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Common Defenses and Counterclaims in Eviction Cases
If you're being evicted you may have defenses or counterclaims you can raise. If you have a defense or counterclaim you can prove in court, you might be able to stop your eviction. Read the descriptions of the different defenses and counterclaims carefully to see if they might apply to you. If the facts in your case match, you can use the defense or counterclaim described.
A defense is a reason a defendant (the tenant) gives the court to oppose a plaintiff’s (the landlord’s) complaint and what the plaintiff is requesting (usually a judgment of possession). In an eviction case, defenses are good reasons you should not be evicted.
For example, Tom Tenant stopped paying his rent and Lisa Landlord gave him a Demand for Possession. If Tom stopped paying rent because the home was badly in need of repairs, he may have a defense that excuses his non-payment. Tom will tell the court he did not pay the rent but say that there was good reason because Lisa was not keeping the home in good repair.
Every landlord has duties defined by the lease and the law. If your landlord doesn’t fulfill those duties, you may be excused from paying some or all of the rent. Read the article Tenant Rights and Responsibilities to learn more.
Did Your Landlord Violate the Lease?
If your landlord didn’t make repairs promised in your lease or failed to keep your home in good repair, then your landlord has violated the lease and the law. This defense may apply if you are being evicted for nonpayment of rent.
You can refuse to pay rent for the time that your home wasn’t livable or refuse to pay a portion of your rent for the part of your home that wasn’t usable.
If you use this defense, be ready to show the court how your landlord failed to keep the lease agreement and that the amount of rent you did not pay was justified. Be ready to show the court the condition of your home with photos, inspection reports, or testimony from people who have seen your home. If only part of the home was not fit to live in, you need to show the amount of rent not paid was fair.
This defense works best if you gave your landlord notice first, such as sending a letter requesting repairs or letting the landlord know you’ll be withholding rent.
Did You Spend Money to Repair Your Home and Deduct it from Rent?
You can deduct money you spent on repairs if your landlord was responsible for them and wouldn’t respond to your requests to fix them. This defense may apply if you are being evicted for nonpayment of rent.
For example, Tom Tenant’s furnace broke. Lisa Landlord did not respond to his requests to fix it so he paid for the repairs himself. He can take that amount out of his next rent payment.
If you use this defense, be ready to show the court the repairs were necessary to continue living in the home. You also need to show you tried to get the landlord to make the repairs, and the receipts for work you paid for. This defense works best if you gave your landlord notice first, such as sending a letter requesting repairs.
Did You Legally Pay Your Rent, but Not To Your Landlord?
You have a defense if you paid your rent to a separate account because you and your landlord are in the middle of a dispute. The separate account is sometimes called an escrow account. You can use it if you’ve made repairs yourself or withheld part of the rent because the home was not fit to be lived in.
Be sure you do not spend the money because the court may order you to pay it to the landlord. This defense works best if you gave your landlord notice first, such as sending a letter that said you were planning to put the rent into a separate account.
If you use this defense, be ready to show the court that you and your landlord had an ongoing dispute over the condition of the home. You also need to show the rent is in the account, ready to be paid when you and your landlord settle your dispute.
You also have a defense if you paid your rent to another person because you had a court order telling you to do so. If you use this defense, be ready to show there was a court order given to you saying that you needed to pay someone other than your landlord. This usually applies if a creditor is trying to collect money owed by your landlord by garnishment.
These defenses may apply if you are being evicted for nonpayment of rent.
Did Your Landlord Prevent Access to Your Home?
You have a defense if your landlord did something to keep you out of your home. Your landlord may have forced you out, removed your property, changed the locks, blocked the doors, made it impossible to use your home by cutting off gas or electricity, or created an unbearable nuisance that made your home unlivable.
If you use this defense, be ready to show the court how the landlord prevented, or made it difficult for you to live there for the time that you didn’t pay rent.
This defense may apply if you are being evicted for nonpayment of rent or if you are being evicted to recover possession because the landlord thinks you violated the lease.
Did Your Landlord Properly Notify You of the Eviction?
The notice or demand must:
Be in writing
Be addressed to the tenant
Describe the rental property, usually by giving the address
Give the reason for the eviction
Say how much time the tenant has to fix the problem if the tenant has that option
Include the landlord’s address and the date of the notice
If a Notice to Quit or Demand for Possession is required, the landlord must serve it in one of three ways:
Giving it to you in person
Leaving it at your home with a member of your family who is old enough and responsible enough to give it to you, with a request that it be given to you
Mailing it to you
If your landlord didn’t give you the required notice, you may have a defense. It applies in eviction cases to recover possession of the property for:
Violating a lease provision where the lease allows for termination
Illegal drug activity on the property
There’s no written lease or it’s a month-to-month lease and your landlord wants you to move
Just cause for mobile home or subsidized housing tenants
This defense also applies if you were not given a Demand for Possession before your landlord started an eviction case for:
Non-payment of rent
Causing extensive and continuing damage to property
Creating a health hazard
Did You Do What Your Landlord Requested?
If you got a Demand for Possession from your landlord for non-payment of rent, for creating a health hazard or for causing extensive and continuing damage to the property, it should say you must either do something or move out within seven days. For example, for non-payment of rent, the demand will say you must pay rent or move out within seven days. For a health hazard or damage to the property, the demand will say you must repair the damage or remove the health hazard or move out within seven days.
If you comply with the demand and your landlord still files a complaint for eviction against you, you have a defense. If you use this defense, be ready to show the court what you did to meet the landlord’s demands.
Was Your Landlord Retaliating?
If you think your landlord is trying to evict you because you did something you had a right to do, even if that’s not the reason your landlord is giving for evicting you, you might have a defense. This defense is retaliatory eviction.
For example, Tom Tenant reports Lisa Landlord for failing to keep his apartment building up-to-code. Two weeks later, Lisa gives Tom a Notice to Quit to Recover Possession of Property, claiming Tom violated his lease because he was too rowdy. In this case, Tom could use the retaliatory eviction defense.
If the tenant’s action that caused the retaliation happened less than 90 days before the landlord filed the eviction case, the court should assume that the eviction was retaliatory. If the action took place more than 90 days before the case was filed, a tenant can still raise this defense but the court won’t assume the eviction was retaliatory. The tenant will have to prove that the retaliation was the true reason for the eviction.
Tenant actions that could cause an eviction to be considered retaliatory include:
Reporting the landlord to a regulatory agency
Forming or joining a tenant’s association
Taking some action expressly allowed by the lease, possibly like owning a pet or having long term guests (you must read the lease to know what applies to you)
Paying rent into an escrow account during a dispute with your landlord
Using any tenant’s rights created under local, state, or federal law
This defense may apply if you’re being evicted to recover possession of the property.
You may also have a counterclaim that you can raise in your eviction case. A counterclaim tells the court that your landlord (the plaintiff in the case) actually owes you money or some other relief.
If your landlord hasn’t done repairs you’ve repeatedly requested, and you’ve withheld rent as a result, you have a defense to an eviction for nonpayment of rent. You may also have a counterclaim that asks the court to order your landlord to pay for the repairs or to order your landlord to make the repairs.
If you want to raise a counterclaim you must tell the court exactly what you want your landlord to do. Examples of what you could ask the court to order your landlord to do include:
Making any needed repairs, which you should describe in detail to the court
Allowing you to move back into the home if you’ve been locked out
Paying your costs of temporary housing for keeping you out of your home
Paying your damages if you were illegally evicted from the home
Some combination of these or other actions
Raise a counterclaim if you need something that your landlord is obligated by law or by your lease to do. If staying in your home is all that you are asking the court for, you should use a defense instead of a counterclaim.
Don’t raise a counterclaim for an issue with the landlord that isn’t related to the eviction. For example, if you hurt yourself on the property and think your landlord is responsible, that’s probably not related to your eviction. If you have the judge rule on it in this case, you can’t bring it up again.
Proving Your Case
Start gathering evidence to prove your case right away. Evidence is what you show a court to prove your case. It includes documents, pictures, and statements from other people who know firsthand about what happened.
The better your evidence is, the easier it will be to show the court and your landlord why you shouldn’t be evicted. The records you need might include:
Copies of letters or emails you’ve sent to your landlord or housing authorities
Letters or emails you’ve gotten from your landlord or housing authorities
Pictures of needed repairs
Copies of bills and receipts for repair or for other costs related to the problems such as temporary housing
Bank statements for any escrow accounts where you are keeping withheld rent
Raising a Defense or Counterclaim
If you do not move out after getting a Notice to Quit or Demand for Possession, your landlord may start the formal eviction process once the notice period has ended. See the article Eviction: What is it and How Does it Start? for a timeline.
If your landlord starts an eviction case, you will get a summons and a complaint. You must bring up any defenses or counterclaims in your answer to the complaint. You can do this in court or in writing. But, if you live in one of the 5-day Districts, you must file a written response with the court and mail a copy to your landlord within five days of getting the summons and complaint. If you do not do this, you will not get a court date and the court may issue a default judgment for possession. To learn more about going to court, read the article Going to Court in an Eviction Case.
When raising a defense or counterclaim in writing, you need to label that section separately. Be sure to list each of the facts of your defense or counterclaim clearly and briefly. Then tell the court why you shouldn’t be evicted or what action you would like the court to order your landlord to take.
For example, Tom Tenant stopped paying his rent and Lisa Landlord gave him a Demand for Possession. If Tom stopped paying rent because the home was badly in need of repairs, he has a defense that may excuse his non-payment.
Tom needs to tell the court he did not pay the rent, but say that there was good reason because Lisa was not keeping the home in good repair. He must support the facts of his defense with evidence that explains each reason so the court can understand why the home was not in good repair. When he goes to court, he’ll need to present his evidence, such as pictures, repair bills, and his testimony from witnesses.
You can use the Automated Online Answer in the eviction toolkit to create your Answer. After the interview guides you through responding to the complaint, it will ask you questions to see which defenses and counterclaims might apply to your case.
Should You Sign a Settlement Agreement?
If you file an answer with defenses or counterclaims, your landlord or your landlord’s attorney might contact you about reaching an agreement. You can try to work things out with your landlord at any time during this process. It is usually less expensive and time consuming than going to court.
You may want to hire a lawyer to help you reach an agreement. A lawyer may help you understand your chances of success in court. Even though lawyers can’t tell you the exact odds of success, they can give you detailed legal advice about how to proceed with your case.
Accepting or rejecting a proposed settlement agreement from your landlord or your landlord’s lawyer is entirely up to you. If you don’t like your landlord’s proposal, you can make your own counteroffer. Only you know what results are best for you. If you are thinking about signing a settlement agreement, think about:
What could you get if you continue the case in court?
How much will it cost you in time, money, and effort to continue the case?
What will your relationship be with your landlord, if you want to stay in your rental home?
How will the agreement change your original lease?
Does the agreement make your landlord pay for the costs you paid in repairs or temporary housing?
What are your chances of success in court?
If you come to an agreement with your landlord, get it in writing. Have the landlord sign a voluntary dismissal form. Make sure both you and your landlord sign it. Keep a copy for your records and give a copy to the court if a complaint has already been filed. Don’t rely on your landlord to tell the court.
Preparing for Court
If you don’t reach an agreement with your landlord before your court date, you will need to go to court. See the eviction toolkits to make sure you have all the forms that you need. Make sure you have all of your evidence and witnesses with you when you go to court.
For more information on what to expect in court, read the article Going to Court in an Eviction Case and watch the Going to Court video. After you’ve gone to court, and you need to know what to expect next, read the article Eviction After Court is Over.