Defenses to a rent and possession lawsuit

After reviewing the summons and complaint, you know what your landlord is demanding from you. Now you must think about possible defenses to the lawsuit. Your defense responds to the landlord’s accusations and explains why your landlord should not win. You must prove these reasons are good and that they exist. Just because you believe you have a good defense does not mean the judge will agree with you. You should use all the defenses that apply to your situation. You are not limited to only one defense.

If you have a defense to the lawsuit or a counterclaim against your landlord, put them in writing and file it with the court by giving it to the court clerk. Keep a photocopy and have it “stamped” by the clerk to prove you filed it. Give your landlord or landlord’s attorney a copy.

Landlord refused payment before the lawsuit was filed

For example, you presented the landlord the full amount of money you owed prior to the lawsuit but the landlord refused to accept the money. You should ask the judge to dismiss the case because you offered to pay the landlord the money you owed and the landlord refused to accept the money. You will need proof such as a letter from the landlord refusing to accept the money, a written check or money order, or a witness to the landlord’s refusal. If you have no proof, you can offer to pay the amount claimed plus court costs in front of the judge. Make sure you have a certified check, money order, or cash for the full amount with you. Full payment of rent owed plus court costs is your best defense.

Warranty of habitability

For example, your landlord has let the building run down and has not fixed major problems such as lack of running water, even after being notified of such problems. You should ask the judge to let you stay and either continue to pay a lower rent, make the landlord pay you for damages caused by the landlord’s failure to make needed repairs or excuse you from paying all, or part of, the back rent owed. You will need proof such as photos, letters to your landlord asking for repairs, copies of code violation reports or witnesses such as the building inspector. In some cases, the court may ask for proof that you have set aside the money you did not pay. 

The person suing is not the landlord

Only your landlord can sue you for rent and possession.

Attornment

If the person suing you claims to be your landlord but has not shown you the deed to the property, and you have not received any reliable information concerning ownership of the property, ask the court to dismiss the case for lack of “attornment.”

Suing for something that is not rent

A landlord must not file a rent and possession lawsuit if you do not owe any rent. If your landlord is suing you merely for late fees, security deposit, or property damage, but not for any rent due, then you should ask the judge to dismiss the lawsuit.