Tenant Defenses to Eviction

Many Americans face eviction every year. Still, eviction is a legal process, and local laws provide tenants with eviction defenses. These include notice requirements, the option to pay partial rent, and more.

This article covers a few common eviction defenses. Facing an eviction and potentially losing your housing is destabilizing and disruptive to your entire life. But you don’t have to figure it out alone. A local landlord‑tenant attorney can help evaluate defenses and guide your next steps.

Common Reasons for Eviction

Landlords cannot evict tenants just because they want to. They also cannot use what’s known as self-help, such as changing the locks, to evict a tenant. They need a reason and a court order. They must follow the 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

Some 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 proper eviction notice. Eviction defenses related to these requirements often include:

• The Notice to Quit does not give the tenant the required 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 must ensure your rental unit meets all local housing codes and make repairs when it doesn’t. If your landlord fails to properly maintain the rental unit, you may have a defense in an eviction case.

First, give your landlord written notice of the defect and a reasonable amount of time to repair it. If they do not, you can hire someone to make the repairs, then deduct the cost 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.

Proving landlord retaliation can be tricky. An attorney in your area can review the facts, timing, and documentation to help show that your landlord’s actions legally qualify as retaliation. Find local legal help.

Constructive Eviction

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

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

If you are facing an eviction or unlawful detainer action, speak with 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. With an experienced attorney on your side, you have a better chance at negotiating a favorable outcome, like more time, payment plans, or avoiding an eviction on your record.

FindLaw’s directory of landlord-tenant lawyers can get you started. Enter your city or ZIP code for a list of legal professionals in your area. Because state and local laws are relevant, your attorney should be licensed in the state where you live. Your search results will also show important details about prospective attorneys, like ratings, areas of practice, and whether they offer free consultations.