Eviction Defenses

Landlords: Be Ready for These Eviction Defenses

If you are about to evict a tenant or have already started the process, it’s important to understand the defenses tenants can use to fight back, so you can be prepared to win.

5 Types of Eviction Defense 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 our 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 Attorney 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 Violated the Terms and Conditions of the Lease (or added new ones)

While many lease terms are geared towards protecting landlords, of course leases contain items that create responsibilities for landlords. Failure to meet your obligation under the lease could be used as an eviction defense. 

For example, leases typically state that landlords are required to provide a safe environment and make repairs when notified by the tenant. If a tenant gave you proper notice regarding a needed repair, you failed to make siad repair and then the tenant withheld rent (for which you’re now trying to evict them), they tenant may have a solid defense that could defeat your eviction. 

Before you commence an eviction proceeding, make sure you’ve not violated any terms of the lease that could come back to bite you. Also, if you are trying to evict a tenant for violating a lease term that you added after the original lease agreement was signed and did not get the consent of the tenant, such as raising the rent or requiring them to perform certain maintenance, a court is likely to deny your eviction request.  

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. 

You Employed Improper Self-Help Eviction Tactics

Even if you have a valid reason for eviction, if you use tactics that are prohibited by law, such as changing the locks, removing a tenant’s property, turning off the heat, water or electricity or entering the premises illegally, a judge may deny your request for eviction. 

When to Get Legal Help

As with any legal dispute, the sooner you speak with an attorney the better. An experienced attorney can help you avoid legal pitfalls and resolve tenant issues more quickly and inexpensively than trying to fix everything on your own. 

One of the best parts of having a legal plan from LegalShield is that for a tiny monthly fee you have the ability to call your attorney and get unlimited advice on an unlimited number of business matters. As a LegalShield member, it’s always a good time to get legal advice. Whether you need an attorney to help you fight an eviction defense or you just have a quick question, you’ll never get a big, unexpected legal bill at the end. Having a real estate attorney on call is a great way to protect your valuable real estate investments. 

Speak with an Attorney to Ensure You're Handling Eviction Legally
Ask Questions and Get Answers from an Attorney in Your State