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Defenses Against Eviction

Authored By: Texas RioGrande Legal Aid
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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).

[Note: If you are in public housing, federally subsidized housing or have a Section 8 voucher, there are many more defenses available. For example, you may have a defense to nonpayment of rent if the public housing authority did not reduce your rent after you lost income. Or, you might have a defense against eviction if your subsidized housing landlord did not give you proper notice required by law. Also, such a landlord must have good cause (like a serious violation of your lease) to evict you.]

Defenses against eviction are 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 violated your lease agreement. Either way, it will be up to you to raise these defenses before the judge and provide evidence to support your claims.

Here are some examples of procedure defenses:

  • Notice to vacate was given orally and not in writing
  • Eviction suit was filed before the expiration of the deadline in the notice to vacate
  • Notice to vacate did not give the tenant at least three days to vacate, and the lease does not allow for a shorter deadline
  • Notice to vacate was not delivered properly, for example:
    • It was given to someone who does not reside at the premises
    • It was given to someone who is younger than 16 years of age
    • It was affixed on the outside of the door, which would be proper only if the landlord cannot enter the premises because of an alarm system, a dangerous animal, or a keyless bolting device
  • Notice to vacate was premature, because the lease or applicable law requires the landlord to give a tenant an opportunity to respond to a notice of proposed eviction

If you have a procedural defense against eviction you may be able to convince the J.P. to dismiss the eviction lawsuit. Once your landlord corrects the mistake, the landlord will usually be able to re-file the lawsuit. Nevertheless, a procedural defense may allow you more time to come to an agreement with your landlord, prepare your case against your landlord, or move out.

Here are some examples of substantive defenses:

  • Waiver?for example, you have consistently paid late rent, and it was always accepted by your landlord, and your landlord never warned you before filing an eviction lawsuit that late rent would no longer be accepted
  • Retaliation?for example, your landlord is evicting you for your complaints about repairs that have not been done to the unit
  • Discrimination?for example, your landlord is evicting you because of your race, disability, familial status (children), age, national origin, religion, or sex
  • Landlord caused tenant to default?for example, your landlord refused to accept your rent and now is trying to evict you for nonpayment

If you win your eviction case with a substantive defense, the J.P. will grant you possession of the unit, and, if the landlord does not appeal the judgment, the landlord cannot re-file an eviction case for the same reason.