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.