Moving In and Out

How to Defend Against an Eviction

Once you receive the notice to vacate your residence and even before you receive the notice from the constable for your court hearing, you should seriously consider whether you have any defenses available to the eviction suit. As mentioned, in a nonpayment of rent eviction case, the only way to redeem yourself is to pay the past due rent. Most courts will not consider cases of hardship (e.g., unemployment, illness, auto repairs).

However, if you are in a government subsidized housing program such as Section 8, you should call your local legal aid organization because there are many more defenses available (i.e., you may have a defense to nonpayment of rent if your public housing authority did not reduce your portion of rent after losing your job).

Defenses will either be procedural (i.e., the eviction suit was improperly brought before the court), or substantive (the landlord’s case is invalid because you haven’t violated any of the terms contained within the lease agreement).

Procedural defenses, while effective, only end up stalling the eviction process. Even though the case will be dismissed on a technicality, dismissal does not prevent the landlord from correcting the mistake and then filing another lawsuit.

Procedural defenses will allow you more time either to settle with your landlord, to prepare a better defense or to give yourself extra time to find a new place to live.

Examples of Procedural Defenses Include:

  • Lawsuit was filed too early
  • Notice to vacate (or pay or quit) is unclear
  • Notice to vacate was delivered improperly (e.g., left on front
    door step)
  • Notice to vacate was issued too early
  • Tenant was never given opportunity to cure (correct)

Substantive defenses are truly case breakers, but are also terribly involved. Allegations such as landlord retaliatory actions or discrimination are difficult to prove and will often require substantial evidence and witness testimony to convince the court. These cases will most certainly prompt the landlord (if he or she loses) to file a quick appeal in an attempt to protect their good name and to take the matter one step further. So, while very effective and longer lasting than a procedural defense, more time and effort will most certainly be involved.

Examples of Substantive Defenses Include:

  • Retaliation
  • Discrimination
  • Uninhabitable living conditions
  • Repairs or maintenance not performed
  • Health, safety or security negligence