There are many reasons that a landlord may have for evicting a tenant. If the tenant has missed too many rent payments in a row and shows no ability or will to make up the shortfall in a timely manner, the property owner can move to evict them. If the tenant is committing other breaches of the lease, such as hosting pets or other persons who are not authorized to reside on the premises, they are likewise subject to eviction. If the tenant is engaging in illegal activity, such as prostitution or the selling of drugs, while living at the property, the landlord can move to evict them.
The Link Between Eviction and Unlawful Detainer is Defined by the Law
When the owner of the property makes a move to evict a tenant for engaging in any of the above-listed activities, this is known as an unlawful detainer action. The landlord is making a legal motion to enforce the proposition that a certain person or persons has access to a rental property and is using that access to engage in illegal or criminal activity. To make the charges stick, the landlord will be expected to provide solid proof that such illegal activities are actually taking place.
Even if there is no actual criminal activity involved, the person named in the suit is still in default of either their rent or has failed to abide by the terms of the lease in some other manner. As a result of this default, the owner of the property now seeks to evict this tenant with the knowledge and assistance of the court. This is the beginning of the eviction and unlawful detainer process.
How Does the Eviction and Unlawful Detainer Process Work?
The landlord must first file an official petition with the court and pay a small fee, after which the tenant must be served with the official documents that have been filed. An unlawful detainer action is purposely designed to move quickly through the court system. However, if you are the tenant who is named in the action, you still have certain rights that must be respected. For example, in some jurisdictions, after being served with the papers, you have the right to ask that the case be tried in front of a jury. In this case, it would then be up to a jury to decide if the eviction is legitimate.
Once the Paperwork Has Been Filed, What Happens Next?
Once the paperwork for unlawful detainer has been filed, a time for the official court hearing will be scheduled. Once you receive documents from the court, you will be required to make an official reply. If this reply is not received by a certain time, the case will be decided by default in favor of the property owner. In some areas, a hearing on the charges may be required. If you do not attend this hearing, the case will be decided in favor of the landlord. You and your landlord are required to attend this hearing so that the court can determine the merits of the case and make a ruling.
What Happens If the Case is Decided in Favor of Your Landlord?
If the case should be decided in favor of the owner of the property, they will normally receive a judgment for the amount of money you owe them for rent. This amount will be supplemented by an additional judgment for court costs and attorney fees, all of which you are liable to reimburse the landlord for out of your own pocket. The property owner will also be granted a writ of legal possession for the premises in question.
The court will usually wait a few days to issue the writ. This is done in order to give you a sufficient amount of time to exit the premises. Once the writ is issued, it will be executed by local police in order to make sure that the tenant is no longer on the premises. Once this is certain, the landlord will have full legal possession of the property.
Ending a Lease or Rental Agreement FAQs
Ending a lease or rental agreement is a process that is usually accompanied by a great deal of ill feeling between you and your landlord. If the landlord has filed a notice of eviction of against you, it may be worth your time to fight it. At the very least, you deserve to know how to defend yourself against the claims of your landlord so that your credit and tenant histories are not damaged. Here is a list of ending a lease or rental agreement FAQs that may prove useful to you in your hour of need.
Is It Legal to End a Lease Before It Expires?
It is normally not legal for you to end your lease before it expires, nless you have reasons for doing so that are protected by state or Federal law. You may legally do so if you plan on moving to a nursing home or will be in a hospital for an extended period of time. You may also end a lease early if you are required to do so by the terms of your service in the military.
If you leave under any other type of circumstance that is not authorized by law, you may find yourself being sued by your landlord to collect damages that they incurred after you left. This may include income lost from the apartment sitting vacant, the difference in rent between what you paid and the new tenant pays, and the amount that it cost for the landlord to find a new tenant.
Can a Landlord Ask You to Move Out When Your Lease Expires?
A landlord may have any number of reasons for requesting that a tenant vacate the premises after the expiration of the lease. They are legally well within their rights for doing so. Although a lease will usually specify a certain amount of time to be given to a tenant to find a new residence, most states will mandate that the time be officially set at 60 days.
Can You Continue to Pay Rent after Your Lease Has Expired?
In some states, if you choose to continue paying rent even after your lease has expired, this may indicate that you and your landlord have agreed to move to a new monthly basis. If this is the case, the landlord basically has to honor the terms of the original lease and can only make changes to the arrangement after giving you 30 days’ prior notice.
Continuing to pay your rent past the end of the original lease may also result in you and your landlord coming to a new lease agreement. At this point, the landlord is entitled to change the terms of the lease, for example by raising the rent. If you agree to these terms, this will become the new agreement between you.
How Can You Legally End a Monthly Rental Agreement?
Most states will require the tenant to give their landlord a written notice of their intention to vacate the premises 30 days before doing so. You can usually do so at any time of the month. However, if the terms of your rental agreement state that you can only give notice on a certain day of the month, you will have to wait until then to do so.
Is Your Landlord Required to Give Back Your Security Deposit?
In most cases, a landlord is legally required to return your security deposit when you vacate the premises. However, there are exceptions to this rule. The owner of the property may legally deduct the amount of any unpaid rent from the deposit. They may also use all or part of your deposit to fix any damage you may have done to the area that is noticeably in excess of acceptable wear and tear.
If this is the case, the landlord will normally be required to send you an itemized list of these deductions along with the balance of your rent within 14 to 60 days after you leave the property.
Do you feel that your recent receipt of an eviction notice from your landlord is based solely on a desire for revenge? Are they proceeding illegally due to actions that you may have taken to try to get them to improve living conditions at your residence? If you feel that this is indeed the case, you have the right to fight against your impending eviction in court.
What is Landlord Retaliation?
Illegal retaliation is any action that the owner of a property may take against a tenant for reporting any sort of unfair or unsafe action to a higher authority, such as a court. If your landlord attempts to evict you after you have reported unsafe living conditions, such as faulty electrical wiring or an insect infestation, this kind of action is considered an illegal retaliation and can be reported to the court.
What Kind of Actions by Landlords Can Be Considered Retaliatory?
There are a number of actions, including illegal retaliatory evictions, that you can bring to the notice of a court if and when they occur. These actions may include, but will not be limited to, the following:
- Refusing to consider a renewal of your lease or rental agreement.
- Threatening to file a notice of eviction.
- Actually filing a notice of eviction.
- Raising your rent without prior notice, especially if this is contrary to the terms of your lease or rental agreement.
- Refusing to perform or provide basic maintenance services on your behalf.
Make Sure You Understand Your Rights Before Your File Your Claim
It’s important for you to fully understand the rights you have in this matter before you file your claim. Different states will have very different laws when it comes to defining and proceeding against illegal retaliatory evictions on the part of property owners. Some states will allow you to make such a claim on a certain number of carefully defined and specified charges. However, other states will not normally be so quick to give you a hearing on any but the most specific and limited grounds.
What Kind of Actions on a Landlord’s Part Can Be Considered Retaliatory?
There are a number of actions that a landlord can take against a tenant that may fall within the legal scope of illegal retaliatory evictions. Some of these actions may include, but will not be limited to, the following:
- Raising your rent without notice, especially to an extremely high level that they are counting on you not being able to pay.
- Terminating or refusing to renew your rental agreement or lease.
- Canceling your cable access, draining the pool on the property, or other petty actions that are designed to harass you or restrict your use or enjoyment of the premises.
- Filing an eviction lawsuit against you if you decide to stay and fight against any of the above or other similar actions.
How Can You Prove That Your Landlord is Retaliating Against You?
There are certain actions on the part of a property owner that are regarded as illegal retaliation in almost every state. If you have repeatedly complained about unsafe or unsavory conditions or have finally brought these conditions to the notice of local authorities, a landlord cannot legally file to have you evicted.
If you have conducted repairs to your apartment and then deducted the cost of these renovations from your rent, this is an action for which a landlord cannot legally penalize. You also are protected in most states from any sort of retaliation that might follow from joining or organizing a tenants’ union in response to the landlord repeatedly ignoring your requests for positive action on your grievances. If the response of the property owner to any of the above-listed actions is to harass you or attempt to have you evicted, you can point to their response as constituting illegal retaliatory behavior.
How Difficult Will it Be to Prove Your Case against Your Landlord?
In many areas, the burden of proof will be on the landlord to prove that they were not retaliating against you by filing to have you evicted after you exercised any of the above listed rights. In nearly half of all states, the landlord will actually be presumed by the court to be illegally retaliating against you if they evict you within a six month window after you report wrongdoing to the authorities or exercise any of your other rights.
If they still wish to proceed with the eviction, they are certainly within their rights to do so. However, they will have to prove to the court that their action is based on some other reason that has nothing to do with retaliation against you for any of the above-named reasons.
defenses to eviction
Receiving a notice of eviction can be a very stressful experience. This is especially true if you were attempting to resolve your differences with your landlord and were not expecting to suddenly receive such a notice. If you feel that you are being evicted without sufficient cause, or if the landlord is violating your civil rights by doing so, there are several ways by which you can defend yourself. This article will discuss some of the most common defenses to eviction so that you can learn what you need to know in order to proceed with your case.
How to Build Your Defense Against Improper Notice of Eviction
One of the most common defenses to eviction is the argument against the improper notice. Every state has its own set of requirements for the notice of eviction. This applies with especial force to the method by which you received your notice of eviction. The landlord must provide you with sufficient notice before they file a court action.
If they do not do so, you may have a sufficient defense to overturn the eviction, even if you have not yet paid the money you owe for rent. If the court accepts this defense, the landlord may still move to evict you. However, they will be forced to begin the process all over again from the beginning.
Acceptance of a Partial Rent Payment Might Get You Off the Hook
Sometimes you may be able to get your landlord to accept a partial payment, even while they feel that you are in violation of the terms of your rental agreement. If you can get them to agree to take such a payment, you can use this as a possible defense against eviction. The right of the landlord to evict you during that particular payment period would thus be waived. However, some landlords have already thought of this in advance. Some property owners will insert a clause into the lease requiring you to waive your own rights to use a partial payment as a defense against eviction.
Your Landlord’s Failure to Maintain the Premises is a Good Eviction Defense
One of the most effective defenses to eviction is the failure of your property owner to maintain the premises in good order. To be able to make use of this defense, you will first need to inform the landlord in writing that there is definitely some cause for concern. For example, the entire building may be plagued by faulty or dangerous wiring or infested with rats or other pests. The notice you give to your landlord must leave them a reasonable amount of time to address the problem and correct it.
If you receive no reply from the landlord, you have the option to do the repairs yourself or hire a professional to do the work on your behalf. You can then deduct the cost of the renovation from your rent. However, some states have enacted strictures on this tactic to the extent that you may not spend more than the cost of one month’s rent on these repairs.
You Can File a Claim Against a Retaliatory Eviction
If the owner of the property takes action to evict you because you may have served notice to the government of various illegal or unethical actions on their part, you can file a claim against a retaliatory eviction. This will be valid if you have first reported the landlord for code violations or a failure to make necessary repairs.
You Can Quit the Property Under the Terms of a Constructive Eviction
Under certain extreme circumstances, you may find it necessary to evict yourself from the property you are currently living in. This will occur when the property you rent is in such poor shape that it is essentially uninhabitable. If you have served notice of these dire conditions to the landlord and received no response, you may make a claim that you have essentially been deprived of the use and possession of this property.
In a sense, you have already been evicted by default due to the inability or unwillingness of the landlord to make the necessary improvements. You may serve notice of such to the landlord that gives them a certain amount of time to make the stated changes. If they do not do so, you may leave the property with no obligation to honor the remainder of the lease agreement.
The Fair Housing Act is Designed to Protect Against Unwarranted Eviction
If you feel that you are being purposely discriminated against because of your race, ethnicity, sex, religion, disability, or pregnancy, you can have recourse to filing a grievance under the Fair Housing Act. This act provides tenants with a measure of protection against unfair eviction and other offenses committed against you in all manner of housing situations, including while renting or leasing a home or apartment.