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

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

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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 must be in writing, but does not need to be typed, have any special seal, or come from the court. However a text message is not a valid Notice to Vacate. The Notice to Vacate can be “tacked” meaning taped, or attached, to your front door.

 

A Notice to Vacate for lease violations (like not paying rent, noise, damage to the unit, etc.) must be at least five days. The five days does not include weekends or holidays.

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.

If your landlord won’t work with you, you must decide if you have any legal defenses. A “defense” is a reason under the law why your landlord cannot evict you. If you have a defense, you must also have evidence to prove your defense. For example, if your landlord is evicting you for not paying rent, it is a defense if you actually did pay your rent. But you must have a receipt to prove you paid your rent. Your word will not be enough in court.

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.

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.

 

Warning: The eviction process in Louisiana can move very fast once it gets started, especially if you live outside of a city. Your landlord can file a suit in court for your eviction in court the day after the Notice to Vacate expires. So if it is a five-day notice, your landlord can file on the sixth day. Then the constable will serve a notice of the court date on you. The constable only needs to tack this notice on your door. The eviction trial could be heard as early as the third day after the suit is served on you. So if the suit is filed on a Tuesday and served the same day, your court date could be Friday. If you lose in court, the judge can give you 24 hours to move. That is why you need to move quickly as soon as you receive a Notice to Vacate and contact a lawyer if possible. If you are low-income you may qualify for free legal aid with your eviction.

For more detailed information on the eviction process, 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:

·        nonpayment of rent;

·        violation of the lease;

·        the lease has ended and you did not move out (“owner wants possession”).

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" just because your lease expired require 10 days' notice before the end of the month if you are on a month-to-month lease, and 30 days’ notice before expiration of the lease term if you are in a year lease. 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 “no reason” eviction after your lease expires?   

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 “no reason” eviction is not allowed because you have a 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.

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 proof of a cashed check to prove it.

Other possible defenses include:

·        You made a timely offer to pay the rent, but your landlord refused to accept the rent. You will need to be able to prove, this for example with a post office receipt, an audio recording, or a money order with the correct date on it.

·        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. See the section on Repairs for more information on how to do this properly.

·        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.

·        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 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 should consult an attorney for more possible defenses. You may qualify for free legal representation if you are low income.

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 lawsuit 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? Do you have any witnesses or documents showing that you did not violate the lease?

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.

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.

Finally, 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.

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.

If you live in public housing, tax credit housing, project-based Section 8, or some other types of government subsidized housing, your landlord needs a good reason to evict you at the end of your lease. In other words, it is not enough that your lease has expired and the landlord wants the property back. Note: this does not apply if you have a regular Section 8 voucher. You will need to prove to the judge that you live in a type of subsidized housing where “no reason” evictions are not allowed, which means you will need to prove (1) the type of subsidy you have, and (2) the rules for that program. It often helps to have an attorney in court with you if this situation applies to you.

Another defense would be that the landlord has failed to give you proper notice that he was not renewing your lease. This will not stop an eviction, but may 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 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. Check your lease to see if it contains a provision like this.

 

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.

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, and attach proof of your income.

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."

 

          It is important to file an answer before court if you want to be able to appeal your eviction and stay in your home during the appeal. You can still appeal if you don’t file an answer, but you will have to move during the appeal.

To stop your eviction, you must also 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. Your landlord is not allowed to testify about what other people told him if those people aren’t in court to testify. This is called “hearsay” and it is not allowed.

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.

Warning: If you do not appear for your trial, the judge will rule in your landlord's favor and order you evicted. Even if you have moved out you should go to court and tell the judge so you don’t end up with an eviction on your record. 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. The appeal bond is money you deposit into the court registry to protect your landlord in case your appeal is not justified. The bond is usually set as one month’s rent, but it is up to the judge. 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: April, 2019

Last Review and Update: Apr 30, 2019
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