Alaska law sets out specific rules and procedures for evicting tenants, beginning with the landlord providing notice of termination of a lease agreement, or Notice to Quit (see the Nolo articles Eviction Notices for Lease Violations in Alaska and Eviction Notices for Nonpayment of Rent in Alaska for details). In many cases, a tenant will move out after receiving a termination notice, such as a seven-day notice of termination for nonpayment of rent. But that is not always the case. After receiving an eviction notice from a landlord, a tenant may attempt to fight the eviction by making a defense argument at the eviction hearing in an attempt to stay in the rental property longer.
This article summarizes defenses a tenant may use to stop or delay an eviction in Alaska, as well as key information landlords need to know before even starting the eviction process.
Reasons a Judge May Deny an Eviction in Alaska
The Alaska Uniform Residential Landlord & Tenant Act specifies defenses a tenant may raise which may prevent an eviction judgment from being entered by the judge. If, at an eviction hearing, the judge finds any of the following situations to be true, the judge will not enter a judgment in favor of the landlord (this means that the judge will not make the tenant move out of the rental property when the landlord is trying to evict the tenant).
It is illegal for a landlord to evict a tenant in retaliation against the tenant’s attempt to enforce the tenant’s legal rights under the lease or rental agreement, or other laws—for example, if the tenant reported a health or safety violation to authorities, or exercised a lawful act, such as joining a tenant organization (AS 34.03.310). See the Nolo article Alaska State Laws Prohibiting Retaliation for details.
Unreasonable Rules or Added Rules Not in Lease
A landlord may adopt rules and regulations regarding the tenant’s use of the rental property but they must be enforceable—for example, a rule or regulation must promote safety or welfare of the tenants, be related to protecting the rental property from abusive use, or fairly distribute services provided to the tenants. Furthermore, a rule must be relevant to its intended purpose, apply equally to all tenants, and be clear and simple enough to understand—and the tenant must have notice of such rules at the time the tenant enters into the lease or rental agreement with the landlord (see AS 34.03.130).
If a judge finds that the landlord is attempting to evict a tenant for violation of a rule or regulation that does not meet the above criteria required under Alaska law, or finds the rule did not exist at the time the tenant entered into the rental agreement or lease, the judge will deny the eviction. If the landlord adopts a new rule or regulation after the tenant entered into the lease or rental agreement, and the tenant did not have fair notice of the rule, or the rule substantially modified the terms of the rental agreement, the judge will deny the eviction for the tenant’s violation of such a rule.
Examples of how a landlord may attempt to adopt a new rule or regulation include increasing the tenant’s monthly rent under fixed-term lease (without a provision in the lease allowing the landlord to do so), or requiring the tenant to perform certain maintenance or repair responsibilities (without having this responsibility agreed to in the lease or rental agreement).
Self-Help or Improper Eviction
Finally, a judge may deny a landlord’s request for an eviction of the tenant if the landlord used prohibited self-help measures like changing the locks on the rental property, or causing an interruption of heat, running water, hot water, electric gas, or other essential services to the tenant in an effort to force the tenant to move out. (AS 34.03.280).
A judge may also deny a landlord’s request for an eviction if the judge finds the landlord did not provide proper notice or service of eviction papers, such as the summons and complaint, on the tenant.
Waiver of Landlord’s Right to Terminate
If the landlord accepts rent from the tenant after the landlord has knowledge that the tenant has violated the terms of the lease or rental agreement or the landlord’s rules and regulations, then the landlord has waived the right to terminate the rental agreement for that violation. For example, if the tenant violates the rental agreement by having a pet, when the rental agreement prohibits pets, and the landlord has knowledge the tenant has a pet, yet still accepts rent from the tenant, the landlord has waived the right to terminate the lease or rental agreement due to the tenant having a pet in violation of the lease agreement. (AS 34.03.240).
What if the Tenant Asks for More Time?
The tenant may ask the judge for more time to prepare a defense or to hire an attorney. Alaska law provides that eviction actions, or “Forcible Entry and Detainer” (FED) cases, take place in two stages – first, a hearing to decide whether the landlord or tenant should get possession of the rental property and second, a hearing to determine whether any damages, or monetary compensation, should be awarded to either party. The first hearing for possession will be scheduled within 15 days after the case has been filed in court and the tenant must receive notice of the hearing at least two days prior to the hearing. (Alaska R. Civ. P. 85(a)(2)). Given the fact that an eviction hearing is scheduled quickly, a judge may grant the tenant extra time to find an attorney to raise appropriate defenses.
Counterclaim Against the Landlord
There may be a situation in which an action or inaction by the landlord excuses the tenant’s payment of rent under the law or by the terms of the lease or rental agreement—in which case, the landlord would not have grounds to evict the tenant. A tenant may file a counterclaim for damages to offset the rent due to the landlord because the rental property is not fit for living. Examples of an unfit rental unit include a rodent infestation, a leaking roof causing damage inside the rental property living space, a broken furnace during cold temperatures, or the shut off of utilities, such as water or electricity, that is not the fault of the tenant. It is in the court’s discretion whether the tenant can remain in the rental unit pending the outcome of the counterclaim. (AS 34.03.190). See Nolo article Alaska Tenant Rights to Withhold Rent or “Repair and Deduct” for more on the subject.
Any delay by the tenant in the eviction proceeding, including the filing of a counterclaim, may result in many months passing before a court makes a decision on the eviction. As such, the landlord will usually ask for rent to be escrowed to the clerk of the court during the delay or stay of the proceedings. The court will order the tenant to pay the monthly rent to the court, with the landlord’s hope that this money will be released to the landlord upon resolution of the court action. Escrowed rent prevents the tenant from living rent-free while the lawsuit is ongoing. However, if a counterclaim by the tenant involves lease violations by the landlord, the landlord has six months to cure the violations -- otherwise the judge may order that all rent paid into escrow with the clerk of the court be refunded to the tenant. (AS 34.03.190(a)(3)).
Negotiating an Agreement Between Landlord and Tenant
There may come a time when the landlord is better off stopping the eviction process to work with the tenant. If the tenant has a valid legal defense to the eviction, the landlord may need to continue the lease until he or she has a valid reason to evict the tenant or until the lease term ends. A landlord who pushes an improper eviction too far may end up being held responsible for violating discrimination or housing laws and may be required to pay the tenant’s attorney fees. It may also be possible for a landlord and tenant to agree to sign a new lease or rental agreement reflecting a new understanding between the parties, such as a reduced monthly rental rate or a shorter lease term. In some situations, a tenant may agree to move out if the landlord helps the tenant relocate to a new rental property or negotiates a financial settlement.
When to Hire a Lawyer
In many cases, landlords will want to hire an attorney, particularly if a tenant is not only fighting an eviction but also claiming damages against the landlord. Although Alaska law does not permit a jury trial for a possession hearing, it will be important for the landlord to hire an attorney who can present evidence and question the landlord on the stand so the judge is able to hear the landlord’s side of the facts.
Tenants who have questions about their eviction case or defense or are dealing with a landlord who has already retained a lawyer, should probably also contact a lawyer. A lawyer can handle the whole case or give a tenant advice on how to proceed. A lawyer can also let a tenant know how likely he or she is to win their case. Tenants may especially want to hire an attorney if they have a complicated case or if they are confident of their case and their lease or rental agreement entitles them to attorney fees if they win in court.
For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Attorney.
Landlord-tenant law is not always straightforward or simple and advanced legal knowledge may be needed in many unique situations. Nolo’s Lawyer Directory includes landlord-tenant lawyers in Alaska who may be helpful in this regard.
Resources on Evictions for Nonpayment of Rent in Alaska
The Alaska Landlord & Tenant Act: what it means to you is a useful guide for landlords and tenants and has been approved by the Alaska Department of Law. Another useful site is the Alaska Legal Resource Center. See also, Nolo’s Overview of Landlord-Tenant Laws in Alaska for further landlord-tenant related information in Alaska.