Types of defenses
Once you receive the notice to vacate and even before you
receive the notice from the constable for your court
hearing, you should consider whether you have any defenses
available to the eviction suit. In a nonpayment of rent
eviction case, the Justice of the Peace will not consider
most cases of hardship (e.g., car breaking down, being in
the hospital, losing your job).
If you are in public housing, federally subsidized housing
or have a Section 8 voucher, you should call your local
legal aid organization because there are many more defenses
available (e.g., you may have a defense to nonpayment of
rent if your landlord or public housing authority did not
reduce your rent after you lost income).
Defenses will be either procedural, meaning that the suit
was improperly brought before the court, or substantive,
meaning that the eviction suit is invalid because you have
not done anything to violate the lease agreement.
Watch video on procedural defense
Procedural defenses include:
Defective notice to vacate
(there are a variety of ways it can be defective):
Oral notice
Eviction suit filed too
soon
Notice is unclear
Lease non-renewals
Improper delivery
Premature notice to vacate
Failure to give tenant an
opportunity to correct (cure)
Watch video on substantive defenses
Substantive defenses include:
Waiver
Retaliation
Discrimination
Landlord caused tenant to
default
Defective notice
The landlord must follow very strict guidelines in
providing a tenant with notice to vacate the rental unit.
If the landlord fails to provide proper notice, the tenant
can get the eviction suit dismissed (through what is known
as a Plea in Abatement). Be aware, however, that even
though the case will be dismissed, dismissal does not bar
the landlord from fixing the mistake. The landlord can give
proper notice then file another eviction suit.
The defective notice defense will allow you more time to
either come to an agreement with your landlord, prepare
your case against the landlord, or give you time to move
out.
Once the landlord files the eviction suit, even if the
court or the landlord dismisses the case for defective
notice, the eviction filing will still likely appear on
your tenant history if that information has been picked up
by an agency such as Tenant Tracker which reports tenant
history to landlords.
Below are common types of defective notice:
Oral notice\
Eviction suit filed too soon after notice to vacate
Notice is unclear
Lease non-renewals
Improper delivery
Premature notice to vacate
Failure to give tenant an opportunity to correct (cure)
Oral notice
Did the landlord provide you with written notice to vacate
your rental unit before the landlord filed an eviction
suit? If the landlord failed to provide you with written
notice to vacate, you can to ask the court to dismiss the
eviction suit. Make sure you bring all documents you have
received from the landlord to the court, so that the Judge
will be able to determine whether your defense is valid.
Example: Larry Landlord told Terry Tenant that Terry was
going to be evicted. Landlord then files an eviction suit
with the Court. Terry Tenant receives the eviction papers,
but does not receive a written notice to vacate, and Larry
landlord is not able to show proof of written notice. The
Judge should dismiss the eviction suit.
Eviction suit filed too
soon after notice to vacate
Did the landlord provide a written notice to vacate at
least one day before filing the eviction suit? (Check your
lease to see if the notice period is longer or shorter, the
lease requirements for notice to vacate can range from one
day to thirty days or more.) If the lease does not specify,
or the lease is oral, then the landlord must give you
notice three days for breaching the lease before filing the
eviction suit. If the landlord filed the eviction suit
before allowing the proper time set out in the lease, the
suit is improperly filed and must be dismissed.
Example: Larry Landlord posted a written notice to vacate
on the inside of Terry Tenant's front door. That same day
Larry Landlord filed an eviction suit with the Justice of
the Peace Court. Terry Tenant shows up at the eviction
hearing and tells the Judge that the notice to vacate was
posted the same day as Larry Landlord filed the eviction
suit, but the lease requires at least three days notice
before the landlord can file an eviction lawsuit The Judge
should dismiss the suit because Larry Landlord did not wait
the required amount of time.
Notice is unclear
In the written notice, did your landlord demand that you
either pay rent or vacate? For evictions for failure to pay
rent, other breaches of the leases, or failure to move
after the lease term has ended, the notice to vacate has to
be plain and clear. A notice that says "pay your rent or
vacate" does not clearly tell you to move out and is
improper (unless the landlord has provided a prior written
notice that the rent is due and unpaid).
Example: Terry Tenant receives a notice from her landlord
that says she has to pay her rent by a certain date. Texas
law says that Larry Landlord can only give Terry Tenant a
notice to move out after the deadline for paying the rent.
The only time the Landlord can properly give you notice to
"vacate or pay" rent when the landlord has provided a
previous written notice that the rent is due and unpaid.
Example: Larry Landlord gave Terry Tenant that Terry
written notice to pay rent or move out (vacate). Larry
Landlord never gave Terry Tenant a written notice telling
Terry that she was late in paying the rent before giving
her the notice to vacate. Larry Landlord then files an
eviction suit with the Court. Terry Tenant shows up and
tells the Judge that Larry Landlord never gave her a first
written notice that she was late in paying rent. The Judge
should dismiss the suit because the landlord must provide
prior notice of rent owed if the landlord uses a "pay rent
or vacate" notice.
Lease non-renewals
Has your lease term expired but you still live in the
rental unit? If you remain in your rental unit after your
lease term ends and the lease says it will continue on a
month-to-month basis, the landlord must provide you thirty
days notice of non-renewal. The landlord must also provide
you a three day notice to vacate.
Example: Terry Tenant's lease term expired three months
ago, but the lease says it will continue on a month to
month basis after the lease term. Terry Tenant continued to
pay rent on a timely basison the first of every month. On
the fifteenth of the month, Larry Landlord gave Terry
Tenant fifteen days notice of non-renewal followed by a one
day notice at the end of the month reminding her to move
out. Terry Tenant did not find a new place to live because
she thought she had more time. Larry Landlord filed an
eviction suit in JP Court. Terry Tenant shows up and tells
the Judge that Larry Landlord gave her only fifteen days
notice to move out and shows the Judge a copy of the notice
of non-renewal. The Judge should dismiss the eviction suit
becasue the landlord must provide the proper amount of
notice for nonrenewal of the lease.
Example: With the same lease term facts as above, Larry
Landlord mails Terry Tenant a thirty day notice of
non-renewal at the beginning of the month. At the end of
thirty days, Larry Landlord posts another writen notice
attached to the inside of Terry Tenant's front door
demanding that she move in three days. The Judge should not
dismiss the eviction because Larry Landlord gave proper
notice.
Improper delivery
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