How to Dispute an Eviction

Preparing to Fight an Eviction

Read your eviction notice. Once you receive the notice, read it carefully to see why you are being evicted. If the notice does not say, then you should call your landlord to find out exactly why you are being evicted. Typically, there are three types of evictions: Pay or Quit. Tenants receive this eviction when they have failed to pay their rent in a timely manner. Your landlord is legally required to accept a full rental payment but not a partial payment. If, however, your landlord accepts partial payment, then the eviction ends (unless you fail again to pay rent). Cure or Quit. You can receive this eviction even if you timely pay rent. This type of eviction informs you that you have violated the lease agreement in some way. For example, you may make too much noise or you may have a pet when it isn’t allowed. The eviction notice should tell you the amount of time you have to cure the problem. Unconditional Quit. With this eviction, you have no ability to cure. Instead, the landlord wants you to leave the apartment by a certain deadline. State law limits the situations in which a landlord can issue this kind of eviction notice. Typically, a landlord would use it if the tenant has been late repeatedly with rent, used the premises for illegal activity, or seriously damaged the property.

Get a copy of your lease. You should already have a copy of your lease. If you don't have a copy, ask your landlord for one. Make sure to read the lease provisions to see if the landlord is interpreting them fairly. For example, your lease might state that rent is due no later than the fifth day of each month. However, if there is a holiday on that day and the rental offices were closed, it might have been unfair for them to assess you late fees and penalties. Some lease provisions are vague. For example, your lease might state that you will use heating and air conditioning “reasonably and for the purposes intended.” What qualifies as “reasonable” is somewhat vague. If your landlord cites a vague provision like this, then you can challenge their interpretation in court.

Understand the applicable law. Your state or municipal law can limit the situations in which a landlord can evict a tenant. For example, most states prohibit “retaliatory” evictions. A landlord takes a “retaliatory eviction” when a tenant asserts her rights, e.g., calls a housing authority to report violations of the housing code. You should find your laws and read them. You should be able to find the laws online by searching your state or county and “civil procedure eviction.” If you can’t find anything, then visit your local law library (usually at the courthouse) and ask for help finding the relevant sections of the law. Read the laws carefully because they should list the various defenses available to tenants who want to dispute an eviction.

Meet with an attorney. You should think of meeting with a lawyer if you want to dispute your eviction. A lawyer will be familiar with the applicable law and can advise you about whether or not you want to fight the eviction. Look for an attorney who handles landlord-tenant disputes. You can find a lawyer by visiting your state’s bar association, which should run a referral service. Although costs may be a concern, you should realize that most states now allow lawyers to offer “limited scope representation.” Under this arrangement, the lawyer does not take over the whole case. Instead, she will do only the tasks you give her. For example, a lawyer could offer advice or look over your court papers to see that they were filled out correctly. If you are interested in limited scope representation (often called “unbundled legal services”), then ask the lawyer over the phone whether or not she offers this service.

Drafting an Answer

Receive the complaint. If the tenant does not move out after receiving an eviction notice, then the landlord typically must bring a lawsuit. The landlord will start the suit by filing a complaint in court. You will be served a copy of the complaint and a summons. Pay attention to the following information on the complaint/summons: Entry date Answer date Hearing date

Understand defenses and counterclaims. If you want to legally fight an eviction, then you need to understand what defenses or counterclaims you can bring. These will differ by state, so be sure to read your state law or meet with a lawyer. Among the more common defenses are: The landlord evicted the tenant using “self-help.” Most states limit the ability of a landlord to physically remove a tenant or to lock the tenant out of the premises. A landlord may only remove a tenant with a court order. The landlord did not give proper notice. State law regulates the steps a landlord must take to properly evict a tenant. In Illinois, for example, a landlord must first serve a notice to quit and then wait a certain number of days before filing a lawsuit. If the landlord does not follow these steps, you can have the eviction suit thrown out of court. The tenant has a legal defense for not paying rent. In most states, every rental agreement carries an implied promise that the rental unit will be habitable. If a landlord fails to make required repairs after being notified, then a tenant can use this failure as a defense for nonpayment. Be aware, however, that many states do not allow tenants to withhold rent in this situation. Instead, they allow tenants to make repairs and then deduct the cost of the repairs from their rent. The tenant did not violate the lease. If the landlord claims a tenant violated a provision in the lease, then the tenant can argue that his conduct did not constitute a violation. The landlord is motivated by discrimination. Federal law prohibits discrimination on the basis of race, gender, religion, national origin, disability, and family status (including children under 18 and pregnant women). Some states also prohibit discrimination on the grounds of sexual orientation. If the landlord is motivated by a discriminatory purpose, then the tenant can fight the eviction. The landlord is retaliating against the tenant. When a tenant complains to the government about a code violation in the apartment or building, then it is illegal for the landlord to retaliate with an eviction notice.

Draft an answer. Before attending the hearing, you may want to draft an answer and file it with the court. An answer is not required in every state. However, it is a good idea to file one because it allows you to respond the landlord’s allegations before appearing in front of the judge. In your answer, you can deny any factual claim the landlord makes. You can also assert defenses. You should check with your courthouse to see if they have a form that you can use. Many courts now offer “fill in the blank” forms for standard lawsuits such as landlord-tenant disputes. In Massachusetts, tenants can use a form found at http://www.masslegalhelp.org/housing/legaltactics1/answer-how-to-defend-your-eviction-case.pdf. If your court does not have a form, then you can look for sample answers on the web. If you can’t find anything, then use the Massachusetts form as a guide to type up your own answer (do not use the form itself).

File. After you complete the answer, you should make several copies and take them all to the court clerk. Ask to file the original and have the clerk stamp all of your copies. Remember to file before the answer date listed on the summons. You will probably have to pay a filing fee. The fee will vary by court or state. In Nevada, you must pay $71 to file. If you cannot afford the fee, then ask the court clerk for a fee waiver form and fill it out.

Serve notice on the landlord. You need to send the landlord a copy of your answer. Ask the court clerk for what are acceptable methods of process. Often, you can have the answer served personally by the sheriff or a professional process server. Sometimes you can also have someone mail notice to the landlord. If you have to use a process server or the sheriff, then you will have to pay a fee. Process servers typically cost around $45-75 per service. Sheriffs will make service for a little less. To find a process server, look in your phone book or search online. If you cannot afford to pay for a server, then you can often have someone 18 or older serve, provided that they are not a party to the case. Generally, you may not serve the papers yourself.

Attending a Court Hearing

Gather evidence. You need to have a reason for fighting the eviction, and you must prove this reason to the judge. For example, if the landlord argues that you used heating “unreasonably,” then you might want to document how cold the weather has been, or that the landlord has not fixed your leaky windows. You can take pictures of the windows or print off a weather report for the applicable period. If you are withholding rent because the apartment is uninhabitable, then your case will be stronger if you have objected to the apartment conditions already. Be sure to gather copies of any emails or letters that you sent to the landlord complaining about the conditions. If you think that you are being discriminated against illegally because of race, religion, or sexual orientation, then try to document why. Write down conversations you have had with the landlord and preserve letters or emails. You will need to show your landlord’s bias. Also be sure to bring copies of all documents filed with the court. You should also bring a copy of the lease and a spreadsheet of rental payments, along with receipts.

Dress appropriately. How you look in front of the judge will impact your credibility. Men should wear long pants with a belt, a collared shirt tucked in at the waist, and a tie. If you have a dress jacket, wear that as well. Women should wear a skirt or long pants with a nice blouse or sweater. Women may also wear a dress. In no circumstances should you wear shorts, hats, halter or see-through tops, belly shirts, flip flops, baggy pants, or clothing that has offensive imagery or writing.

Arrive early. You should give yourself plenty of time to find parking and go through any security at the courthouse. Aim to arrive in the courtroom at least 15 minutes before your case is set to start. When you enter the courtroom, you should give the clerk or deputy your name and inform him or her that you are here for the hearing.

Present your side of the story. At the hearing, you and your landlord will each present your side of the story. The landlord will typically go first. The judge may ask questions. Throughout the hearing, the judge will be focused on whether the landlord has established a valid reason for evicting you and whether or not you have proved your offered defenses. If you use exhibits or other documentary aids, you should ask the judge if you can show them to her before handing them up. You may also have witnesses testify on your behalf. Only use a witness who has relevant, first-hand information about the case. A witness should not testify about something someone else told her. Instead, all testimony must be based on personal observation.

Wait for the ruling. At the close of the evidence, the judge will decide whether you must move out of the property and whether you owe the landlord money. If you win, you will probably have to write the order for the judge to sign. After the judge signs the order, you will give the landlord a copy. There should be blank forms in the courtroom for you to use.