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It’s July 27, 2020 right now and The Eviction Tsunami is here.  If you are a nervous tenant or maybe a kind-hearted probate lawyer whose cousin just received an eviction lawsuit, watch on because eviction legal actions are unlike any other.  You have to know how to fight.

I begin with 2 disclaimers:

  • First, I slant pro-tenant so, Landlords, I understand your frustration and problems and the mortgage you have to pay – trust me – but this is tenant oriented. 
  • Second, landlord/tenant laws vary state by state and I will only have time to give you the important things to be aware of in this Legal Brief – otherwise it will become Legal Long.  And no one likes that channel.

We start with a sad statistic. According to an article from CNBC, over 32% of households failed to make all of their rent payments in July, right before all of the eviction moratoriums are ending. 32%. And now it seems that Congress is not approving the additional $600 unemployment payment.  This is going to be horrible.  I heard from a lawyer friend of mine that does evictions for landlords that she has about 500 cases to file next month – and she is just a small one-person practice.

So, it’s coming and here’s the things you have to know.

First Thing to Know

One, an eviction case moves much quicker than any other kind of lawsuit.  Landlords long ago got legislatures to speed up the process of eviction and maybe rightfully so.  Lawsuits take months, years to complete so eviction lawsuits are super streamlined.  Upon receiving the eviction lawsuit, you only have days – sometimes as little as five days to respond and avoid a default. If a client calls you a week after the eviction lawsuit is served, forget it, it’s too late.

Massachusetts is one of the more lenient jurisdictions and look how tight the “litigation” process is.  You have to Answer the Complaint in 7 days and the trial is within 23 days of the Answer.  The whole litigation process is designed to be complete in 30 days.

Second Thing to Know

Next, Landlord/Tenant law is focused on pre-suit requirements.  State laws go into much detail and have very complex laws on what a Landlord must do in order to evict a tenant. The laws require Notices served or posted within a certain number of days after non-payment.  The first is a Notice to Pay Rent or Quit – this is what is served when you miss rent. 

Because statutory pre-suit requirements are strictly construed, the very first thing you look for is whether the Landlord put the exact correct amount of rent that is owed and put the correct move out date.  If ANYTHING is off, that can be a complete defense to the eviction lawsuit, forcing the Landlord to start all over and having the lawsuit dismissed.  Hint: how was the tenant given the Notice – they will sometimes mess that up.

So, failure of conditions precedent is your first line of defense.

Third Thing to Know

The next thing to keep in mind is that if you are going to attempt to argue over the AMOUNT due and owing, you almost always are going to have to deposit the disputed rent with the Court so in case you lose, the Landlord can get paid.  This is usually going to be a losing proposition in these coming months because the problem is that people don’t have jobs and don’t have money to pay.

And if you don’t pay the rent into the Court, you are going to lose as though you hadn’t even Answered the Complaint.  This is KEY.  You won’t even be able to say anything to the Judge – no money, no argument.  Remember that.

But, in every state there are exceptions to this rule and again, I don’t have time to go into every State’s law, but let’s discuss the Florida Statute for example. 

Florida requires that the disputed rent be paid into the Court Registry.  But hiding in there, if you really look hard is an exception – you have to pay into the registry OR, I love the word OR, OR file a Motion to Determine the Amount of Rent.  So, your job in fighting an eviction is to look at the landlord/tenant statute in your State and find the exceptions to the deposit.  Fitting your argument into an exception will allow you fight the eviction without having to pay the full amount of rent.  Even if you lose, it will buy you time.

And if you cannot find a defense or you lose in Court, the final arrow in the tenant defense quiver is bankruptcy.  The automatic stay when you file Bankruptcy will stop an eviction right away.  It then is required of the Landlord that he or she ask the Bankruptcy Court to lift the Stay and allow the eviction to continue.

In my experience, this can allow a tenant to get out from some onerous payments AND bring the Landlord to the table as far as working something out with them because you’ve added a layer of difficulty to kicking you out of the place.  If anything it then requires the Landlord to find a lawyer admitted to the bankruptcy Court in your area – and that takes time.

SO remember, you have to move fast in defending an eviction, look at the Landlord’s pre-suit requirements very closely, and find an argument to make that doesn’t require payment of the rent.  If all else fails, think about bankruptcy if things are that bad.

I know times are bad for a lot of people right now.  Take care and best of luck to you and yours.

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