Types of defenses

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.

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)

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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