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5 Types of Eviction Defenses Tenants May Raise
The following list of eviction defenses are provided to not only help you successfully navigate a current eviction, they also serve as a reminder of actions you should avoid when the landlord and tenant relationship is in a good place, to proactively prevent problems down the road.
You Did Not Follow the Proper Procedure in Your State
If you end up at an eviction hearing, a tenant can claim that one more more of your actions did not follow state or local laws regarding eviction process. The rules and regulations you must follow vary from state to state. For example, if you’re trying to evict a tenant for failure to pay rent, some states allow you to serve notice by mail and give the tenant only 3 days to pay up or move out. Other states require you to serve notice in person and give the tenant 7 or 10 days. Here are a few examples of procedural defenses.
- Your notice to quit did not provide the proper time to pay back rent or cure some other lease violation
- You did not follow state law for proper service of the notice to quit
- Your court fillings have errors or other procedural defects
If a tenant is successful in raising a procedural defense, the court may throw out your case and you’ll have to start the eviction process from the beginning. To avoid wasting time and unnecessary delays, be sure you know and follow the laws in your state. If you’re unsure how to proceed, speaking with a provider lawyer from LegalShield is an affordable way to get the legal advice you need to evict a tenant as quickly as possible.
You Inadvertently Created a New Tenancy
If a tenant stays past the end of their lease, they are considered a holdover tenant. If a landlord accepts rent payments from a holdover tenant, the tenant has the legal right to occupy the property for some period of time. The length of the new rental term is determined by state law and the courts and may determine when a landlord can begin the eviction process.
On the other hand, if you have a holdover tenant and you do not accept additional rent payments, the person may be considered a trespasser, allowing a you to evict the person more easily and quickly.
You are Attempting a Retaliatory Eviction
If a tenant is doing something they have a right to do, such as reporting you to a regulatory agency for discrimination, and you try to evict the tenant shortly thereafter, the tenant can claim that the eviction was retaliatory in nature and therefore invalid. Are you trying to evict a tenant shortly after any of the following actions by your tenant?
- Reporting you for code violations
- Reporting you for discrimination
- Exercising their rights to sublet or have a pet on the premises in accordance with the lease
- Asserting tenants rights under local, state or federal law
- Paying rent into an escrow account, instead of directly to you, during an ongoing dispute
Courts will generally assume eviction was retaliatory if the landlord takes action against a tenant within a certain time period, typically 60 days to one year from the instigating action.