Eviction Process: Know Your Rights and Defenses

Eviction is the legal process by which a landlord may force the removal of a tenant from the rental property based on the claim that the tenant breached the lease, usually due to the tenant failing to pay the rent.

The tenant has the right to defend against eviction by proving the landlord breached the lease by, for example, failing to make necessary repairs or engaging in unlawful discrimination against the tenant.

 Introduction

Millions of Americans face eviction with nowhere to go every year.

Facing eviction is more than just a legal or financial challenge—it’s an emotional and personal upheaval that can render the person vulnerable or even homeless.

By understanding your rights, exploring your options, and focusing on small, manageable actions, you can regain a sense of control and move toward stability.

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 and the tenant’s rights and defenses opposing eviction.

Eviction Process: Overcoming Challenges with Clarity

Eviction is a legal process in which a landlord removes a tenant from the rental property. Although the reasons for eviction may vary, the situation usually gets personal between the landlord and tenant.

A tenant eviction is a humiliating process that can overwhelm the renter. However, there are safeguards in place to make the process fair and ensure the tenant’s voice is heard by the court.

Common Reasons for Eviction

 Non-Payment of Rent: Most common and often due to financial hardship.

• Breach of Lease: Unauthorized occupants or other lease violations such as violating the “no-pets” clause.
• Lease Expiration: Staying beyond the agreed lease term.
• Property Damage: Damage exceeding normal wear and tear.

Statistics: Annual Eviction Filings: In 2023, landlords filed more than 1.1 million eviction actions, which amounted to 10.5% more cases than in the previous year.

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 strict technical requirements the landlord must comply with to obtain an eviction order from the court against the tenant.

Landlord’s Substantial Compliance With The Eviction Process is Not Enough

What is known as “substantial compliance” will not be sufficient. Suppose you can find technical defects in how the eviction papers and notices were written or served. In that case, 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 Tenant’s 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 procedural and substantive (legal cause) requirements.

“Substantial” compliance is usually not good enough. So, if the tenant’s attorney can find defects in the landlord’s notice of eviction to the tenant or if the notice was not served properly, the tenant 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 which states the legal cause for the eviction.

 Three-Day Notice To Pay or Quit

If the paper is from the landlord, it is probably a notice they must give you before filing a formal 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, the landlord may file his eviction lawsuit in court and serve you with a copy of the lawsuit.

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.

Suppose the paper is from the sheriff’s or marshal’s office. In that case, 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. Some deputies will physically remove you from the property if you don’t.

What you do depends on what kind of notice you receive

If the paper is a landlord’s notice and you can 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 move your family and belongings as soon as possible.

If you leave anything behind, it might cost you storage fees to get it back.

Suppose you didn’t receive a summons before receiving the vacate order.

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 the 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 against 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 that the landlord evicted you to “punish you” for exercising your legal rights, you might have a good case for retaliatory eviction.

Retaliatory Eviction

If the landlord sues 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 the 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 with a rent control law, the landlord might have to prove “good cause” to evict. Under some state and municipal laws, 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. (Your lawyer will need to check specifically with the rent-control laws in your state)

Relief from forfeiture

Even if the tenant loses the lawsuit, the judge might give the tenant “relief from forfeiture” if the tenant pays what is owed to the landlord.

Relief from forfeiture is an equitable remedy in which the court has the discretion to grant or withhold relief to either party. Such equity is generally exercised in favor of the tenant, provided 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 to serve you with the summons and complaint, which commences a formal court action. If the landlord wins and obtains a “judgment” against you to vacate the premises, and you still refuse, the landlord must request that law enforcement 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, they will 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?

As a tenant, you may file a lawsuit on your own 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 of evidence – 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 the case.” 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 an eviction defense lawyer. If your lease or rental agreement requires 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. At the very least, see if you can receive legal guidance and legal representation from your local legal aid clinic.

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 if the landlord’s actions are found to be malicious, the renter could be awarded significant damages, even 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.

The Landlord May Seek Money Damage In Addition To Your Physical Removal

In addition to evicting you, the landlord might also obtain a money 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 bank account.

This might be a good time to consult with a bankruptcy lawyer.

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 represent 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 going through financial hardship.

Unable To Afford Hiring A Lawyer – Other Options

Every State and Most Large Cities Have 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.

Eviction Rates In America

The following cities have some of the highest eviction rates. According to EvictionLab.org, a research unit at Princeton University, South Charleston, South Carolina, has the highest eviction rate, with 16.5% of its population experiencing eviction. For current eviction trends, see their 2024 eviction rate report.

Statistics: As the Wall Street Journal reported, eviction filings over the past two years show dozens of cities and surrounding metropolitan areas are up 35% or more compared with pre-2020 norms.

Financial Strategies to Stay Afloat

1. Apply for Rental Assistance

There are government programs and non-profits that offer emergency rental help.

2. Negotiate Payment Plans

Talk to your landlord about partial payments or extended deadlines. They’d instead do that than go to court.

3. Use Community Resources

Food banks and different types of local shelters can help with the basics so you can get back on your feet.

4. Prioritize Expenses – Cutting Costs

Focus on the essentials—housing, utilities, and food. Consider cutting non-essential expenses temporarily. (Read our article on being frugal during times of financial difficulty).

Emotional Resilience: Caring for Yourself During Eviction

Eviction isn’t just a logistical and financial problem—it’s an emotional one. You must begin taking steps to care for your mental health as you search for alternative housing. You can start with self-care by learning how to practice self-compassion.

1. You’re Not Alone

Millions of people face eviction every year. Contact friends, family, or support groups to share your feelings and gain perspective. With so much uncertainty and political upheaval in the United States, many financial experts predict the next four years, beginning in 2025, will be a time of economic challenges for most Americans.

2. Focus on Small Wins

Set daily goals, like organizing paperwork or applying for assistance. Completing small tasks can boost your confidence.

Statistic: Health Consequences: Evictions are associated with adverse health outcomes, including increased stress, depression, and adverse birth outcomes among pregnant women.

3. Practice Self-Care

Simple acts, like meditating, eating balanced meals, and taking walks, can help ease stress.

4. Take Breaks When Needed

It’s okay to avoid escalating worry and regroup when you’re feeling anxious or stressed. These types of emotions are natural and are a signal from your brain to step back and clear your space from such negativity.

Remember, you don’t have to tackle everything at once.

5. Seek Professional Help

Counselors or therapists can provide tools to manage anxiety or depression. Sliding-scale options make this accessible to many.

Preventing Future Evictions

Once you’ve navigated the current challenge, these steps can help safeguard against future issues:

1. Know Your Lease

Know the terms and obligations to avoid accidental violations of the lease.

2. Save an Emergency Fund

Even small amounts can add up over time. It’s recommended you have at least three months of emergency savings.

3. Communicate Early

If you’re running low on funds, tell your landlord before you fall behind. They may have options for you to consider.

4. Keep Resources Handy

Keep a list of local resources for quick access in an emergency.

Five Common Misconceptions About the Eviction Process

 Misconception #1: “Landlords can evict tenants immediately.”

Reality: Not true. Eviction is a legal process requiring notice, court filings, and a judge’s order. Tenants have time and opportunities to respond.

Misconception #2: “You must leave as soon as you receive an eviction notice.”

Reality: Not true. An eviction notice is the start of the process, not the end. Tenants can often negotiate or contest the notice in court.

Misconception #3: “Tenants cannot defend against eviction if they haven’t paid rent.”

Reality: Defenses like uninhabitable conditions or retaliatory eviction can be raised, even in cases of non-payment.

Misconception #4: “Legal help is unaffordable for tenants.”

Reality: Free or low-cost legal aid is available to low-income tenants through clinics, nonprofits, and law school programs.

Misconception #5: “Eviction erases your legal rights as a tenant.”

Reality: Tenants retain their legal rights throughout the process, such as the right to due process and to challenge improper eviction notices.

 Watch Attorney Ian Corzine Discuss What To Do If You Get Evicted:

Five Common Fears Related to the Eviction Process:

Fear #1: “I’ll be homeless immediately after an eviction notice.”

Reality: The process takes time, and resources like rental assistance and emergency housing can help bridge the gap.

Fear #2: “I’ll lose all my belongings during the eviction.”

Reality: Tenants can retrieve their belongings even after an eviction. Landlords must follow legal procedures for property removal.

Fear #3: “Going to court is too complicated; I’ll automatically lose.”

Reality: Tenants seeking legal advice and presenting valid defenses can delay or stop eviction. Legal resources simplify the process.

Fear #4: “Eviction will permanently ruin my credit and rental history.”

Reality: Eviction judgments can affect credit but are not always reported. Tenants can negotiate with landlords to avoid court records.

Fear #5: “Landlords can force me out by changing locks or shutting off the utilities.”

Reality: Self-help evictions (lock changes, utility shut-offs) are illegal. Landlords can get into significant trouble and open themselves to heavy fines and civil liability. Tenants can take legal action if a landlord attempts these tactics, and depending on the facts, you can recover money damages from the landlord.

Conclusion: Moving Forward

Eviction is one of the most challenging experiences. But it’s not the end of the road. You can overcome this and become stronger by educating yourself, getting help, and focusing on practical and emotional strategies.

You have rights. You have options. Most importantly, you can get through this. Remember, behind every great challenge, on the other side is an opportunity waiting to be opened – so long as you don’t give up on yourself and your dreams.

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