Evictions (Residential)

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Eviction is a legal action by landlord when a tenant violates any of the tenant duties or obligations. The landlord can recover actual damages and attorney fees, terminate the rental agreement, and gain entrance to the premises.

When the tenant fails to pay rent, the landlord usually can give a 3-day notice to the tenant to demand the payment.  If the tenant continues the default, an eviction can be filed by the landlord.

When the tenant’s activities affect the health of the residents and safety of the premises, the landlord normally must give a 30-day notice to the tenant to correct the problem, and then may terminate the rental agreement through the usual court eviction procedures.

Eviction process

A landlord wishing to evict a tenant for breach of the rental agreement must notify the tenant to leave the premises in three days or more before beginning court action. The landlord must hand a written copy of the notice to the tenant in person, or leave the notice at the tenant’s residence. In most other cases (except non-payment), the landlord must give the tenant 30 days notice of termination, prior to giving the 3 day notice. 

The wording and the format of the 3-day notice is important.  Every notice must contain certain information, and certain language must be conspicuous.  Here is one example,  

YOU ARE BEING ASKED TO LEAVE THE PREMISES. IF YOU DO NOT LEAVE, AN EVICTION ACTION MAY BE INITIATED AGAINST YOU. IF YOU ARE IN DOUBT REGARDING YOUR LEGAL RIGHTS AND OBLIGATIONS AS A TENANT, IT IS RECOMMENDED THAT YOU SEEK LEGAL ASSISTANCE.

The summons in a court action will be mailed or served on the tenant. It explains the time and place of trial, and must be given to the tenant five days before the day of the court hearing.  Every summon or subpoena given to a tenant must have certain language and follow certain format.  

If the tenant has any defense to the eviction action, or any claim against the landlord, the tenant should consult with an attorney before the Court hearing. In fact, a number of legal defenses are available against an eviction, and an experienced attorney can identify the applicable ones for the tenant.  Also, tenants have the right to a trial by jury. The tenant may present defenses at the court hearing without filing a written answer. However, it is better to file a written answer if possible. A demand for a jury should also be in writing.

In addition to any defenses, the tenant may counterclaim for injury and damages resulted from the landlord’s breach of duties or obligations under the rental agreement or under the law. If the tenant does counterclaim and the amount of the damages awarded on the counterclaim is equal to or greater than the amount of rent due, the tenant will not be evicted. Nevertheless, the Court may still order the tenant to pay into Court all or part of the past due and future rent. 

If the Court rules in the landlord’s favor at the hearing and the tenant is not off the property within certain period, the Court will authorize a bailiff or sheriff to remove the tenant’s possessions from the premises onto the street. 

Retaliatory eviction

A landlord cannot retaliate against a tenant by increasing rent or decreasing services, or evicting the tenant from the premises because the tenant has made a complaint to the appropriate City/ County department about conditions in the premises which might not be in compliance with the codes.

If the landlord is found to have retaliated the tenant, the tenant may recover actual damages and attorney fees. However, the landlord may still evict the tenant even if the tenant claims “retaliation” if (1) the rent is overdue, (2) code violations were caused by the tenant or tenant’s visitor, or (3) the lease has expired, etc.

But the tenant may still use the retaliatory action as a defense in the eviction, or bring a civil lawsuit against the landlord for damages and attorney fees.

Legal action by a tenant

If the tenant reasonably believes that the landlord has not fulfilled his duties, the tenant may notify the landlord about the conditions and request for the correction. The written notice must be sent to the landlord. 

If the landlord fails to correct the condition within a reasonable time (normally 30 days) and if the tenant is not delinquent in rent, the tenant may deposit all rent with the Clerk of the Court and file a law suit requesting a rent reduction until the necessary repairs are made, or request Court’s permission to use withheld rent to make repairs, or terminate the lease.  But these do not apply if the landlord disclosed the condition at the time the parties made the lease.

By depositing rent with the Court, the tenant forces the landlord to take some actions to recover rent. The landlord must repair the conditions and apply to the Court for an order releasing the rent. If the landlord brings a legal action, the tenant has the right to defend and sue for damages, but it will not be an eviction action. 

The Court may release the rent on various grounds and may release the rent to the landlord to pay interest and principle on a mortgage, insurance premiums, real estate taxes, etc.

If the Court finds that the condition about which the tenant complained in the notice was caused by the tenant and that the tenant deliberately acted in bad faith, the tenant will be liable for damages, court costs, and attorney fees. 

Lei Jiang Law Firm provides legal service in various real estate aspects.  For more detailed information, tailored analyses, and legal opinion, please contact us.

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