Lesson 4
Defenses to Evictions
It is possible that the landlord may never set eyes on the defendant tenant or anyone representing him, during the entire course of the legal proceedings surrounding an eviction. However, don't count on that kind of good luck every time. It has been our experience that in approximately half of our eviction lawsuits the defendant tenant will make an appearance at some point in the process. Sometimes they don't offer any defense or dispute any facts, but show up simply because they received a summons and therefore believe they must be there.
As we shall see later, this is not always a misfortune for the plaintiff landlord. To our knowledge, there is no legal proceeding that does not permit the defendant in any proceeding to come forward with his side of the matter at issue. Just as basic and just as true is the principle that defendants have a right to know that the proceeding is to occur, when it is to occur, and what it will be about.
Now, none of this is to imply that the defendant has the right to come into court and describe every stale argument and difference that may have ever arisen between himself and the landlord. He is supposed to be restricted to raising defenses that are relevant and pertinent to the matter at hand. The central issue before the court will be the question of whether the defendant can be legally evicted. Thus, only arguments that have the legal power to affect that issue are permissible.
Following are some of the defenses that the defendant can legally raise. As you read them, bear in mind that any of them can be raised, whether they are true or not. Once the defendant has raised them he then, of course, has the task of proving them:
RETALIATORY EVICTION: No tenant can be evicted in retaliation for the exercise of his legal rights. If the defendant can establish that he has exercised certain rights for which the landlord might attempt to retaliate by eviction, he has raised a valid defense. Furthermore, forty-one states have laws that strongly helps the tenant with this defense. If, for example, the tenant filed a complaint against the landlord with the local building department before the eviction procedure was initiated, the tenant is entitled to a legal PRESUMPTION that the eviction is truly in retaliation for that complaint. This does not mean that the landlord automatically will lose. It does mean that very strong proof must now be provided to overcome the presumption. Among the possible ways in which the landlord might attempt to overcome the heavy proof burden such presumptions create would be
(1) to point out that the eviction is the result of unpaid rent, continuing damage to the premises, or a continuing health hazard.
(2) to point out that the tenant's appeal to the authorities resulted in no finding of any fault in the subject premises or in the operation of those premises.
If more than the statutory time has elapsed, the landlord is entitled to a similar presumption that his action is NOT retaliatory.
BREACH OF COVENANT: The laws of most states makes the payment of rent an obligation of the tenant that is dependent upon the landlord's obligation to provide a fit place for the tenant to live. This is called the "Covenant of Habitability" and has the effect of relieving the tenant of his rental obligation if he can show that the landlord did not provide "premises fit for human habitation" as his part of the bargain. It is worth noting that the Michigan Supreme Court has further defined this obligation by saying that "fit" premises are those containing all the "normal amenities", whatever that may include. This defense is primarily a defense against an eviction action for the non-payment of rent. If it is raised in any other type of action, the landlord should argue strongly that it is irrelevant.
See Warranty of Habitability for an extensive discussion of this topic.
RENT PAID INTO AN ESCROW ACCOUNT: It is not uncommon in a tenant‑landlord dispute over maintenance for the tenant to initiate the payment of his rent into an escrow account. If both the payment procedure and the account are proper, any eviction attempt based on non-payment of rent will fail upon proof of such escrow payments by the tenant. For this defense to be successful in most states, however, both the account and the manner of payments must meet certain requirements. The account itself must usually be held by a responsible 3rd party and be committed from the beginning to the automatic surrender of its funds to the landlord upon certain agreed conditions. Use of the account must be for reasons acceptable to the law. It is insufficient, for example, that landlord and tenant are embroiled in a dispute over a question of pets in the premises. It could easily be sufficient that the landlord has been cited officially for housing code violations and has not cured the deficiency within a reasonable time. It is necessary that rent payments into the escrow account be made as faithfully as though such payments were being made to the landlord. It is further necessary that the tenant be able to prove that such payments were made. It is worth the landlord's while to regularly check the status of the escrow account because an action for non-payment is proper in the event that the tenant is delinquent in such payments.
EXISTENCE OF A VALID LEASE: The current existence of a valid un-expired lease is no defense against the majority of specific grounds for eviction. If, however, the situation does not permit application of one of the specific grounds (non-payment, health hazard, etc.) then it is necessary that the lease be terminated to allow an eviction to take place. It is for this reason that it was recommended earlier that the lease contain a strong termination clause allowing both termination and eviction in the event of any breach of its various provisions. In the event that no special grounds exist and the lease has been fully and properly observed by the tenant, no eviction is possible.
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