Common Reasons for Eviction and Their Defenses

• The best defense is that you paid the rent. To prove this, you will need to have a receipt from your landlord if you paid with cash, a copy of a cashed check, or the receipt stub of a money order.  
• Another defense exists if you made a timely attempt to pay rent, but your landlord refused to accept the rent or rejected the rent. You will need to be able to prove this for example with a post office receipt, an audio recording of your attempt to pay and the landlord's rejection, or a money order with the correct date on it.
• If you tried to pay, but the landlord did not receive the rent, and you paid the rent as soon as you knew about the problem, you have a defense to eviction for non-payment. You will need proof of the payment and you will need to explain the problem that led to the non-payment to the Court at the trial on the eviction. 

If there was a custom of accepting late rent, late rent payment defeats eviction.

To use this defense, you must prove that:

• your landlord had a custom of accepting rent late,
• your landlord did not tell you that he would no longer accept late payments, and
• you paid within the customary period.

You will need to be able to prove the custom, for example, with a large number of past receipts showing rent has always been accepted on a certain day.

You have a defense to eviction for non-payment of rent if you properly used the repair and deduct remedy to make repairs to your home that the landlord refused to make. 

• If the landlord refuses to accept the payment, and if your landlord tries to evict you, you may need to prepare your defense. A landlord can evict a tenant for nonpayment of rent. A tenant has a right to the habitability for the leased premises. A tenant may ask the landlord to fix necessary repairs, affecting the health and safety of the property.

• A tenant reduces the risk of eviction for nonpayment rent when the tenant is not liable for the damages or problems. 

• A necessary repair is necessary for the tenant to live in a habitable residence or something that affects health and safety. 

• By following the proper procedure and collecting evidence as part of your right to repair and deduct expenses for necessary expenses. 

• Collect your evidence and any other proof including all your receipts and copies of payment(s), photos, copies of payment for rent, any estimates, or other agreements or contracts to fix the repair problem. Include any copies of any communications between you and your landlord - include your first letter to the landlord notifying the landlord of the need for necessary repairs and your second formal demand letter.

• The landlord should not be able to evict you if you have done the repair and deduct process in the correct way. 

• Check your lease. If it's a month-to-month lease, renewal terms or other conditions or provisions about the notice needed to give the tenant or landlord to move out of the residence varies. You may not be evicted or have to go to court. It is possible that the landlord or tenant will decide to move out. A landlord or tenant must first give notice to the other party before a party is legally required to make a tenant move.

If you were unable to live in your house during the period of time that rent was due because your landlord was completing a major repair, you have a defense to non-payment of rent.  You will need proof the unit was uninhabitable at the time rent was due because of the landlord.

• If your landlord took your rent after the Notice to Vacate, but before the eviction judgment, you have a defense to eviction for non-payment of rent. A landlord may still take rent after the Notice to Vacate, but the landlord is not required to accept late rent. If the landlord takes full or partial payment of rent after the Notice to Vacate, it defeats the eviction.
• You will still need to attend the eviction trial and bring proof that your landlord accepted full or partial payment of rent after the Notice to Vacate. 

To evict you, a landlord must prove that there was a violation of a specific section of the lease agreement. Consider whether:

1. the landlord interpreted the lease or evidence wrong,
2. the landlord has enough proof through documents and witnesses to prove a violation,
3. you have proof that you did not violate the lease.

Read "The Lawsuit, the Lease, and the Violation," below, for more information on how to evaluate your landlord's case and your defense. 

Also, if a landlord brings a second lawsuit about the same lease violation, the doctrine of "res judicata" may prevent the landlord from doing so. If you think this situation applies to you, read about "Res Judicata" below.

It is important to know that a judge may deny an eviction even if there is a lease violation. You can ask the judge to exercise the judge's "equitable discretion" to deny an eviction. At the trial, you should explain to the judge why fairness or justice require that the eviction be denied. This defense works best when the lease violation is relatively insignificant, did not hurt the landlord, was not intended or was beyond your control, and you tried to comply with the lease.

To evict you, the landlord must prove that you violated the lease. Specifically, the landlord has to prove you violated the section or term stated in his lawsuit. Read for yourself, in the original lease, the section or term that's stated in the lawsuit. Then, ask these questions to yourself: 

• Does the lease agreement say what the Rule for Possession or Rule for Eviction says?

• Have the words been changed, even slightly?
• If so, does the change mean something different than the words in the original lease agreement? 

The lawsuit should also say how you violated the lease.  The landlord should have included specific facts that, if proven, would show a lease violation. 

For fairness, the landlord's proof at trial is limited to the lease violations the landlord stated in his lawsuit. You should object to the judge if the landlord tries to bring up new violations at the trial. When you object, the judge may ask you for the basis or reason for your objection.  Tell the judge that the landlord is attempting to bring up new issues that were not included in the eviction paperwork. 

Look at the landlord's lawsuit and your lease. Consider these questions:

• Did you really violate the lease?
• Is the landlord's interpretation of the lease or the evidence wrong?
• Does the landlord have enough proof through documents and witnesses to prove a lease violation?
• Do you have any witnesses or documents showing that you did not violate the lease?

Opportunity to Correct the Violation

Some leases may require that the landlord give you a warning and time to correct certain rule or lease violations before the landlord can bring an eviction. Check your lease.

• Under the law, a judge should not evict you unless your landlord proves that it was “more likely than not” that you violated your lease. 
• Remember, the landlord's evidence or proof at trial is limited to the lease violation stated in the eviction suit.  For example, if the landlord's eviction suit says that you have unauthorized occupants, the landlord should not testify or give evidence about other issues, like disruptive behavior.
• Bring witnesses or evidence, like documents, that show you did not violate the lease. 
• It is your responsibility to get witnesses to trial, whether voluntarily or by a subpoena. 
• The judge can deny an eviction even if there is a lease violation.  If the lease violation is insignificant, unintentional, or if you attempted to correct it, you can ask the judge to exercise "equitable discretion" and allow you to remain in the home. 
• For more detailed information, click to see our tab titled "Trial on Eviction".

Have you stopped a prior eviction lawsuit for a lease violation by your landlord? If you have, your landlord's current eviction may be barred by the doctrine of "res judicata." Res judicata means that the case has already been decided and cannot be brought again. If your landlord has brought a second lawsuit for the same lease violation, or for violations that could have been brought at the time of the landlord's first lawsuit, you tell the judge that the landlord's lawsuit is barred by the judgment in the prior (earlier) lawsuit.

For example, let's say your landlord attempted to evict you in March for having an unauthorized pet. At the eviction trial, your witnesses and evidence showed that the pet was only visiting with a friend of yours. Let's say the lease does not prohibit visiting pets. The judge denies the eviction.  Your landlord cannot later file a second eviction based on the same incident in March. 

Let's say your landlord files another eviction in June, again claiming that you have an unauthorized pet, because your friend returned to visit with their pet. The landlord's new eviction suit also states that you violated the lease by having an unauthorized pet back in March.  You can ask the judge to dismiss the second (June) eviction case based on "res judicata."

• Damage or Destruction of Property
• Criminal Activity
• Unapproved Occupants
• Causing Disturbances
• Bad Housekeeping
• Unapproved Pets
• Unapproved Changes to Property
• Expired Lease

Damage or Destruction of Property 

Damage caused by a tenant may not be good cause for an eviction. Damage caused by the tenant's negligence, such as by a guest or household member, may not be good cause for an eviction.  

Damage

A landlord can sue for a money judgment to remedy damages in a lawsuit separate from an eviction case. Since money damages lawsuits are required to be part of an "ordinary proceeding," a tenant whose landlord is attempting to get a money judgment for damage in an eviction proceeding can file an "Exception of Unauthorized Use of Summary Proceedings," to ask the judge to dismiss the damages issue from the eviction case.  The landlord can still file a new lawsuit for the money to fix the damage or destruction.

Destruction

The landlord may only evict for total destruction of the premises by a natural disaster or fire. The destruction must not be the fault of the tenant or the landlord.  The landlord may not evict for partial destruction that is not the fault of the tenant. Partial destruction is a defense to eviction. You can also read Flood and Fire Victim's Rights as Tenants for more information on tenants rights when the rental is damaged.

Criminal Activity 

If the landlord has alleged a crime has been committed, there are two issues at play: criminal charges and eviction. If a person has been charged with a crime, it is in their best interest to discuss the eviction case with their criminal defense attorney. If they do not have a criminal defense attorney, it is in their best interest to hire one. While this information is no substitute for legal advice, it presents some issues to be considered when criminal activity is the basis for an eviction suit.

No person charged with a crime can be forced to give evidence against themselves. This means that any person charged with a crime does not have to testify about the alleged crime at an eviction trial. And if any person charged with a crime does testify about an alleged crime at an eviction trial, any testimony given at the eviction trial can be used against the person in the criminal case.

If a tenant misuses a rental property, uses a rental property for a purpose other than that for which it was leased, or in a manner that may cause damage to the property, the landlord may be able to terminate the lease. Using a home for criminal activity may constitute such misuse.  On the other hand, if a tenant is merely charged with criminal activity unrelated to the leased property, the landlord may not have good cause for eviction.

At trial, the landlord must prove the legal ground for the eviction. Police reports of incidents or alleged crimes without proper authentication cannot be used as evidence for evictions. "Proper authentication" means that the police officer who responded to the call and wrote the incident report must be present in court and testify about the incident. If the police officer is not present in court, a person facing eviction based on a police report should object to any discussion of the police report and ask the Court to exclude the police report. 

Unapproved Occupants 

If unapproved occupants are the reason for your eviction, make sure to read the general information on Lease Violations in the drop-down menu above.  In general, check the terms of your lease.  Does it have any specific rules about visitors? Does it limit the number of days a tenant may host overnight visitors? If not, consider whether the "unapproved occupants" are more like long-term visitors. Are they family members or friends? Do they intend to leave by a certain date? 

If the unapproved occupant intends to remain permanently in the leased property, can you ask your landlord to add that person to the lease? Even if your landlord will not agree to do this, you may be able to ask the judge to exercise "equitable discretion," if, for example, your personal situation has changed since you entered the lease.

Causing Disturbances 

If your landlord is trying to evict you for causing disturbances, keep in mind that there may be a duty to other tenants.  A landlord who allows one of his tenants to disturb his other tenants may be in breach of his obligation to ensure that his tenants are in peaceful possession of their property. If you think that a neighbor may be partly responsible for the issue, you could try to informally resolve the problem before the eviction trial. If not, you may be able to bring other witnesses to the eviction trial who can testify on your behalf. Remember, it is your responsibility to get witnesses to trial.

Bad Housekeeping 

If your landlord is trying to evict you for bad housekeeping, you should check your lease to see what it says about cleanliness and safe conditions. In general, mere "bad housekeeping," could probably be corrected before an eviction trial.  If there is a more serious issue that impairs the health and safety of tenants, the landlord may have good cause for an eviction.  However, if circumstances beyond your control have led to unclean or unsanitary conditions inside the rented property, you should present the facts of those circumstances to the judge. If possible, attempt to correct the issue or ask the judge to exercise "equitable discretion," to give you an opportunity to fix the problem.

Unapproved Pets 

In some cases, you may be able to fix the problem of unapproved pets before an eviction.  Check your lease to see whether pets are allowed under specific conditions. For example, if your landlord requires a pet deposit, but you have not paid one, try to honor your responsibility under the lease. If your animal is a service animal, and not a pet, you should make sure that you have the documents you need to prove that to the Court. 

Unapproved Changes to the Property 

If unapproved occupants are the reason for your eviction, make sure to read the general information on Lease Violations in the drop-down menu above. Check the terms of your lease.  What limitations or restrictions are there on making changes to the property? Do the changes stated in the eviction lawsuit exceed the limitations or restrictions?  In cases where changes to the property are at issue, the size, scope, and nature of the changes may be important to the judge's decision on whether the changes are a violation of the lease.  Are the changes at issue small and limited to one part of the home? Can the property be quickly and easily restored to its previous condition? Or are they major changes that will be time-consuming and expensive to reverse?  In addition to eviction, keep in mind that landlords may have other remedies against tenants who make unapproved changes to the property.

Expired Lease 

Please click on the tab titled "Expired Lease or No Cause" for more information.   

• A lease with a specific end date or length of time is a "fixed term lease". Generally, fixed term leases end, or "terminate," on the expiration of the fixed term.
• If a tenant intends to vacate the property upon the expiration of the lease term, it is in the tenant's best interest to give notice to their landlord. Some lease agreements require the tenant to give 30 days' notice or more if they intend to vacate the property. You should be aware that many leases will impose severe penalties on tenants who do not move out at the end of the lease. For example, you may have to pay the landlord 2 to 5 times the daily rent for every day that you stay after the lease is over. Check your lease to see if it contains a provision like this.
• But what happens if neither party gives notice? Reconduction happens if, at the end of a fixed-term lease, a tenant remains in possession of the property for a certain amount of time and the landlord does not object. When the fixed term of the expired lease was one month or longer, the lease is reconducted from "month-to-month". When a tenant remains after a written lease expires, they become a "month-to-month" tenant. In other words, a fixed-term lease, typically a 6 month or 1-year lease, may be extended on a month-to-month basis if you continue to live there (and pay rent!) without any objection by the landlord. 

If your landlord is evicting you based on an expired lease, there are a few defenses available:

• Inadequate Notice to Vacate

  • If a landlord intends to evict the tenant upon the expiration of the lease term, the landlord is required to provide the tenant with a Notice to Vacate. The Notice to Vacate must allow at least five days for the tenant to vacate the property. If a Rule for Possession is filed before the sixth day after the delivery of the Notice to Vacate, the tenant may be able to delay the eviction based on the inadequate notice. 

• Landlord Accepts Rent After Notice to Vacate But Before Eviction Judgment

  • If your landlord delivers a Notice to Vacate at the end of your fixed-term lease, but accepts rent after the delivery of the Notice to Vacate and before the judgment of eviction, you have a defense to eviction--and you may have a reconducted month-to-month lease.  If you are in this situation, you should still attend the eviction trial and let the judge know that your landlord accepted rent. The landlord still has the right to deliver a Notice to Vacate to evict you for no cause, provided that they do so no later than 10 days before the end of the current rental month. But if you want to stay in your home, ask your landlord about renewing the lease. 

A landlord can evict a month-to-month tenant for no reason by giving 10 days' written notice before the end of the rental month. The defenses to 10-day evictions are limited.  Possible defenses to 10-day evictions are:

• inadequate Notice to Vacate (less than 10 days before the end of rental month or period);
• acceptance of rent after the Notice to Vacate, but before the eviction judgment;
• a “no reason” eviction is not allowed because you have a fixed-term lease that has not ended;
• a “no reason” eviction is not allowed because you live in public housing, project-based Section 8, tax credit, or other government-subsidized housing that requires a reason for eviction (unfortunately if you have regular Section 8 voucher your landlord can evict you just because your lease is expired and he wants the property back);
• retaliation for complaining to the government;
• unlawful housing discrimination.

You should be aware that retaliation and discrimination defenses are difficult to prove. For a discrimination defense, you must have proof that the landlord is evicting you because of your race, color, religion, sex, national origin, family status (having children or being pregnant), or because of your disability. It is generally better to fight a discriminatory eviction through a lawsuit against the landlord rather than waiting to defend a landlord's eviction. You should immediately call a lawyer who handles housing discrimination cases if you think you have been discriminated against