Responding to a Landlord’s Eviction Attempts
Although some defenses to eviction are available, landlords can nearly always remove you eventually for non-payment of rent. Often your best option when faced with an eviction is to buy yourself enough time to find alternate housing that is both affordable and adequate, with minimal disruption to your life.
Be wary of attorneys or other professionals who claim that they can keep you in an apartment indefinitely. These services are often rip-offs. Some will take your money and never file any papers on your behalf. Others will file inadequate defenses or improper bankruptcy petitions.
You Can Only Be Evicted After You Are Given the Right to a Fair Trial. While the legal steps for an eviction vary from state to state, you have the right to a court hearing before you are evicted. Lockouts, utility shut-offs, dumping your possessions on the street, and other eviction-related harassment are illegal in all states, even when you are behind on your rent. When landlords take these actions, seek legal assistance because you have rights to get back into the apartment and be compensated for your damages. Your legal case will be stronger if you let the landlord know in writing that just because you are locked out or the utility is shut off, you still want to stay in the apartment.
Most court eviction actions take place very quickly, perhaps in as little as two weeks. In some states, the process can take considerably longer, particularly if there is a reason that you should not be evicted. Appeals are also possible if you lose.
If you lose an eviction case, the court will usually order that you move out immediately. If you do not move out, court officials or the sheriff will come to put you and all your belongings out. This may happen only days after the court ruling (even on holidays and weekends), but can take weeks, depending on the state.
The Notice to Quit. In most states, the first step in an eviction is a notice from the landlord telling you that you must pay your rent or move within a short time, often called a “notice to quit” or a “notice to vacate.” This notice is not a court order to vacate, but instead is your landlord telling you to leave. But you do not have to leave just because you get a notice to quit. Until a court orders you to leave, it is illegal for a landlord to change your locks, put your things out on the street, or to call the police to force you to move out. Instead, landlords must go to court after the time allowed in the notice to quit has expired. (In a few states, this notice is not required and then the landlord may go directly to court.)
Generally, the notice will give you a specified number of days in which to vacate the premises before the landlord can start an eviction action. In many states, the notice must also give you the right to stay in the apartment by paying all owed back-rent within a specified number of days. In other states, there is not that right, and the landlord can ask the court to evict you no matter how much you offer to pay.
If the notice to vacate is for nonpayment of rent or other charges only, a federal law called the CARES Act, passed during the COVID-19 pandemic, requires the landlord to give you at least 30 days’ notice—but only if your rental property either has a federally backed mortgage loan or participates in a federal housing program such as Housing Choice Vouchers, low-income housing tax credits, or certain other programs subsidized through the U.S. Department of Housing & Urban Development (HUD) or U.S. Department of Agriculture. As it can often be difficult to figure out whether a property is covered under this requirement, you may wish to seek help from an attorney or other housing advocate if your landlord gives you a notice to vacate in less than 30 days for nonpayment of rent or charges only.
Sometimes the landlord will also claim other violations of the lease, such as excessive noise, damage to the premises, or keeping a pet forbidden by the lease. These violations can usually be cured by taking care of the underlying problem within the allotted time. Certain types of lease violations—usually serious violations like engaging criminal activity on the premises—cannot be cured and the tenant becomes legally obligated to vacate within the (usually very short) notice period.
Negotiating with the Landlord. After receiving a notice to move out, talk to the landlord. If you are having trouble paying your monthly rent in a lump sum, some landlords agree to accept weekly or biweekly installments. Landlords sometimes also agree to lower the rent, at least temporarily. You might get an agreement to lower the rent for a few months with your promise to move out in a few months. A court case is expensive for the landlord, and it will often give you extra time to move out if you agree to do so. You may be in the best position to evaluate how amendable the landlord will be to a delay or modified rent payments. If you negotiate an agreement with your landlord, try to have the agreement in writing (even in an exchange of emails or other electronic messages) in case you need to prove it later.
Rent Assistance. Various sources of temporary rent assistance can also buy you some time. Emergency rental assistance may be available through the local public assistance office or community action agency. Church groups and private charitable organizations are other potential sources of financial assistance to pay back-rent or give you a loan for your moving expenses and money for a new security deposit.
Tenants who do not already receive a government housing subsidy can apply for various kinds of government housing assistance, including special rental assistance, state or nonprofit housing programs, Section 8 subsidized housing, and traditional public housing. Waiting lists are quite long. Urgent circumstances, such as homelessness, illness, or small children, sometimes move applicants higher on waiting lists. The first place to contact for more information is your local or regional housing authority and your local legal services office.
Additional Rights of Public Housing Tenants. Public housing tenants have a right to a grievance procedure with the local housing authority before the housing authority can initiate an eviction action. This is an opportunity to resolve the reason for the eviction, first in a meeting and then in a hearing at the housing authority. Even if the grievance procedure is unsuccessful, you still have the right to defend against eviction in court.
The First Steps in an Eviction Action. Eviction actions have different legal names in different localities, such as “forcible entry and detainer” or “unlawful detainer.” This book uses the term “eviction action.” The landlord will send you a complaint and a summons to appear in court—generally by a process server or a local official. The court hearing often is within as few as five days after you are served the summons. You must act promptly.
If you disagree with a landlord’s complaint, or if you have any defenses, immediately contact the court and file an answer or counterclaim, either with the help of an attorney or on your own. Many landlord-tenant cases are held in less formal housing courts or state district courts, so that it is easier for you to file your own answers or counterclaims without using a lawyer or sophisticated legal terminology. In some courts, you may be able to appear and present your defenses orally at a hearing, without a written response—but in other states, you must file a written response or the court will enter a default judgment against you without a hearing. Especially if you do not have legal assistance, be sure to read the summons carefully and understand what the rules and requirements are to appear and defend against the eviction in your jurisdiction.
Attending the Eviction Hearing. Typically, you should attend the eviction hearing—whether or not you have already moved out. Even if you believe you have no defenses, attend the hearing to make sure you know what is going on, such as that the landlord does not misstate the amount of rent you owe or ask that you be put out by a quicker than normal process. You may also be able to ask the judge to give you additional time before moving if there are special circumstances such as illness of a family member, small children, older tenants in the family, or unavailability of emergency shelter. The judge will be more likely to grant additional time if you are able to offer at least partial rent or have made efforts to find other housing.
Raising Defenses. At the eviction hearing, be prepared to present your defenses, including relevant documents and witnesses, if any. When you receive the summons, also check with the court clerk whether you have to raise these defenses in a written answer before the hearing. Your defenses will be jeopardized if you do not appear at the hearing.
Legal advice may be necessary to understand your best defenses. In many communities, eviction clinics or legal pamphlets on tenants’ rights are offered by the local legal services office, the bar association, or the court clerk.
If your defense involves the procedure by which the landlord instituted the eviction hearing, your defense will be most compelling to a court if the landlord’s error caused you confusion, misled you about your rights, or caused you concrete harm. Did the landlord’s notice confuse you about how much rent was needed to stay in the unit or the date by when to pay it? Did the court summons give you less time to prepare than the law requires? Did the landlord fail to let you know that you could stay in the unit if you paid back-rent (if that is the law in your state)?
A defense to eviction is if the landlord’s purpose in evicting you is to retaliate against your organizing with other tenants in the building or complaining about conditions to government officials or the landlord. This defense often is not available under state law if you are also behind in your rent payments.
In most states, another defense is that the property is not in livable condition or properly maintained, such as that the apartment has been cited for housing code violations. Ask the housing inspector how to get a proper copy of the code violation report to bring to court with you. For other problems, you might take pictures or videos. For lack of adequate heat, you might have a disinterested witness testify. Many states require that you give prior notice to the landlord of the bad conditions before using the conditions as a defense—put the notice in writing, send it with a return receipt, keep a copy, and bring everything into the court hearing.
Appeals. If the court orders an eviction, you have the right to appeal the case to a higher court. This may buy you more time to move in a more orderly fashion. The threat of an appeal may also allow you to negotiate more time with the landlord. You should only consider an appeal if you honestly believe you have a case. If you lose an appeal, you may owe additional court costs or your landlord’s attorney fees. Frivolous appeals can even result in sanctions being imposed against you.
An appeal may require that you pay certain filing fees or other court charges. Sometimes these fees can be waived if you can show you cannot afford to pay them. However, regardless of your income, you will probably have to post a bond to cover the rent while your case is on appeal. Usually this can be accomplished by paying future rent into escrow as it comes due.
Steps to Take After the Court’s Eviction Order. Even before the court orders your eviction, start making plans to move. After the order, you should quickly finalize your plan for new housing to avoid being forced out into the street. In some states, but not all, you will get notice of an actual date you will be forced out of your housing. Typically, you will only have a very short period of time. Consult the sheriff, a court clerk, or your local legal services office about how long you are likely to have.
If you have not vacated by the time specified in a court eviction order (unless the landlord in writing gives you more time), a sheriff or a similar official may move your belongings onto the sidewalk or, in some jurisdictions, place them in storage. You will then have to pay moving and storage costs before you can get the property back.
The Landlord’s Suit for Back-Rent. After you move or are evicted (or even as part of the eviction action), landlords will sometimes sue for back-rent or property damage and the landlord’s attorney fees. This should be treated like any other lawsuit to collect a debt, as discussed earlier in Chapter 4. In the lawsuit, you should raise, if applicable, substandard housing conditions, miscalculation of the amount owed, illegal attempts by landlords to seize your property, a landlord’s attempt to lock you out or a shut-off of utility service, or any improper debt harassment.
Special Eviction Defenses for Military Families. If you or your spouse is on active duty with the military, the court must postpone an eviction case upon your request if your ability to pay the agreed rent is materially affected by your being on active duty. The court can also revise the lease to allow you to take in a paying subtenant, revise the due dates for the rent, or make other orders that will preserve your tenancy.
Using the Bankruptcy Process to Stop Evictions. Your rights are limited if you wait to file bankruptcy after a court has ordered your eviction. If instead you file a chapter 13 bankruptcy before the court’s eviction order, you may be able to stay in the residence by paying the rent arrearage under a payment plan that could extend for several months or even years. But you will have to make payments both for current and the back-due rent.
Even then, this right is limited. You must have a “long-term lease.” “Long-term leases” are leases for federally assisted housing programs, manufactured home parks lots, leases for some rent-controlled apartments, or where a state law prohibits landlords from refusing to renew residential leases unless there is a serious ground for termination. But filing a bankruptcy petition does not in itself give you a long-term lease. Even with a long-term lease, you must also have a right under your state’s laws at the time you file the bankruptcy to stay in the residence if you make all back-due payments—even though the chapter 13 bankruptcy gives you extra time to make those back payments.
If instead you file a chapter 7 bankruptcy before a court has ordered an eviction, the bankruptcy will delay your eviction, usually for three to five months while the bankruptcy case is pending. This is usually shortened if the landlord goes to the bother of asking the bankruptcy judge to do so. After the delay, the landlord can proceed with the eviction, but you will not owe back-rent.
If you are in public housing or a similar rental where a government agency is the landlord, the law gets more complicated. A chapter 7 bankruptcy filing should keep you in your unit without paying back-rent as long as you continue to make new rent payments as they become due. But back-rent will still be due if fraudulently incurred, such as where you intentionally misrepresented your income to the landlord.