Defenses to Eviction

Many Americans face eviction every year. Local laws provide eviction defenses for tenants, such as a notice requirement, the possibility of paying partial rent, and more.

This article explores a few common defenses to an eviction.

Common Reasons for Eviction

Landlords cannot evict tenants just because they want to evict them. They also cannot use what's known as self-help, such as changing the locks, to accomplish an eviction. They need a reason and a court order. They must go through their local eviction process.

A few common reasons for eviction include these lease violations:

• Nonpayment of rent
• Illegal activity
• Damage to the rental unit (beyond normal wear and tear) caused by the tenant

Common Defenses to an Eviction Lawsuit

An eviction defense can help you stay in your rental unit if you are facing eviction. A few of the most common eviction defenses include:

• Improper notice, meaning the landlord did not follow proper procedures with the eviction notice
• The landlord's failure to maintain the rental unit
• The landlord's acceptance of partial rent
• Housing discrimination
• Misuse of security deposit

Improper Notice

State laws vary on the requirements for giving proper notice of an eviction. Eviction defenses related to these requirements often include:

• The Notice to Quit does not provide the tenant with the right amount of time to cure the default.
• The landlord filed a Notice to Quit for nonpayment of rent, yet you paid the rent.
• The notice does not include the amount of rent due or a reason for the eviction.

If the landlord does not use proper notice, the tenant may have a defense to eviction. The tenant can raise this defense during eviction proceedings.

Acceptance of Partial Rent

If the landlord accepts partial rent, knowing the tenant is not complying with the lease agreement, they cannot evict the tenant during that rent period.

Failure to Maintain the Rental Unit

Every apartment has an implied habitability warranty that ensures the rental unit is livable. Your landlord is responsible for ensuring your rental unit meets all local housing codes and making repairs when it doesn't. If your landlord has failed to perform proper upkeep of the rental unit, you may have a defense in an eviction case.

First, you should give your landlord written notice of the defect, giving them a reasonable amount of time to repair it. If they do not, you can hire someone and pay for the repairs, then deduct the cost of the repairs from the next month's rent. Check your state laws, as some states restrict this practice.

Retaliatory Eviction

This type of eviction action occurs when the landlord takes action against a tenant activist. The right to organize is a basic tenant right. The tenant has a valid retaliatory eviction claim if the landlord seeks to evict the tenant for the following:

• Reporting code violations
• Requesting that the landlord maintain the rental property

If you use retaliatory eviction as your defense, the landlord has to prove, by clear and convincing evidence, that the eviction has nothing to do with the tenant's protected activities.

Constructive Eviction

Constructive eviction occurs when residential rental property is in an uninhabitable condition. When rental property is not habitable, the tenant does not have full use and possession of the rental property. The law treats this as an eviction.

To use this defense, the tenant should give the landlord written notice of the defects and give the landlord a reasonable amount of time to fix the problems. If the landlord does not fix the issues within a reasonable amount of time, the tenant may leave the rental property without responsibility for payment of rent.

Housing Discrimination

The Fair Housing Act prohibits discrimination based on protected characteristics in housing and real estate transactions. These characteristics include:

• Race
• Ethnicity
• Religion
• National origin
• Familial status
• Marital status
• Sexual orientation
• Disability

The act covers discrimination in all housing-related transactions, including rentals and leases.

Misuse of Security Deposit

In many states, such as California, some tenants can use misuse of security deposit as an eviction defense. In California, landlords could not use a security deposit to settle COVID-related rental debt during tenancies between March 1, 2020, and September 30, 2021.

Get Legal Help

If you are facing an eviction or unlawful detainer action, you should speak to a local landlord-tenant law attorney before you vacate the rental property. They can give you legal advice and help you prepare defenses to eviction.