The Eviction Legal Process for Tenants
If you are fighting an eviction, you should strongly consider hiring or at least consulting a lawyer to give you assistance that is tailored to your situation. Each state has its own laws, and the situations that can give rise to an eviction vary dramatically. The stakes are often high because you may not only lose your home but also incur significant amounts of debt and suffer damage to your credit rating. This is just an overview of how the process generally unfolds.
Some of the main grounds to fight an eviction involve a landlord mishandling the process. Perhaps they accepted rent following a Pay or Quit notice but then filed for an eviction anyway, or perhaps they refused to accept rent that you offered within the period provided by a Pay or Quit notice. Perhaps the landlord brought an eviction proceeding for non-payment of rent when you lawfully withheld rent because the unit was uninhabitable or you needed to make repairs. Or the landlord may have discriminated against you or retaliated against you for exercising a protected legal right. There also may be technical violations of the notice process, although these usually only serve as a temporary defense until the landlord complies with the requirements.
The Process of Eviction Lawsuits
A landlord cannot simply change the locks and remove your belongings from the premises. They need to go through the formal eviction process, culminating with the assistance of a sheriff or marshal to remove you if they win. Tenants who are victims of illegal evictions often can get compensation or even remain on the property in some cases.
Eviction lawsuits are heard in a formal trial court in some states, in a small claims court in others, or in either venue in still others. If the landlord can choose which venue to use, their choice may depend on how much rent you owe, which can take the case outside the monetary limit of small claims court. Larger landlords are also more likely to use a formal trial court and hire an attorney to go after a tenant, especially if the tenant has funds to pay a judgment.
In addition to the monetary limit, the differences between small claims court and regular court include evidence rules. These are much looser in small claims court, where you can introduce hearsay and evidence that does not have a formal foundation. However, regular court gives you the option to engage in “discovery,” a way to find out more about the landlord’s position before trial. It is also easier to get a case dismissed or limited through pre-trial motions in regular court.
The Complaint and Your Answer
The complaint is the document that a landlord uses to start an eviction proceeding. It contains the grounds for your eviction and the remedies that the landlord wants the court to order, such as moving out, paying back rent, and compensating for damages caused by remaining on the property. Any other issues, such as property damage, usually must be addressed in a separate proceeding. The landlord must provide you with the complaint and the summons, which is a document that says that you have been sued and must appear in court on a certain date. This is known as service of process.
If a landlord fails to serve process correctly, you can probably have the case thrown out. Another way to get the case dismissed based on a landlord’s mistake is to prove that the landlord used the wrong notice, such as using an Unconditional Quit notice when a Pay or Quit notice would have been appropriate. The landlord will need to start over after serving the right notice. If the landlord filed for an eviction before the period to fix the violation expired, this also can be a basis for dismissal. However, these tactics usually just delay the lawsuit rather than preventing it entirely, since the landlord will probably fix the technical flaw and file again.
Before you go to court, you will need to file an answer to the landlord’s complaint. This can include both denials and affirmative defenses. Denials are statements that the landlord’s allegations are incorrect, such as if you are being accused of violating a no-pets clause, but it is actually your neighbor who has a pet. Affirmative defenses are arguments that would block an eviction even if you are technically violating the lease. These should be supported by facts, such as an explanation of how you paid less rent because you deducted the cost of a major, necessary repair that the landlord should have handled.
Pre-Trial Discovery
Discovery is a process that occurs only in regular court. It consists of depositions, interrogatories, requests for admissions, and requests for documents. The goal is to give each party information that would support their position at trial, to which they would not otherwise have access. A deposition is an interview in which you can question the landlord or a witness under oath. Interrogatories are printed questions that you can send to the landlord to resolve issues such as who actually owns the property. Requests for admissions are specific questions asked under oath that require the other side to either admit or deny the truth of a statement. Requests for documents can give you evidence such as letters by a landlord to tenants or records of repairs.
What Happens If You Win
If you win, the landlord cannot evict you, and you may also receive compensation for court costs and fees. If you won because the landlord discriminated or retaliated against you, you may receive damages as well. If you won because your unit was uninhabitable, the court may take more steps to help you and monitor the landlord after the judgment. You may pay rent into a court account while the landlord makes the repairs, and then the rent will be released to the landlord when an inspector certifies that the unit is habitable and you can return there.
What Happens If You Lose
Evictions rarely can be stopped unless the tenant can persuade the judge that they would suffer an extreme hardship, and they can pay any back rent owed, in addition to the landlord’s court costs and future rent. However, these arguments usually do not succeed. A tenant may be able to get a postponement (or “stay”) if they are appealing the eviction, or until their financial circumstances improve. In some states with cold winters, you may be able to get the eviction postponed on that basis. To get a postponement, you still need to prove that you would suffer an extreme hardship and at least can continue paying the rent.
If the eviction is not stopped or postponed, the landlord probably will act quickly in asking a law enforcement officer to remove you from the property. The officer will give you a notice to let you know when you can expect to be removed, so you can plan to move before that date. This is usually a matter of days.
Bankruptcy and the Automatic Stay
Tenants who successfully file for bankruptcy under either Chapter 7 or Chapter 13 cannot be evicted under the automatic stay. The landlord needs to ask a federal bankruptcy judge to lift the stay before they can proceed with the termination notice. There is an exception if the tenant is endangering the property or using illegal drugs, which allows the landlord to take action without going to bankruptcy court.
Filing for bankruptcy after a judgment in an eviction proceeding generally does not stop an eviction. In a few states, if the eviction is based on non-payment of rent, filing for bankruptcy after an eviction judgment may stop the eviction if the tenant takes certain steps within 30 days of filing for bankruptcy.
