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.

Defenses

In an eviction case, your landlord will file a summons and complaint with your local district court. In the complaint, your landlord will list reasons why you should be evicted. In your answer to your landlord’s complaint, you can deny what your landlord said or give other good reasons why you should not be evicted. These are known as defenses.

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 nonpayment. Tom will confirm that he did not pay the rent but he will also say he had a good reason — 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. To learn more, read Tenant Rights and Responsibilities.

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 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. You can also 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 judge or jury 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. Notice can be 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 made repairs yourself or withheld part of the rent because the home was not fit to live in.

Be sure you do not spend the money because the judge 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.

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 can't do any of the following:

• Force you out 

• Remove your property 

• Change the locks 

• Block the doors

• Make it impossible to use your home by cutting off gas or electricity

• Create 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. It can also be used 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?

In most eviction cases, the landlord must give the tenant (you) a demand for possession or a notice to quit. This must be done before the landlord can file a complaint with the court.

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 these ways:

• By giving it to you in person (personal service)

• By giving it to a member of your household who is old enough and responsible enough to accept it, with a request that it be given to you (substitute service)

• By mailing it to you via first class mail

• By sending it to you electronically (by e-mail)

In order for your landlord to be able to serve you by e-mail all of these must happen:

• You must have agreed to be served by e-mail in writing (this agreement could be in your lease)

• Your landlord must have sent you the agreement or confirmation by e-mail

• You must have replied to your landlord’s e-mail

If you change your e-mail address, you must let your landlord know about your new e-mail address in writing, or go through the process listed above for your new e-mail address.

If your landlord didn’t give you the required notice, you may have a defense in an eviction case to recover possession of the property in all of the following situations:

• You violate a lease provision where the lease allows for termination

• There is illegal drug activity on the property

• There is no written lease or it’s a month-to-month lease and your landlord wants you to move

• There is 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:

• Nonpayment 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 any reason listed above, it should say you must either do something or move out within seven days. For example, for nonpayment 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.

Were You Properly Served?

A copy of the summons and complaint and all attachments must be served on you by mail. In addition, you must also be served in one of the following ways:

• By having it given to you personally

• By delivering it at the rental property to someone in your household who is old enough to accept it

• By securely attaching it to the main entrance of your dwelling after failed diligent attempts

This means you should get two copies of the summons and complaint in order for service to be proper.

Your landlord can’t be the one to serve you. A process server often serves paper, but it can be done by other people, too.

Your landlord has to prove to the court that you were properly served. This is done by filling out the proof of service at the bottom section of the first page of the summons form, and filing it with the court.

Your landlord must make sure you are served with the summons and complaint at least three days before you must go to court.

If you are not properly served, you can raise this as a defense to eviction.

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 called 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, 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.

Counterclaims

You may also have counterclaims 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 made repairs you repeatedly asked for, and you 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. Some examples of what you could ask the court to order your landlord to do are:

• Making any needed repairs, which you should describe in detail to the court

• Allowing you to move back into the home if you were 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. The better your evidence is, the easier it will be to show the judge or jury, and your landlord why you shouldn’t be evicted. 

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.

In 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. To learn more about going to court, read 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 nonpayment.

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 will need to present his evidence.

You can use the Do-It-Yourself Answer to Eviction Complaint tool to create your answer. After the tool guides you through responding to the complaint, it will ask you questions to see which defenses and counterclaims might apply to your case.

If you want to include a defense or counterclaim that you did not raise at the beginning of the eviction case, you can ask the judge for permission to amend your answer to include your defense or counterclaim. Make sure to do this as soon as you realize you have a defense. It is up to the judge whether or not you’ll get to bring up the defense or counterclaim. The judge is more likely to allow you to amend your answer if it would be unfair not to let you change it.

Should You Sign a Settlement Agreement?

If you file an answer with defenses or counterclaims, your landlord or your landlord’s lawyer 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.

To learn more about settlements and negotiations, read Mediation and Other Forms of Settlement and Settlement and Negotiation Strategies.

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.

To learn more about what to expect in court, read Going to Court in an Eviction Case and What to Expect When You Go to Court. After you’ve gone to court, and you need to know what to expect next, read Eviction After Court is Over.