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Evictions--What Rights Do I Have?

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

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Evictions--What Rights Do I Have?

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

FAQ

Can my landlord just lock me out?

No, it is against the law for your landlord to lock you out, throw your belongings out, or cut off your utilities. Your landlord must get a court order to evict you.

If your landlord changes your locks, shuts off your utilities or takes your property, he has broken the law. A court may order him to stop breaking the law and to pay you damages.

Can my landlord evict me for no reason?

It depends.

If you are a month-to-month tenant, your landlord can evict you without any reason by letting you know before the end of the month that he is not renewing your lease.

If you have a written lease or if you live in certain types of government subsidized housing, then your landlord cannot evict you for no reason.

Month-to-Month Tenants

If you rent by the month and do not have an agreement as to how long your rental will last, you are a "month-to-month" tenant. If you do not have a written lease agreement, you are considered a month-to-month tenant. Also, must year leases after they expire become month-to-month leases. You should check your lease to see If this applies to you.

If you are a month-to-month tenant, your landlord can evict you for "no cause" or reason. But the landlord must give you 10 days' notice in writing before the end of the current rental period. If your year lease rolled over to month-to-month it may require more notice, like 30 days. You should check your lease to see.

If the landlord does not give you the right notice, the judge should order the landlord to start the eviction process over -- usually for the next month. Defenses to these 10 day "no cause" evictions are limited.

But if you do something to break your agreement, like not paying your rent, your landlord can generally evict you on 5 days' notice.

Written Lease or Subsidized Housing

If you have a written lease that has not expired, or if you live in certain types of government subsidized housing, your landlord usually needs a good reason to evict you. Public housing, tax credit, project-based Section 8, and some other types of government-subsidized housing have this “good reason” requirement. You may want to consult an attorney about the specific type of housing you live in and what rules apply. Unfortunately, if you have a regular Section 8 voucher, your landlord can decide to not renew your lease without a good reason other than its expiration.

A good reason is something you did or failed to do, for example failure to pay rent or another violation of the lease.

Must my landlord give me notice before he sues for eviction?

Yes, your landlord has to give you notice before suing for eviction, unless you agreed in writing that you would not get this notice. (If your lease contains a “Waiver of Notice” provision that means you agreed your landlord does not need to provide you with a notice before going to court.)

The notice is usually called a "Notice to Vacate." The amount of notice usually depends on whether you have a written lease and what the lease says.

If you have a lease, read the lease. It should tell you what notice the landlord must give and the reasons the landlord must have to evict you.

At the end of your year lease, your landlord must give you 30 days’ notice that he is not renewing your lease and you must vacate. If you are a month-to-month tenant (like many people who rent without a lease or whose year leases have expired), your landlord must give you 10 days’ notice that your lease will not be renewed at the end of the month and you must vacate. If you had a year lease that rolled over into a month-to-month lease, it may require 30 days’ notice- you should check your lease. If you do something to violate your agreement, like not paying your rent, your landlord only has to give you 5 days' notice.

The Notice to Vacate may be posted to your door. The Notice to Vacate does not have to be given to you personally in your hand.

The Notice to Vacate does not have to be stamped with a court seal. It can be on a court form or written by the landlord or his agent. However, a text message is not a valid Notice to Vacate.

What does a "Notice to Vacate" mean? Do I have to move out?

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

It is not a court order to move out. The landlord cannot get a court order for eviction until there has been a trial before a judge.

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.

What happens after a Notice to Vacate?

If you do not move out by the end of the Notice to Vacate period, your landlord may have you served with court papers called a "Rule for Possession." Note: the period to vacate does not include the day the notice was served. If the notice gives you 5 days to vacate or less, it does not include weekends or holidays.

A Rule for Possession is a lawsuit by the landlord asking that you be evicted. The Rule for Possession should tell you the date, time and place of the trial and the reasons why the landlord wants to evict you.

The Rule for Possession asks the court to hold a trial and decide whether you can be evicted. If you want to fight the eviction, you have the right to be heard in court and to present your defenses.

How much time do I have before the eviction trial?

A constable or sheriff will give you the Rule for Possession or post it on your door. If you live on the east bank of New Orleans, the court should also mail you a copy. The landlord can have these papers sent to you anytime after the end of the Notice To Vacate period.

The Rule for Possession must be served on you at least 2 full days before the trial. The court date cannot be set before the third day after the notice is served.

Can I stop an eviction by paying the rent?

A landlord generally does not have to accept late rent unless it was within a grace period. The landlord may refuse the rent and sue you for eviction. If he later accepts the rent or had a custom of accepting late rent, you may have a defense to an eviction for nonpayment of rent.

How do I stop the eviction if I have defenses?

File a notarized answer with the Clerk's office before the trial. This answer must state your defenses to the eviction. You must swear before a notary that the statements in your answer are true.

Many justice of the peace courts do not charge tenants for court fees. 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 ask the court if you can file for free, you must file an Application to Proceed In Forma Pauperis. For more information on how to do this, see the LawHelp item called "In Forma Pauperis--When You Can't Afford Court Costs."

If you lose the trial, you have 24 hours to appeal and must post an appeal bond. In order to stay in your home during the appeal you need to have filed an answer. You can still appeal if you did not file an answer, but you will have to move.

For more information about stopping an eviction, see the LawHelp items called "How to Defend an Eviction" and "How to Appeal an Eviction."

What happens if I do not go to the eviction trial?

You will lose. The judge will most likely enter a "default judgment" against you. Then the landlord can get a "Warrant for Possession" 24 hours after the judgment to have you evicted by the constable or sheriff. In some parishes this is called the “Writ of Ejection.” Because your eviction might end up on your record and make it more difficult for you to find future housing, you should go to court no matter what. Even if you moved out already, go to court and tell the judge so that she dismisses the eviction.

 

If you miss your court date because of an emergency (for example you are in the hospital), you should bring documentation to court showing that you had an emergency, and file a motion for a new trial. The motion must be filed within 7 days of the judgment against you, but you should file it as soon as possible because you need to file it before the constable physically puts you out. Judges do not have to grant a new trial when you miss the court date

What happens if I go to court and lose?  

If the court rules against you and you do not timely appeal, your landlord can get a "Warrant for Possession" from the court 24 hours after the judgment to have you evicted by the constable or sheriff. In some parishes this is called the “Writ of Ejection.”

If the eviction judgment is clearly not in line with the law or evidence presented at trial, or if you have new evidence that you could not have obtained at trial, you can file a motion for a new trial. You have 7 days to do this, but as a practical matter you must do it before the Warrant for Possession is filed which could be in as little as 24 hours. It is up to the judge who heard the case to give you a new trial or not.

You can appeal to a higher court. For information on your appeal rights, see "How to Appeal an Eviction."

If you are not going to appeal, you should promptly move out before the constable comes to forcibly remove you and your belongings.

Will the court give me more time to move?

Sometimes. Generally, most judges will only give you extra time if the landlord agrees to extra time. Ask the judge for extra time if you need it. Explain what hardship you will suffer if you have to move out right away. If you have looked hard for a new place to live, but still have not found one, it may help to explain this. There is no legal right to extra time, but some judges may give you extra time if you really need it.

Consent Judgments

          If you agree to move by a certain date or agree to a payment plan for back rent owed, you can ask the judge for a “consent judgment.” This is like a settlement agreement and is different than an eviction judgment. If you don’t follow through on your end of the agreement, your landlord can still get a Warrant for Possession without going back in front of the judge. But as long as you follow through on your end of the agreement you will not end up with an eviction judgment on your record, and may have an opportunity to stay in your home.

I never received notice of my eviction. Can I do anything about the eviction judgment?

In some cases you may have a right to have the judgment called off. For example, if you did not get notice or your landlord evicted you for "no cause" even though you paid your rent or had a written lease. You should talk to a lawyer to see if you have this right in your case.

To stop a judgment in such cases, you must immediately file either a Petition for Nullity of Judgment or a Motion for New Trial with the eviction court. You must also ask the judge to "stay" or stop the eviction until he has heard your Petition or Motion. It is not easy for non-lawyers to do this. If possible, you should get a lawyer.

What is a warrant of possession?

This paper comes from the court and gives the landlord the right to get his apartment back. You must move out of your apartment after getting the warrant. If you do not move out, the sheriff or constable will remove you and your property.

Last Review and Update: April, 2019

 

Last Review and Update: Apr 30, 2019
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