Your landlord cannot simply go to court and get an order to evict you. Rather, your landlord must first terminate your tenancy with a notice explaining the landlord's reasons for termination and a time period to either cure (fix) the problem (if given the option), or move out of the rental unit. If you refuse to move out or cure the problem, you will not be automatically evicted when the time period expires. Instead, your landlord can then file with the clerk of court the appropriate legal document to begin the eviction process.
You can take steps to stop or delay eviction when you receive a termination notice. Even when your landlord has already filed an eviction lawsuit, there might still be ways to postpone or even prevent eviction.
Understanding Your Eviction Notice
The laws in your area might refer to a termination notice as an eviction notice, a notice to cure or quit, a notice to pay rent or quit, a notice to quit, or an unconditional notice to quit. No matter the name, the notice means that your landlord wants to end your tenancy.
Your landlord must closely follow the applicable state statutes or local ordinances about serving the notice. These laws state what type of notice is appropriate, as well as how your landlord must send it to you, whether it be by certified mail, hand delivery, or posting it on the door of the rental unit. Your landlord will likely send you one of the following types of notices:
- Notice to cure or quit. Some states allow the tenants time to cure the breach of the lease. If the breach is nonpayment of rent, the cure usually is to pay the past-due rent and related expenses, such as fees for service of process. If the breach is another type of lease violation, such as having a pet despite a "no-pets" policy, the cure would be to remove the pet. The notice will provide a set amount of time to cure—usually ten to 14 days. If the tenants don't cure within that time, they must move out, or the landlord will be able to file an eviction lawsuit.
- Unconditional notice to quit. These notices do not give the tenants a chance to fix the problem that prompted the eviction notice. Some states don't require landlords to give tenants a second chance—for example, landlords may serve an unconditional notice to quit as soon as rent is late. In other states, landlords can serve unconditional quit notices in certain circumstances, such as when there is criminal activity in the rental unit or when tenants have violated their lease more than once.
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How to Prevent Your Landlord From Filing an Eviction Lawsuit
Once you've received an eviction notice, you can prevent your landlord from filing an eviction lawsuit by taking one (or more) of the following actions:
- Fix the problem if you can. If you've received a notice to cure or quit, pay your rent or fix the lease violation before the deadline in the notice. Once you've cured, your landlord cannot proceed with an eviction.
- Move out before the deadline. If you can't pay the rent you owe, or don't want to fix the lease violation, you can move out of the rental before the deadline given in the notice. Then, your landlord won't be able to file an eviction lawsuit, but might still sue you if you owe rent or money to cover the cost of repairs to the rental.
- Ask your landlord for more time. If you think you will be able to pay the rent you owe or fix the lease violation, but you need more time than what your landlord gave you in the notice, ask for more time. Be sure to get any agreement to delay the deadline in writing.
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What to Do When Your Landlord Files an Eviction Lawsuit
If you don't cure or move out by the deadline in the eviction notice, your landlord can file an eviction lawsuit. In order to delay or stop the eviction at this point, you will need to present evidence to the court as to why your landlord can't legally evict you.
Do You Have a Defense?
Carefully examine all documents you receive to determine what the landlord is demanding in the lawsuit. If you disagree with what's stated in the documents, let the court know, and present evidence supporting your position. You will also need to tell the court about any of the following defenses to eviction if they apply in your situation:
- Improper Procedure. Due process requires that your landlord follow all procedural requirements in the law. When a landlord doesn't follow procedural rules, the tenants may ask the court to dismiss the eviction suit. For example, if the landlord told the tenants they had 3 days to cure or quit, when the state law requires 10, the court would likely dismiss the eviction suit because the landlord didn't give the tenants enough time. This would mean that the tenants could stay in the rental, and the landlord would have to restart the process of removing the tenants. Other common procedural errors include mistakes in service and improper completion of court forms.
- Uninhabitable Premises. Implied in almost every residential lease is a "warranty of habitability," which means that the rental unit is fit to live in and is free of serious defects that might endanger tenants' health or safety. Such defects would include a lack of running water, lack of heat in the winter, vermin or other dangerous pests in and about the property. Any one of these could be a valid defense to your eviction.
- Retaliation. Illegal retaliation occurs when a landlord files an eviction suit because a tenant complained about the rental property, or became involved in property-related activities, such as forming a tenants' union. Retaliatory eviction is almost always illegal, and can therefore provide a valid defense to eviction.
- Partial Rent Payment. In most states, when a landlord accepts a partial payment of the rent owed by the tenant, the landlord "waives" (gives up) the right to evict the tenant for the month the partial rent was paid. On the other hand, some states do permit landlords to accept partial payment of rent without waiving the right to evict the tenant.
- Illegal Discrimination. Illegal housing discrimination occurs when landlords treat a tenant differently because of the tenant's race, color, age, sex, nationality, religion or disability. Such discrimination is illegal under federal and state laws. Some states have also prohibited housing discrimination based on other tenant attributes, such as gender orientation or identification, marital status, and source of income.
- Constructive Eviction. Constructive eviction occurs when something happens to make the rental unit uninhabitable, and the landlord fails to fix the situation. Common examples of constructive eviction include a landlord's repeated violation of the right of quiet enjoyment by entering the unit without proper notice or at unreasonable times, and a landlord's failure to make necessary repairs, such as fixing a ceiling leak or a heater that won't turn off.
Do You Have Grounds to Appeal?
If the court sides with your landlord and orders an eviction, you have the right to appeal the ruling. You might consider appealing if, for example, you believe the court made an error or you discover further evidence to support your case. In many states, the time in which to appeal is quite short, but state laws differ. Most of the time, when you appeal an eviction order, your case will be heard de novo, meaning you'll appear before a new judge and get a second trial, without the new court reviewing or considering the small claims court's decision. Appealing will delay any physical eviction.
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If your landlord prevails at the hearing in small claims court and you don't appeal, your landlord will then have to request a writ of possession from the clerk of court. A writ is simply an order by the court, and, in eviction actions, a writ of possession is an order to law enforcement to remove the tenant and the tenant's personal property from the rental premises. Depending on how busy the courts and law enforcement are, it could take months before a deputy is ordered to evict a tenant on a certain date. You can remain in the rental until law enforcement physically removes you, but keep in mind that you'll be responsible for paying the rent until the day you're kicked out.
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How to Get Help
Each state has its own body of landlord-tenant laws regarding the legal topics discussed above. These laws are found in the state's statutes, which you can find on the Library of Congress' website. Always check your state's statutes before deciding on a plan of action if you receive a notice of eviction or are to appear at an eviction hearing. You'll also want to check your local ordinances—Municode.com can be a good place to start your legal research. Also, many states have legal aid offices that offer assistance to tenants going through the eviction process—search online for your city's or state's name and "tenant assistance."
Nolo also has a comprehensive list of legal resources for tenants, along with information about how to find legal aid and pro bono representation.
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