Keeping Tenants Out of the Cold: Local, state and federal laws offer defenses against evictionactionsAuthor(s): LAWRENCE WOODSource: ABA Journal, Vol. 84, No. 2 (FEBRUARY 1998), p. 68Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27839840 .

Accessed: 14/06/2014 00:45

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to ABA Journal.

http://www.jstor.org

This content downloaded from 91.229.248.67 on Sat, 14 Jun 2014 00:45:03 AMAll use subject to JSTOR Terms and Conditions

mmmrn focus: landlord-tenant law

Keeping Tenants Out of the Cold Local, state and federal laws offer defenses against eviction actions BY LAWRENCE WOOD

Getting evicted always is dev astating, but in the winter it can be truly disastrous. Fortunately, many evictions can be prevented.

State, local and federal laws give tenants significant rights that can serve as the basis for as

serting successful de fenses to eviction ac tions.

The majority of tenants, though, need help asserting these defenses.

In Chicago, a 1997 study conduct ed by the Lawyers' Committee for Bet ter Housing found that only 4 percent of most tenants who appear in court pro se win their cases.

The relatively few tenants who are

represented by coun sel, however, win 43 percent of their cases.

For the lawyer representing a ten ant facing an evic tion, the first step should be to obtain every document related to the tenancy, including leases, rent re

ceipts or canceled checks, termin ation notices, a list of complaints regarding the apartment, and pho tographs of defective conditions in the apartment.

After reviewing these docu ments, determine which laws gov ern your client's tenancy. State law usually sets forth specific proce dures for terminating a lease agree ment, pursuing an eviction action, obtaining a judgment for posses sion and evicting the tenant. It may also afford your client a means for interrupting this process.

If you are in one of the many

Lawrence Wood is senior staff attorney in the Legal Assistance Foundation of Chicago's Housing Law Project.

municipalities with residential landlord-tenant ordinances, use lo cal law. And if your client resides in public housing or other federally subsidized housing, you may rely on the enhanced protections afford

Lawrence Wood: Pro bono representation has its own rewards.

ed by federal law. (The applicable regulations are codified in Title 24 of the Code of Federal Regulations.)

For instance, public housing tenants may be entitled to adminis trative grievance hearings before their leases can be terminated. Re questing this hearing in a timely manner postpones the termination of your client's tenancy, affords you an opportunity to settle the matter before it goes to court, and gives you additional time to prepare a defense.

In developing a defense to an eviction action, remember that many laws governing landlord-ten ant relations are local, and defens es that are available to tenants in one part of the country may not be available in your area. Even the laws of different municipalities

within one state may differ.

In cases in which the landlord is required to serve a termination notice, you may be able to assert that:

The tenant never received notice.

The landlord filed the evic tion action before the expiration of the statutory notice period.

The notice does not con tain language required by applic able law.

When the Money Is Not There In eviction actions for non

payment of rent, consider assert ing that:

The tenant owed no rent at the time the termination notice

was received.

The tenant paid the land lord rent due within the time al lowed by law, after receiving no tice.

The rent demanded had been withheld by the tenant pur suant to law.

The rent demanded in the termination notice represents an amount the tenant validly with held pursuant to state or local law.

The landlord's failure to maintain the premises reduced its value by an amount exceeding the rent owed by the tenant.

The tenant filed a Chapter 13 bankruptcy petition and, in

the reorganization plan, proposed to assume the lease and pay all the rent due. (This defense will not work unless the bankruptcy peti tion was filed before the lease was terminated under state law.)

In any eviction action, you may be able to assert that the landlord waived the right to pursue eviction or enforce a judgment for posses sion, or that the landlord has a re

taliatory or discriminatory motive for bringing the eviction action.

Many tenants cannot afford private attorneys. Consider their cases. In some jurisdictions, fees

may be recovered from landlords. But even if you get no fee, there are rewards in representing tenants on a pro bono basis. Few things will warm your heart like saving a ten ant from an unwarranted eviction in the dead of winter.

68 ABA JOURNAL / FEBRUARY 1998 abaj/ robert davis

This content downloaded from 91.229.248.67 on Sat, 14 Jun 2014 00:45:03 AMAll use subject to JSTOR Terms and Conditions