Eviction - How Can I Tell If I Have a Defense?

Authored By: Southeast Louisiana Legal Services (New Orleans office) LSC Funded


What does a Notice to Vacate mean?

A Notice to Vacate is a paper written by the landlord that tells you that you should get out of his apartment in a certain number of days. It can come from the landlord or a constable, marshal or sheriff.

A Notice to Vacate means your landlord plans to file a lawsuit for your eviction if you don't move out by the end of the notice period.

A Notice to Vacate is not a court order to move out. Your landlord cannot get a court order for eviction until there has been a trial before a judge. You have a right to present your defenses, if any, to the judge in court.

What should I do about a Notice to Vacate?

If you get a Notice to Vacate, you should decide quickly what to do. If you want to stay, you should first try to work out a deal with the landlord. Some landlords just want their rent paid. If you can get one, a lawyer may be able to help you work out a deal.

You need to figure out whether you have any defenses. If you don't have a good eviction defense, you should move. You need to find a new apartment before your landlord can get a court order evicting you.

Warning: The eviction trial could be heard as early as the third day after the end of the Notice to Vacate period. If your lease waives (gives up) your right to a Notice to Vacate, you won't get a Notice to Vacate. Instead, your first notice may be the eviction lawsuit (called a Rule for Possession). The Rule for Possession may only give you 2 days' notice of your eviction trial.

After the time in your Notice to Vacate has run out, your landlord can file a "Rule for Possession." A Rule for Possession is a lawsuit asking the court to evict you. The Rule for Possession will tell you why the landlord wants you to be evicted and when the trial date is.

If possible, talk to a lawyer about whether you can stop the eviction. Don't wait until you get the Rule for Possession. Call a lawyer as soon as you get the Notice to Vacate.

Defenses to a 10-day "no cause" eviction are limited. The most common defenses are that the notice was less than 10 days or that your landlord accepted the rent after he gave you the Notice to Vacate.

If you have a written lease or live in subsidized housing, you may have other defenses to the eviction. You should talk to a lawyer as soon as possible. Most subsidized housing tenants will be eligible for a free legal aid lawyer.

For other important information, read the other LawHelp resources on this site in the Housing topic area and under the heading called "Evictions."

What are defenses to an eviction? How can I tell if I have a defense?

First, you need to figure out why your landlord is evicting you. Look at the Notice to Vacate and the Rule for Possession. By law, they must state the reasons for your eviction.

The most common reasons for an eviction are:

  • no reason or that the landlord/owner wants possession;
  • nonpayment of rent;
  • violation of the lease;
  • the lease has ended and you did not move out.

An eviction may be delayed if the landlord gave the wrong notice or did not wait long enough after the Notice to Vacate to bring the eviction. These mistakes by the landlord may delay an eviction for several days to several weeks, depending on the facts in your case.

Evictions for "no reason" require 10 days' notice. Evictions for nonpayment of rent or lease violations generally require 5 days' notice.

Other defenses to an eviction vary depending on the type of eviction. See the information below.

What are some possible defenses to a 10-day eviction (owner wants possession)?   

Many Louisiana tenants are "month-to-month" tenants. As a rule of thumb, if you (1) don't have a written lease or (2) don't live in subsidized housing, you are probably a month-to-month tenant.

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 10-day eviction is not allowed because you have a lease that has not ended or you live in public housing or certain subsidized housing;
  • 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, sex, family or handicapped status. 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.

Are there any defenses to an eviction for nonpayment of rent?

Yes. The best defense is that you paid the rent and have receipts or canceled checks to prove it.

Other possible defenses include:

  • You made a timely offer to pay the rent, but your landlord refused to accept the rent.
  • Your landlord took your rent after the Notice to Vacate, but before the eviction judgment.
  • You properly used the repair and deduct remedy to make repairs to your apartment that the landlord refused to make.
  • 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 tried to pay, but the landlord did not receive the rent, and you paid the rent as soon as you knew about the problem.
  • Public housing tenants may have the defense of "rent abatement" if serious defects were not repaired by the housing authority after proper notice. "Rent abatement" means that the rent is not owed.
What are the defenses to an eviction for a lease violation?

To evict you , the landlord must prove that you violated the lease section stated in his lawsuit. For fairness, the landlord's proof 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.

Look at the landlord's law suit and your lease. 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?

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 there is strong proof of a serious lease violation. Generally, you should not be evicted for a minor lease violation.

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 should state in your answer that the landlord's lawsuit is barred by the judgment in the prior (earlier) lawsuit.

Finally, a judge may deny an eviction even if there is a lease violation. Your answer should specifically 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.

Can I delay an eviction if my lease has ended?

There are few defenses to an eviction where your lease has ended and you have not moved out.

One of the only defenses would be that the landlord has failed to give you a 5-day Notice to Vacate, or that the landlord brought the eviction before the time given in the Notice to Vacate ran out. These defenses will not stop an eviction. They will only delay the eviction for a short period.

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 for a week without any objection by the landlord.

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.

How do I stop the eviction if I have defenses?

File a written "verified answer" to the Rule for Possession with the Clerk's office (or the justice of the peace) before the trial begins. A "verified answer" must state your defenses and must include a notarized affidavit by you swearing that the statements in your answer are true. Your answer should also deny any incorrect statements made by the landlord in his Rule for Possession.

If possible, your answer should include a defense that would give you the right to stay in your apartment even if the landlord's claims were true. The judge's equitable discretion not to cancel the lease should be listed in your answer.

Sample answers to the most common evictions can be found in the self-help forms that come with this LawHelp question and answer item.

Be ready either to pay the court costs for your answer or to ask the court for a "waiver" of the court costs. Find out in advance if there are any court costs to file your answer.

Many justice of the peace courts do not charge tenants court fees for their answers. However, parish and city courts generally charge tenants for an answer to an eviction.

If you cannot afford the costs, ask the court to allow you to file your answer for free. To do so, you must file a notarized Application to Proceed In Forma Pauperis. You will also need to get a friend or relative to sign an affidavit saying that you cannot afford the court costs.

For more information on how to get the court costs waived, see our LawHelp item called "In Forma Pauperis -- When You Can't Afford Court Costs."

To stop your eviction, you must go to the trial and present your defenses.

Be on time for your trial. And have your witnesses and papers that support your defense with you.

What happens at the trial?

Your landlord and you will be sworn in as witnesses.

At the trial, the landlord should tell the judge what notice he gave you and why he wants you evicted.

Before anything else happens, you should tell the judge if you think the landlord's notice was defective. This is the time to tell the judge if the landlord:

  • did not give you enough notice, or;
  • accepted your rent after the Notice to Vacate, or;
  • filed his Rule for Possession before the time in the Notice to Vacate ended.

If the judge finds that the landlord's notice was defective, he should dismiss the eviction and make your landlord start the eviction process all over.

If the landlord's notice is OK, testimony and argument on the eviction should begin.

If you failed to pay rent, the landlord will simply testify that you did not pay the rent or that you did not pay it on time. If the eviction is for a lease violation, the landlord and his witnesses will testify as to facts that support the lease violation.

You have the right to ask the landlord and his witnesses questions that help show that the landlord's claim or story is wrong. You can also ask them questions that help support your defenses or your story of what happened. This is called "cross-examination."

After the landlord has completed his case, it is your turn to put on your case. This is the time to speak up for yourself and your family. Don't be bullied or railroaded into silence by the judge. You have the right to testify as to facts that will support your defenses. You may have witnesses testify on your behalf. You may submit papers that help prove your case.

It is easy to get nervous at a trial. So, before the trial, you should make a short list of all the important facts that support the defenses that you claimed in your written answer. Before you quit, make sure you or your witnesses have told the judge about each of the facts that support your defenses. Also make sure that you have submitted any papers to the judge that support your case.

If you have a lease, you should always bring the original and 2 copies to the trial. Believe it or not, many landlords do not bring a copy of the lease to the trial. If this happens, it may be because your landlord thinks the lease will hurt his case or require the judge to rule in your favor. If the case involves a lease violation, a copy of the lease should be given to the judge.

In most evictions, the judge makes his decision at the end of the trial and in the presence of the landlord and you. If he rules in the landlord's favor, he will sign a judgment ordering your eviction. If he rules in your favor, you should ask him for a written judgment dismissing the eviction.

If the judge does not decide the case on the spot, you should know how you will be told about his judgment once it is made. Do not leave the court without knowing how you will get the judgment. This is important because you only have 24 hours to appeal a judgment.

Warning: If you do not appear for your trial, the judge will rule in your landlord's favor and order you evicted. Be on time for your trial.

What if I lose at trial?

You can be evicted as early as 24 hours after the judgment.

If you filed a verified answer, you have the right to stop the eviction by filing an appeal within 24 hours of the judgment. To get your appeal, you must also file an appeal bond. A higher court will review your appeal and decide whether the trial judge was right or wrong. If you timely filed your appeal and bond, you can stay in your apartment until the appeal is decided by the higher court.

For more information on how to appeal, see the LawHelp item called "How to Appeal an Eviction."

Last Review and Update: Nov 20, 2008

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