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Summary

The economic and mortgage crisis has claimed a high number of American casualties. Many tenants are facing eviction since landlords are unable to the pay the mortgages on their houses. If you are a tenant facing eviction and wish to contest it a real estate attorney can help you.

What is an eviction?

An eviction is a court action a landlord must use to remove a tenant from the rented property. The tenant should receive a "Notice to Quit" sent by the landlord, that states that the tenant should evacuate the area by the specified date along with the reason for the eviction.

When can I be evicted?

Assuming the tenant has a valid, written lease, the landlord can evict if:
  1. The property stays occupied after the lease has ended
  2. The rent is paid after the day it is due
  3. Illegal activity takes part while the premises is occupied
  4. The lease is violated in some way
Potential Recovery

The Mortgage Reform and Anti-Predatory Lending Act (HR 3915) states that tenants' leases would survive foreclosure, and that month-to-month tenants would be entitled to a 90 notice of termination. A real estate attorney can help you determine what you are entitled to as a tenant.

There are several instances where a tenant may be able to reclaim some of the damages from the landlord;

Retaliatory Eviction – If a tenant is evicted after notifying government agencies of violations or if eviction takes place after the tenant has requested repairs be made, there may be a claim against the landlord.

Improper Notice - If the landlord fails to provide sufficient notice prior to filing a court action or fails to serve the notice, the tenant may have a defense to the eviction.

Constructive Eviction – If the rented property is in a condition that the tenant is unable to live in and the landlord does not correct the problems in a certain amount of time, the tenant may not be required to pay the rent.

Fair Housing - The Fair Housing Act prohibits various types of discrimination against any housing transactions including rentals and leases.

Acceptance of Partial Rent - If a landlord accepts a partial payment for rent after an agreement with the tenant has been made, there may be a grace period where an tenant eviction cannot take place.

Failure of the landlord to maintain the premises - If the landlord has failed to maintain the property and notice has been given regarding the repairs needed and no response is received, a tenant may be able to take care of the repairs and later deduct the costs from the rent.

Expert Opinion

Real Estate Attorneys can handle several types of real estate / tenant rights cases including:
  • Eviction
  • Suing Your Landlord
  • Rent Control
  • Landlord Intrusions
  • Property Sales
  • Security Deposits
  • Breaking a Lease
  • Foreclosure Eviction
  • Defective Conditions
  • Tenant Credit Blacklisting
There are many specific local and state laws that govern the type of action that is allowed in a tenant claim, so it is recommended that one speak to a real estate attorney who is familiar with the corresponding laws.

Consulting a real estate attorney is the first step in preventing eviction or reclaiming damages incurred while occupying the rental property.

Eviction Questions

How long can I stay in my home after an eviction case has begun?

The eviction cannot start until the specified date found on the “Notice to Quit”. Once the summons is served, the return date should be at least six days later and after two more days, the court appearance can be filed.

The length of time depends on the speed of the case and if no action is taken on the tenants side, it can take as little as 10 days to be evicted. It is advised to seek a real estate attorney to discuss specific laws pertaining to the case and to help delay or contest an eviction.

Do I have a claim against my landlord for damages due to a foreclosure?
A tenant may have a claim against their landlord for damages if:
  1. They are evicted because of a foreclosure on the house
  2. The lease has not been defaulted on and all expected rent has been paid
  3. The mortgage was made while the lease is active

If the above conditions have been met, the landlord may be held liable for whatever damages the tenant incurs due to the eviction. Laws vary from state to state so it is important to speak with a professional if any kind of notice has been received from the landlord or the court.

What happens if my claim goes to court?

The case will be scheduled for a trial and a court date will later be set. It is important to make the court date in order to try to settle your case with the landlord and inform the court of your side of the story.

News

Supreme Court Preserves Tenant Wrongful Eviction Claims
The California Supreme Court ruled that landlords filing bad faith lawsuits against tenants are virtually immune from liability. The ruling in Action Apartment Association v. City of Santa Monica, S129448 preserved the right of the tenant to sue over a bad faith eviction notice, a longstanding right that had been revoked by the Court of Appeal.

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