- Legal EditorHenry Dahut, J.D.
Henry Dahut, J.D.
Attorney - Legal Publisher - Educator
Henry Dahut is a licensed California trial attorney. Over the course of his 30-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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Millions of Americans face eviction with nowhere to go every year. If you know your legal rights, you can fight the eviction while you make other arrangements. This article looks at the landlord-tenant eviction process.
Common Legal Reasons For Evicting A Tenant
The most common reason for tenant eviction is failure to pay rent. Assuming you have signed a written lease, it will contain the amount of rent due each month and when it is due.
Eviction of Tenant During Lease
A lease is for a fixed length of time and is binding on both parties. The lease legally requires the tenant to pay the rent on time, and the landlord is legally required to provide you with a habitable premise for the term of the lease. T
The landlord cannot evict a tenant before the lease expires without legal cause. Even if the landlord has found a renter for your unit at a rental rate substantially higher than what you are currently paying.
Eviction for legal cause is permitted even if you are on a fixed-term lease. Legal causes for eviction are triggered should you substantially breach a material condition of the lease, such as failing to pay rent, or causing substantial damage to the property. The landlord will then have legal cause to evict you upon giving you written legal notice to evict which most states set at three days.
The eviction process generally takes about thirty days to enforce the removal of a tenant from the rented property.
Landlords Must Strictly Follow State Eviction Rules & Procedures
The landlord must strictly follow the legal process requirements to evict you from the premises. In other words, there are technical requirements the landlord must comply with to convince a judge that an eviction order should be issued removing the tenant from his property.
Substantial Compliance Not Enough
What is known as “substantial compliance” will not be sufficient. If you can find technical defects in how the eviction papers and notices were written or how they were served, you can defeat the landlord’s eviction case, which will require the landlord to start the legal process all over again.
Delay Can Work In Tenants Favor – Additional Time To Prepare Case
Since landlords are given special privileges in eviction lawsuits – e.g., they “move to the head of the line,” getting to trial before other cases are filed earlier – they must “strictly comply” with all legal requirements. “Substantial” compliance is usually not good enough. So if the tenant’s attorney can find defects in landlord’s notice of eviction to the tenant or if the notice was not served properly she might defeat the landlord’s case.
Determine the Type of “Eviction Notice” you were served.
In most instances, the tenant must first receive a written “Notice of Eviction,” which is sometimes referred to as a notice “To Quit,” initiated by the landlord and states the legal cause for eviction.
Three-Day Notice To Pay or Quit
If the paper is from the landlord himself, it is probably a notice he is required to give you before he can file a lawsuit. It might say, “Pay the rent or vacate in 3 days” or the like. If you fail to do either during the stated time, he may then file his eviction lawsuit in court.
If the paper is from the court, it is probably a summons notifying you that the landlord has filed an eviction lawsuit against you. You now have a chance to defend yourself in court – if you act quickly.
If the paper is from the sheriff’s or marshal’s office, it is probably an order to vacate that the landlord has obtained after suing you. The order will probably state a time by which you must leave. And you’d better do it. If you don’t, some deputies will come by and physically throw you out.
What you do depends on what kind of notice you receive
If the paper is a landlord’s notice and you are able to comply with it (e.g., by paying the overdue rent), do it. If the form is a summons, see a lawyer right away. Don’t put it off because the time limits for responding to a summons are very short – as little as three days, and your lawyer might need some of those 3 days to prepare legal papers for you.
If the Document You Received Was an Actual Court Order to Vacate
If the paper is an order to vacate from the sheriff’s or marshal’s office, you should probably move your family and your belongings as soon as you can.
If you leave anything behind, it might cost you storage fees to get it back. Suppose you didn’t receive a summons before you received the order to vacate.
In that case, you should see a lawyer right away because a lawyer might be able to have the mandate to vacate set aside on the grounds that you never had a chance to defend yourself in court.
Legal Defenses To Eviction
Some legal doctrines prevent the landlord from evicting the tenant, even if the tenant has not paid the rent.
Breach of Implied Warranty of Habitability
If the landlord has violated the “implied warranty of habitability” by failing to make required repairs that render your premises uninhabitable, this can be an excellent defense of the eviction lawsuit.
If you have reported the premises condition of your property to the local housing authority and informed them that the landlord has refused to make the necessary repairs, a health inspector may inspect your premises and order the landlord to make the repairs and issue the landlord with a monetary citation.
If it can be established the reason for the landlord evicting you was to “punish you” for exercising your legal rights, you might have a good case for retaliatory eviction.
Retaliatory Eviction
If the landlord’s reason for suing is to punish the tenant for exercising some legal right, the tenant might have a good defense based on the legal doctrine of retaliatory eviction. Public policy favors tenants who choose to exercise their legal rights and to do so without fearing retribution from a vengeful landlord.
Breach of Implied Warranty of Quite Enjoyment
A tenant has a right to the “quiet enjoyment” of their rental property. This right includes enjoying and inhabiting their property without undue interference from the landlord or other types of interference such as excessive noise and obnoxious odors resulting from the landlord failing to manage and eradicate such nuances.
The Property is Under Rent Control
If the property is in a community that has a rent control law, the landlord might have to prove “good cause” to evict. If the landlord gave a 30-day notice terminating a month-to-month tenancy but later accepted rent covering a period beyond that 30 days, he might have “waived” the right to evict on that notice.
Relief from forfeiture
Even if the tenant loses the lawsuit, the judge might give the tenant “relief from forfeiture” if she pays what is owed to the landlord.
Relief from forfeiture is an equitable remedy in which the court has equitable discretion to grant or withhold relief to either party and which such equity is generally exercised in favor of the tenant so long as the tenant acts quickly and in good faith to make the landlord whole again.
Self Help
Self Help Is Strictly Prohibited
Landlords must use the judicial process to evict a tenant. The eviction action is also called an unlawful detainer action in many states. Assuming you are being evicted for nonpayment of rent, you must first receive a written notice from the landlord to pay or quit.
The next step is the service of a summons and complaint to you. This commences a formal court action. If the landlord wins and obtains a “judgment” against you to vacate the premises, and you still refuse to vacate, the landlord must request law enforcement to remove you.
The landlord is strictly prohibited from using any form of self-help, even at this stage of the eviction process.
If you refuse to vacate the premises, once the police arrive and they order you to vacate, if you refuse, the police can arrest you for failing to comply with a court order. This is known as contempt of court pursuant to a writ of removal.
Should I represent myself or hire a lawyer?
You may file a lawsuit yourself and represent yourself in court, but that is not a good idea. People who represent themselves (particularly in such a complex area of law) often lose.
Non-lawyers are often confused by court procedures (especially by technical rules – like “hearsay” – about what evidence is admissible), and many judges have little patience with this.
Even if you can present your case clearly and adequately, judges often think, “No lawyer? Either this person is a deadbeat who can’t even afford to hire a lawyer, or his case is so bad that no lawyer would take it.” This is why even a lawyer needs a lawyer. A wise old lawyer once said, “A lawyer who represents himself has a fool for a client.”
If you can do so, get a lawyer. If your lease or rental agreement has language requiring the losing party in any lawsuit to pay the winner’s attorney’s fees, you might be able to get your lawyer’s fees back from the tenant if you win.
Landlords and Insurance Companies Prefer Avoiding Risk
Both the landlord and the landlord’s insurance company seek to avoid legal exposure of this kind because there is the risk that the renter could be awarded significant damages, even possibly punitive damages.
Losing The Eviction Case
Court Orders Removal of Tenant
If you lose the eviction case, the court will issue a “writ of removal” ordering a law enforcement officer to physically remove you from the premises.
Usually, the court will allow you to physically vacate the landlord’s property between three and five days. However, you may be able to persuade the judge to issue a “stay” in your favor, which extends the period for another week or two to give you more time to find another place to live.
Landlord May Seek Money Damage In Addition To Physical Removal
In addition to evicting you from the premises, the landlord might also obtain a judgment against you for monetary damages. This might cover unpaid rent, damage to the premises, the landlord’s attorney fees, filing, and processing costs. If you don’t pay the judgment, the landlord might try to collect it by garnishing your wages or putting a lien on your card or bank account.
Rent Control Areas – Public Housing
If you live in a rent-controlled apartment or your landlord is a public housing partner under the federal mandates of Section 8, the landlord will likely need to prove good cause to evict you.
Suppose the landlord gives you proper notice terminating your month-to-month tenancy (usually 30 days) but later accepts rent covering a period beyond those 30 days. In that case, he might have “waived” the right to evict on that notice.
This legal process is called relief from forfeiture and comes up more than you might imagine.
If your money troubles prevent you from affording a lawyer, you can still express yourself and present the defenses to your eviction on your own. A skilled eviction defense lawyer is your best course of action, but this option is probably not available to you if you are in financial hardship.
Unable To Afford Hiring A Lawyer – Other Options
Legal Aid Clinics
Every State Has Legal Aid Clinics
If you can’t afford to retain an attorney, you may still obtain free legal advice through a local Legal Aid Clinic. They provide free consultations, and you may be eligible to have a lawyer appear with you at the eviction hearing, assuming you can financially qualify for such assistance.
Law School Clinics
Free Legal Services For Low-Income People and the Homeless
Many law schools have public outreach programs called law school legal clinics. This can be a good option if you need legal advice but cannot afford to retain counsel. Most states require that law students work under the direct supervision of a licensed attorney.
Online Eviction Defense Lawyers
Consider Consulting With An Online Eviction Defense Lawyer For Advice.
