State of Indiana Attorney General Eviction Notice - PDF by vxm63988


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									Eviction Defense

By Marcia Henry

                                    [Editor’s note: Much of the material in this   which advocacy can make a difference in
                                    article that describes general trends          helping clients stay in their homes.
                                    among states is adapted from Janet Port-            Almost all states now prohibit “self-
                                    man and Marcia Stewart, Every Tenant’s         help” eviction, whereby a landlord direct-
                                    Legal Guide (2d ed. 2001), published by        ly seizes possession of a rental unit from
                                    Nolo Press. Appendices give citations, for     a tenant by changing the locks or putting
                                    every state, of statutes governing land-       the tenant’s possessions on the street or
                                    lord-tenant law generally, rent withhold-      both. Instead, as a rule, the landlord must
                                    ing and repair and deduct remedies,            obtain a court order to evict a tenant, and
                                    notice requirements to change or termi-        law enforcement personnel, such as a
                                    nate tenancies, landlord retaliation, and      sheriff or marshal, must execute the actu-
                                    much more. For further information, see        al eviction. Eviction proceedings break
                          ]                                 down into three stages: the notice from
                                                                                   the landlord to the tenant terminating the
                                    While the particulars of landlord-tenant law   tenancy, the court proceeding, and the
                                    are highly state-specific, eviction proceed-   notice and physical eviction by law
                                    ings everywhere tend to follow a similar       enforcement. Depending on the circum-
                                    pattern. The law is more tenant-friendly in    stances of a particular case, an advocate
                                    some states and localities than in others,     may be able to intervene successfully on
                                    particularly on matters such as whether        behalf of a tenant at any of these stages.
                                    tenants are protected by rent control and
                                    the existence and scope of tenant protec-      Notice
                                    tions such as a warranty of habitability.      To evict a tenant, the landlord must first
                                    Certain landlord-tenant themes, however,       serve the tenant properly with a notice
                                    recur nationwide. Representing tenants in      that terminates the tenancy (a “notice to
                                    eviction proceedings has always been a         quit”) and states the reason for termina-
                                    major part of legal services programs’         tion. Grounds for eviction generally fall
                                    work. As the crisis in the supply of afford-   into one of three categories: nonpayment
  Marcia Henry is a staff           able housing deepens, helping housed           of rent, breach of a term of the lease, or
  attorney–legal editor, National   clients remain housed is more important        holding over beyond the term of the
  Center on Poverty Law, 111 N.     than ever. All attorneys who practice          lease. The notice usually must be in the
  Wabash Ave., Suite 500,           poverty law, including those who special-      alternative, that is, it must give the tenant
  Chicago, IL 60602;                ize in areas other than housing, should        the choice between doing what the rental
  510.531.9142;                     have a basic familiarity with the stages of    agreement requires and vacating the unit.       an eviction proceeding and the points at       However, in some cases, the tenant does

126                                                                                           National Center on Poverty Law

not have a legal right to cure the breach      crimination or retaliation.2 Also, jurisdic-
and remain in the unit.1                       tions covered by rent control generally
     Nonpayment. If the tenant is late pay-    allow eviction only for cause.
ing rent, the landlord may serve a notice           Unconditional Notice to Quit. Egre-
demanding that the tenant “pay or quit.”       gious acts by the tenant can be grounds
State law usually specifies the time with-     for a notice to quit without the opportu-
in which the tenant may “cure” the breach      nity to cure. Grounds vary by state but
by making payment; generally this peri-        can include engaging in illegal activity
od is a few days. However, in a handful        on the premises, repeated late payment
of states, once rent is late, landlords need   of rent, or other repeated breach. Drug
not offer tenants any time within which        activity has become a particular focus in
they may still pay; any nonpayment is          recent years of statutes allowing for
grounds for eviction. In other states, while   unconditional notice to quit, and evict-
the landlord must respond to the first late    ing tenants on this basis has become eas-
payment by giving the tenant an oppor-         ier for landlords. In fact, some states affir-
tunity to cure, habitual late payment can      matively require landlords to evict on the
become grounds for eviction without            basis of drug activity in a rental unit or
opportunity for the tenant to cure.            risk confiscation of their property. Evic-
     Breach of Lease. If the tenant            tions on the basis of criminal activity are
breaches a lease provision (e.g., the ten-     often expedited even beyond the gener-
ant has noisy parties, acquires a pet          al summary nature of eviction proceed-
where pets are prohibited, allows an           ings (see below).
unauthorized household member to                    Numerous advocacy opportunities
move in), the landlord may serve a             may exist at the “notice” stage. The notice
notice demanding that the tenant “cure         must meet statutory requirements both in
or quit.” A written lease may list specif-     its written language and the form of ser-
ic provisions that, if violated, are grounds   vice. If the notice itself or service of it is
for the landlord to terminate the lease.       defective in any way, the defect may be
However, grounds for eviction may also         grounds for dismissal of an eviction com-
be implied; they need not be explicit in       plaint that the landlord subsequently files.
a written agreement. As with nonpay-           Many states require that the notice state
ment, a notice to cure breach of a lease       specific facts regarding the tenant’s
term or quit must specify the time with-       breach; a mere conclusory demand (e.g.,
in which the tenant must comply.               “cease violation of tenancy within five
     Holdover. If the lease term has           days”) would be grounds for dismissal. If
expired or if the rental agreement is          nonpayment is the issue, in most states
month to month, the landlord may end           the notice must specify the exact amount
the landlord-tenant relationship simply by     of rent due and the time period that
giving proper notice (the tenant, of           amount covers. In the majority of states
course, may do so as well). Thirty days’       where tenants must be given the option
notice is usually required to terminate a      to pay the rent owed, a notice that is not
month-to-month rental agreement (tech-         phrased in the alternative (“pay rent or
nically thirty days or one month is the        quit”) is defective. Partial payment of rent
length of the lease term that is renewed       due cancels the notice. The time frame
each month through offer and acceptance        for the demand is also specified by law in
of rent). The landlord does not need           most states (“pay rent or cure other breach
cause to serve a thirty-day notice, al-        within x days or quit”), and in those loca-
though the landlord may not serve notice       tions a notice that gives the tenant less
on the basis of a bad reason, such as dis-     time is defective.

 1 Public  housing and subsidized housing residents typically have fourteen days to cure a
   breach. See Fred Fuchs, Overview of Public Housing, HUD Federally Subsidized Housing,
   and Section 8 Housing Voucher Programs, in this manual.
 2 See, e.g., Wendy R. Weiser & Geoff Boehm, Housing Discrimination Against Victims of
   Domestic Violence, 35 CLEARINGHOUSE REV. 708 (Mar.–Apr. 2002).

POVERTY LAW MANUAL FOR THE NEW LAWYER                                                              127

                       The landlord who relies on an im-              An eviction proceeding usually takes
                  proper notice or defective service can, of     a matter of weeks (and as few as two
                  course, immediately serve a new, valid         weeks) from the filing of the complaint to
                  notice on a tenant who challenges a de-        entry of judgment. However, a case that is
                  fective one. Nonetheless, challenging de-      on an expedited track, due, for example,
                  fective notices can at least get tenants a     to allegations of criminal activity on the
                  few more days to gather rent money, find       tenant’s part, may proceed even faster. A
                  a new home for the dog, or look for a          complicated case involving discovery and
                                                                 a jury trial may take much longer.
                                                                      An eviction proceeding begins with

To avoid a default judgment for the                              the filing of a complaint that specifies the
                                                                 grounds for eviction and asks the court
landlord, the tenant must answer the                             to award possession of the property to
                                                                 the landlord. The complaint may also seek
complaint within the short time frame                            an award of back rent, damages, and
of eviction proceedings.                                         attorney fees, but in the case of low-
                                                                 income clients landlords may forgo these
                                                                 claims if they assume that they are unlike-
                  new apartment. A tenant may want to            ly ever to be able to collect a money judg-
                  stop the eviction process at this point, by    ment. The court clerk assigns the case a
                  curing or moving, because if the landlord      return date, and the landlord has a sum-
                  goes to the next step and files an evic-       mons for this date and a copy of the com-
                  tion complaint in court, the tenant’s cred-    plaint served on the tenant.
                  it record will reflect the complaint even if        To avoid a default judgment for the
                  the tenant moves before the court awards       landlord, the tenant must answer the com-
                  judgment to the landlord.                      plaint within the short time frame of evic-
                                                                 tion proceedings. If the landlord has not
                  Court Proceedings                              followed proper procedures, some of
                  Eviction proceedings are “summary pro-         which can be quite technical in a sum-
                  ceedings,” that is, they make their way        mary proceeding, the tenant may be able
                  through court much faster than other civil     to get the complaint dismissed. Some of
                  cases. In exchange for this speed, the         the typical grounds for a motion to dis-
                  landlord must strictly comply with vari-       miss are the following:
                  ous requirements. Just as with the notice
                                                                 I  Improper notice (see discussion
                  elements described above, many of these
                                                                 above) or waiver of notice by a landlord
                  requirements involve specified time peri-
                                                                 who, for example, accepts a partial rent
                  ods, and advocates should be sure to
                  determine whether the landlord has com-
                  plied with all of them. The landlord’s fail-   I   Improper service of the summons
                  ure to do so may be grounds for getting        and complaint. State law specifies the
                  the complaint dismissed.                       requirements for service. States typically
                       Most eviction proceedings are heard in    prohibit a party from serving a complaint;
                  municipal or county court. Small-claims        some mandate that the sheriff serve the
                  courts have jurisdiction over eviction pro-    summons and complaint while others
                  ceedings in some states, and a number of       allow service by anyone over 18.
                  these states give landlords the option of
                  filing in municipal or small-claims court.     I   Complaint filed too soon. If state law
                  Landlords who rely on attorneys to repre-      gives the tenant ten days to pay rent fol-
                  sent them in eviction proceedings are like-    lowing service of a notice to pay or quit,
                  ly to reject the small-claims court option     the landlord does not have grounds for
                  since parties in that court must represent     eviction until the eleventh day. A com-
                  themselves. Some places, particularly large    plaint filed sooner would be grounds for
                  cities, have specialized housing courts.       a motion to dismiss.

128                                                                        National Center on Poverty Law

I    Absence of required allegations in the       way to a certain multiple of the monthly
complaint. For example, state law may             rent. While this cap likely means that an
require the complaint to demand posses-           individual tenant may accomplish only less
sion, describe the property and type of           costly repairs, tenants in a multiple unit
rental agreement, and allege underlying           building can sometimes pool their rent to
facts. If these elements are missing, the         accomplish major repairs using the “repair
tenant may have grounds for dismissal.            and deduct” remedy.
     If grounds for dismissal are lacking
or the court denies the motion, the tenant        I    Fair housing laws: Violation of fair
must file an answer. Depending on the             housing laws may also be grounds for an
case, the tenant may deny the landlord’s          affirmative defense in an eviction pro-
allegations (e.g., avow that rent has been        ceeding. For example, if a tenant has a
paid, that no one but persons authorized          new baby and the landlord claims too
by the lease live in the apartment. or raise      many people now reside in the apart-
affirmative defenses or both. The follow-         ment, but the household is within per
ing are some of these defenses:                   capita square footage requirements as set
                                                  forth in the local building code, the ten-
I    Rent withholding: In eviction pro-           ant can assert protection against familial
ceedings based on nonpayment, some                status discrimination under the federal Fair
tenants may affirmatively raise as a de-          Housing Act.3
fense the allegation that the conditions of
the rental unit make it uninhabitable.            I    Retaliation: Most states protect ten-
Nearly every state has adopted an implied         ants from landlords who want to evict
warranty of habitability that governs rental      them because the tenants exercise their
units, and in most of these the warranty          rights to complain to a building inspector
is in effect even if a written rental agree-      about housing conditions, to organize or
ment purports to waive it. Many states            participate in a tenants’ union, or to use
allow tenants whose landlords refuse to           rent money to make needed repairs.4 In
address uninhabitable conditions to               some of these states, an eviction that the
enforce the warranty, in effect, by with-         landlord prosecutes within a certain
holding rent; in some of these states, how-       amount of time from the tenant’s protect-
ever, the tenant must deposit the funds           ed act is presumed to be retaliatory; the
into an escrow account. The tenant may            presumption remains in effect for periods
also argue that conditions in the unit are        ranging from three months to one year.
such that the market value of the apart-
                                                        The creative advocate may be able to
ment is reduced and the amount of rent
                                                  find numerous other affirmative defens-
owed therefore should be abated.
                                                  es to raise on a tenant’s behalf. For exam-
I    “Repair and deduct”: An additional           ple, the tenant may argue that the land-
(or, in some states, an alternative) option       lord has constructively reinstated the
for tenants is referred to as “repair and         tenancy, or that the landlord has unclean
deduct.” Under this remedy, tenants whose         hands and should be precluded from pur-
landlords refuse to make necessary repairs        suing a claim against the tenant. The ten-
may pay for the repairs themselves and            ant should raise all colorable affirmative
deduct the cost from their rent payments.         defenses in the answer. If the tenant
Many states that allow “repair and deduct”        desires a jury trial, this is also the time to
limit the amount tenants may spend in this        file this demand.

    3 42  U.S.C. §§ 3601 et seq. (2000). The Fair Housing Act also prohibits discrimination in
      housing on the basis of race, color, national origin, sex, religion, and disability. Some
      states have statutes that give tenants stronger protections than the Fair Housing Act. For
      further discussion, see Crystal B. Ashley, An Introduction to Fair Housing Law, in this
    4 States that do not protect tenants against retaliatory eviction are Alabama, Colorado,
      Georgia, Indiana, Oklahoma, Pennsylvania, South Dakota, and Wyoming. JANET PORTMAN

POVERTY LAW MANUAL FOR THE NEW LAWYER                                                                 129

                If the court enters judgment for the     and complaint on the tenant’s part. Pro
           landlord, the judge may be persuaded to       se litigants are often summarily dealt with
           stay the eviction for a short time, up to a   by the courts. Legal services attorneys may
           few weeks, in cases of extreme hardship       be able to argue that the pro se litigant
           or to give the tenant time to find a new      was denied a fair hearing on the merits.
           home. Otherwise the eviction moves im-        Depending on the state, the tenant may
           mediately into the hands of the law           allege a meritorious defense to the com-
           enforcement agency whose job it is to         plaint; additionally or alternatively the ten-
           execute the court’s order.                    ant may allege that vacating the default
                                                         judgment would be in the interests of jus-
           Reopening and Vacating                        tice. Once the court vacates the judgment,
           Default Judgments                             the tenant can raise any defense that the
           Due to eviction proceedings’ fast track       tenant could have asserted initially.
           through courts, and often compounded
           by the questionable nature of service of      The Eviction
           process in low-income neighborhoods,          As noted, law enforcement personnel
           legal services attorneys often find that      must carry out the actual eviction. Fol-
           their clients do not seek help until after    lowing the court’s entry of judgment, the
           the court enters judgment for the land-       landlord gives a copy of the order to the
           lord. Sometimes clients are simply unable     sheriff or marshal, who serves the tenant
           to find legal help before the return date;    with notice of the eviction date. If the ten-
           other times they know nothing of the          ant is still occupying the unit on that date,
           eviction proceedings until the sheriff or     the sheriff removes the tenant’s posses-
           marshal nails an eviction date to the door.   sions and secures the unit to prevent fur-
           Even at this point, preventing the evic-      ther entry by the tenant. Sometimes, with-
           tion may not be too late.                     in very limited parameters, the date for
                A tenant sometimes has grounds for       eviction may be subject to negotiation
           a motion to vacate a default judgment, for    with the sheriff if, for example, the tenant
           example if service was defective or failed    can give evidence of having access to a
           to result in actual notice of the summons     new apartment within a day or two.

130                                                                 National Center on Poverty Law

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