Legal Defenses To Getting Evicted

Tenants have certain defenses they may use in an eviction lawsuit:

Landlords must strictly comply with all technical requirements

Because landlords are given special privileges in eviction lawsuits – e.g., they “move to the head of the line,” getting to trial before other cases filed earlier – they must “strictly comply” with all notice and other requirements. “Substantial” compliance usually is not good enough. So if the tenant’s attorney can find defects in how notices were written or how they were served, she might defeat the landlord’s case.

Legal doctrines that prevent evicting

There are some legal doctrines that prevent the landlord from evicting (even if the tenant has not paid the rent). If the landlord has violated the “implied warranty of habitability” by failing to make required repairs (see “Maintenance & Repairs”), this might be a good defense to the eviction lawsuit. If the landlord’s reason for suing is in fact to punish the tenant for exercising some legal right, she might have a good defense of “retaliatory eviction” (See “Discrimination & Retaliation”). If the property is in a community that has a rent control law, the landlord might have to prove “good cause” to evict. If the landlord gave a 30 day notice terminating a month-to-month tenancy but later accepted rent covering a period beyond that 30 days, he might have “waived” the right to evict on that notice.

Relief from forfeiture

Even if the tenant loses the lawsuit, the judge might give her “relief from forfeiture” of your lease if she pays what she owes.

Should I represent myself, or get a lawyer?

You may file the lawsuit yourself and represent yourself in court, but that is not a good idea. People who represent themselves (particularly in such a complex area of law) often lose. Non lawyers are often confused by court procedures (especially by technical rules – like “hearsay” – about what evidence is admissible), and many judges have little patience with this.

Even if you are able to present your case clearly and properly, judges often think, “No lawyer? Either this person is a deadbeat who can’t even afford to hire a lawyer or his case is so bad that no lawyer would take it.” This is why even a lawyer needs a lawyer. A wise old lawyer once said, “A lawyer who represents himself has a fool for a client.” If you can possibly do so, get a lawyer. (If your lease or rental agreement has language requiring the losing party in any lawsuit to pay the winner’s attorney’s fees, you might be able to get your lawyer’s fees back from the tenant if you win.)

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