual contributions contracts have
on the sale of such housing. Finally, the memorandum
contains a list of state laws affecting demolition or disposi-
tion of public housing and provides a summary of public
housing demolition disposition cases. This 334-page mem-
orandum is available from the Clearinghouse, No. 43,830,
free of charge to LSC-funded programs, and $37 to all
others.
(9) The tenant refuses to accept, at the termination of
the lease, reasonable changes in the lease terms;
(10) The tenant habitually fails to pay the rent.
The New Jersey laundry list of categories of just cause
for eviction conform generally to the standard categories con-
tained in the typical rent control ordinance. 55 Other typical just
causes include refusal to allow the landlord reasonable access to
the premises for the purpose of making repairs or showing the
unit to a prospective purchaser or mortgagee, and the good faith
intention of the landlord to occupy the unit himself or herself or
to provide it to close relatives such as children, parents, or
siblings.56
In 1986, two loopholes in the New Jersey law were
closed. Under the 1974 law, landlords who wished to retire a
building permanently from residential use, or who were board-
ing up a building with code violations that were not feasible to
repair, had just cause to evict. Landlords were using these
opportunities to evict and then turning around and renting the
55. See Baar, Guidelines for DraftingRent ControlLaws: Lessons of a
Decade, 35 RUTGERS L. REV. 723, 833-35 (1983).
56. Id.
If a covenant of good faith and fair
dealing is implied into residential leases
by the courts, the coercive, vindictive,
or opportunistic terminations that are not
currently covered by prohibitions against
retaliatory or discriminatory terminations
will be curbed.
apartments at substantially higher rents or converting them into
condominiums or co-ops. Under the 1986 amendments, land-
lords who claim that they are permanently retiring the buildings
from residential use must first obtain all necessary nonresidential
zoning approvals before evicting any tenant, provide all tenants
with an 18-month notice, and state in the notice what the
landlord plans to do with the building. Any tenant who is
falsely evicted under either of the loopholes can sue for triple
damages. If a tenant has been evicted because the landlord
wants to retire the property or because of code violations, and
the landlord later decides to return the property to residential
use, all evicted tenants must be given a right to return and, if
the building is being converted to a condominium, a 40-year
protected tenancy in the building if the tenant is a senior citizen
57
or disabled.
The state of New Hampshire also has a free-standing
just cause eviction control statute. When the governor vetoed a
New Jersey-style laundry list bill, tenant advocates compromised
with a bill that sets out certain just causes and also provides for
eviction for "other good cause." 58 The statute defines other
good cause as including but not being limited to any legitimate
business or economic reason that need 59
not be based upon
anything the tenant did or failed to do.
B. Local Ordinances
The city of Seattle has had a free-standing just cause
eviction ordinance since 1980. It was enacted by the city
council shortly before city voters were to decide on a local rent
control initiative that had been placed on the ballot. Speculation
and rent increases had prompted the initiative campaign and
early polls showed popular support for it. The just cause
eviction ordinance was passed in July 1980, on the eve of the
election, along with an ordinance designed to curb the demoli-
tion of residential buildings by requiring developers to help
finance replacement units and pay relocation costs.
57. LEGAL SERVICES OF NEW JERSEY, New Law Strengthens Tenants'
Rights, in LOOKING OUT FOR YOUR LEGAL RIGHTS 10-11 (Feb.
1987) For more information about the New Jersey statute, contact
Steve St. Hilaire, Hudson County Legal Services Corporation, 574
Newark Ave., Jersey City, NJ 07306, (201) 792-6363.
58. N.H. REV. STAT. ANN. § 540 (1974).
59. For more information about this statute, contact Elliott Berry, New
Hampshire Legal Assistance, 795 Elm St., Manchester, NH 03101,
(603) 668-2900.
CLEARINGHOUSE REVIEW
 The Seattle ordinance provides that the reasons enumer- Project is also aware of an unsuccessful attempt in the city of
ated for termination of a tenancy, and no others, constitute good Evanston, Illinois, to pass a just cause eviction ordinance.
cause for eviction. If an owner is evicting in order to demolish
the building or convert it to a condominium or to nonresidential IV. Conclusion
use, this is a good cause for eviction provided that the owner
has first obtained all permits necessary for the demolition or
At this stage in the evolving law of landlord and tenant
change of use. relations, the extent to which landlords still have unfettered
Notices of termination must specify the good cause
discretion to terminate or fail to renew a tenancy for arbitrary
relied upon by the landlord, and the ordinance expressly pro-
reasons is anomalous. If landlords are held to a standard of
vides that a tenant may raise as a defense to an eviction action
good faith and fair dealing, the more egregious, vindictive,
the landlord's failure to have good cause to evict. As an
opportunistic or coercive evictions will be curbed; if they are
additional enforcement mechanism, the ordinance also provides 6 held to a good cause standard, evictions will be required to
for a $500 fine for each day that the landlord is in violation. 0
serve legitimate business purposes. In either event, an element
The town of Cotati, about 50 miles north of San Francisco
of rationality will be introduced in a process that, as far as the
and home to California State University at Sonoma, also has a law is now concerned, may be instituted for irrational reasons
free-standing just cause eviction ordinance passed in 1979.61 It,
regardless of the consequences to tenants.
too, contains a laundry list of reasons that constitute just cause.
The law's failure to engage in a presumption that tenants
Notices to terminate must specify the just cause relied upon,
have a right to continue in occupancy is ripe for correction. It is
and the ordinance expressly provides that the landlord in an
one of the dinosaurs dotting the legal landscape whose extinc-
unlawful detainer action bears the burden of proving just cause.
tion is long overdue.
Legislators in Maryland, Massachusetts, and California
have tried but failed to pass just cause eviction statutes. The [Readers please note: Copies of all enacted and pro-
posed ordinances discussed in this article are available from
Lucy Mandoriao at the Housing Law Project's Berkeley office.]

60. For more information about the Seattle ordinance, contact Steve
Frederickson, Evergreen Legal Services, 401 Second Ave. S.,
Suite 401, Seattle, WA 98104, (206) 464-1422. Frances E. Werner is Executive Director of the National Housing Law
61. Cotati, Cal., Ordinance 282 (1979). Project, 1950 Addison St., Berkeley, CA 94704, (415) 548-9400.

FEBRUARY 1989