The tenant in an eviction case can be tossed into the streets within weeks of being sued.
It’s horribly unfair, especially when you consider there’s usually a lawyer on the other side. Fairness, strike one.
There’s no civil right to be poor
Eviction cases move quickly because they’re decided in what’s called a “summary procedure” with sharply abridged rights and rules.
It’s designed for lightning fast resolution because a tenant who can’t afford the rent is causing the owner of rental property to lose money each day the rent goes unpaid.
But that’s part of the problem with summary procedures. Despite the court’s insistence that it’s neutral and objective, in reality the defendant is assumed liable as soon as the case is filed.
In an eviction case, that means the judge assumes the tenant has chosen not to pay rent and has no right to possession. Fairness, strike two.
What happens to that presumption of guilt and liability when the defendant in an eviction case claims an interest in the property? Might they get a decent chance to make their case?
If eviction proceedings were fair, possession alone would give the tenant a property interest. Unfortunately, it usually doesn’t.
But perhaps the tenant has improved the property in some way — a major repair, a garden, anything that added value to the place.
Or perhaps there’s a way to read the written lease or verbal rental agreement to give the tenant some additional rights, like in a rent-to-own deal.
Claiming an interest in the property could be worth a try when being kicked out of your home.
One advantage of representing yourself in court is that you’re not bound by the legal profession’s standards.
You can do whatever’s necessary to get more time in your home. There’s no need to play fair in unfair circumstances.
All’s fair in love and war
The beautiful thing about claiming ownership — any interest in the property at all — is that it can no longer be resolved through a summary eviction proceeding.
No magistrate court has jurisdiction over a case involving competing claims to real property.
When you claim an interest in the property, the case will be kicked upstairs to a real court, where litigation can potentially take years (not to mention truckloads of legal fees) if you play your cards right.
That will make your landlord think more soberly about any late or lost rent.
I’ve been involved in an eviction case or two, and I’ve witnessed lots of eviction hearings.
In my experience, what you don’t want to do as a tenant is come to court with an explanation for not paying, or a request for more time to move. You’ll be ordered to pack your stuff and pay the landlord back rent plus court costs.
Yes, solid defenses are available when you’ve missed a rent payment (uninhabitable dwelling, rent deduction for repairs, waiver, retaliation, etc). But they’re all hard to argue, and every state has a different set of loopholes.
Even when you have a good defense, there’s no guarantee the judge will hear it. Magistrate judges are notorious for ignoring the law in favor of their own sense of right and wrong.
And if you lose, even with a good defense, you often must post a supersedeas bond (typically the judgment amount) to appeal the eviction and get a real court to hear your case.
But if you could afford a supersedeas bond, you probably wouldn’t be in eviction court.
Fairness, strike three. You’re out.
This is not legal advice
So why not skip the madness and go straight to real court?
I am not a lawyer and I don’t give legal advice, but here’s what I’m doing the next time I’m sued for eviction:
Move to dismiss the case for lack of subject matter jurisdiction on the grounds that I’m the rightful owner in possession.
I’ll have to allege some facts to back up my claim, which means I’ll need to review the relevant case law.
(Note well: I could face money sanctions or worse if I’ve lied to the court. Try not to do that.)
But a motion to dismiss on those grounds ought to get the case kicked upstairs at no cost to me, and I can start applying some rules of civil procedure there.
Then we’ll see if the landlord and I can’t work things out on friendlier terms.
What do you think? Could this work in practice? Share in the comments below.
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Indeed there are 2 competing interests / rights [Title and possession] at stake in an eviction hearing
If Title and Possession ‘rights’ were not bifurcated, there would be no legal basis for a rental contract.
IF you are lucky enough to get a hearing first. Yep a hearing is usually required BEFORE eviction.
See SOLDAL v. COOK COUNTY, 506 U.S. 56 (1992)
Radvansky v. City of Olmsted Falls, 395 F.3d 291, 2005 Fed.App. 0024P (6th Cir. 01/14/2005)
If force is used to evict, arrest for trespass, turning off utilities, etc. the tenant has a basis for a Federal civil rights suit of Law Enforcement is used.
Using the local blue gang to arrest the tenant may happen, OR the landlord may change the locks. Or the landlord may cut off water, electric or natural gas utilities. None of the above is legal here and likely not legal in most other jurisdictions. Be sure to check local state, county, and city laws BEFORE you get notice from the landlord / Title holder. Possession owner? May work. I don’t see that in my state, but I will look into that angle.
My eviction court does follow or should I say the law says the court will follow all Rules of Civil Procedure. My Summons stated answer within 7 working days, Law requires 5 days minimum. BUT the Summons was not accompanied by a copy of the verified/sworn to, complaint. That detail caused the Summons to be invalid.
I did not answer nor appear at that first hearing.
The following day, I went to the courthouse and asked to “view” the record. The desk clerk looked up the case and printed a copy of the summons. NOT what I asked for. I asked to “View” the court record. Now the court record is public and anyone under law can view the court record and in my jurisdiction there are penalties for refusing to allow the viewing of a court record, unless sealed. The clerk gave me a dirty look but retrieved the paper court record. Yep, there was a summary judgment against me. But the complaint was signed by one of the attorney’s office help, and notarized the same day that the summary judgment was entered against me. The court did not have jurisdiction to hear my case due to the Service violation, and the complaint was not properly signed. The date of notary proved that the complain could not have been served as required. By state law, either the plaintiff or the plaintiff’s attorney must sign the complaint. Another violation.
Moved to reinstate. Three days after the initial hearing. A valid appearance. Denied.
Court sua sponte [no record of a motion by plaintiff’s counsel] entered the eviction order. 7 days after the initial summary judgment. Law requires an additional hearing with proper summons before eviction order IF there is an appearance. Another violation.
I filed a motion to set aside void judgment based on invalid initial default judgment.
Opposing attorney did not even bother to appear. Summary dismissal. Court clerk grinned.
I give notice of appeal to the appeals court. [Some subjects can and do go directly to appeals from this general sessions court.] I drove the notice of appeal to the appeals court in a distant city, with a request to stay eviction. But the appeals court moved too slow. . .
Evicted
Appeals court ordered the appeal transferred to my local county court. Sessions court clerk received the order but refused to honor the order. I go to the circuit court [county trial court with general subject matter jurisdiction for every trial.] asked about getting the case moved up, including presenting the appeals court order. Trial court clerk phoned the sessions court clerk, why not send the case file? Defendant needs too get Writ of Certiorari. Really?? Not for an appeal of right. The state appeals court did not ask for Writ of Certiorari. I wait. Go to the Trial court clerk again. Some other excuse by the Sessions court clerk.
I file in the trial court a petition for Writ of Mandamus. Bond by Oath of indigence, Approved. Ordered without a hearing.
File moved. My vehicle broke down on the day of court. I failed to show. Default.
Filed notice of appeal back to the Appeals court. Trial court is required to send the case file to appeals without cash bond if the trial court allowed the appellant to proceed In Forma Pauperis [Indigent]. This court clerk sends notice that no bond had been filed for the appeal, ignoring the prior approval.
I get a Show Cause order from appeals court.
I send a copy of the lower court’s approval and a motion to reinstate the appeal.
The Appeals court denied Motion to Reinstate as Moot. No order of dismissal had been entered. OK
Appeals has also ordered the Trial court to send the file to appeals.
I file a Notice of File Designation. To make sure that the invalid summons, invalid complaint etc are all included in the record that is sent to appeals. Without the File Designation the document that I need the most would normally be stripped from the record.
Trial clerk stated they had 45 days for Jul 3, 2017 to send the file and that I would get a notice when the file is sent.
I expect to get a notice from the appeals court on the file arriving at appeals.
Lots of Fun and games.
Ken, what a runaround they gave you just to get a fair day in court! Judges and clerks in eviction courts are so used to beating up on pro se litigants that your skipping the initial hearing must’ve been quite a challenge to their expectations.
I hope the eviction was only on paper and that you’ve been able to stay in your home. If not, I’d think you’ve got a serious damage award coming your way. Thanks for sharing your story!