Gathering Evidence for the Lawsuit
Hold onto your eviction notices. Before your landlord can evict you, he or she must give you notices. These notices should tell you why you are being evicted. For example, you might be behind on your rent or you might have broken some other term in your lease. Don’t throw these notices away. Also note the date you received the notice. Usually, your landlord must give you the notices a certain number of days before bringing a lawsuit to evict you. Your state law typically sets out precise requirements for these notices. If your landlord didn’t follow the law, then you will have a stronger argument for illegal eviction.
Read your state's requirements. You should find your state’s requirements for evicting tenants. You can find this information on the Internet by searching “your state” and “eviction.” You can also visit your nearest law library. This might be located in your courthouse or at a nearby law school. Tell the librarian that you want to see the laws on eviction.
Document that the eviction is retaliation. It is illegal to evict you for exercising a legal right. For example, if you report your landlord to a Department of Health and Safety, your landlord cannot turn around and evict you as punishment. Document your communications with the health inspector. For example, preserve any letters or emails and get a copy of the inspector’s report. Also hold onto any communications from your landlord. If he is angry that you reported him to the authorities, then you can use that evidence as some proof of retaliation.
Gather evidence of the landlord using self-help. It is against the law for your landlord to try and physically remove you from the apartment. Check for evidence of prohibited “self-help.” If your landlord used one of these methods, then the eviction is illegal: The landlord can’t keep you out of the apartment by changing the locks. The landlord also can’t physically remove you or your stuff from the apartment. The landlord can’t have your utilities shut off. Also, your landlord can’t threaten you or order you to leave.
Call the police. If your landlord threw your stuff onto the sidewalk, then you should call the police. Tell them that your landlord is illegally evicting you and wait for the officer to arrive. You will need identification to show the officer that you live in the apartment. Depending on your state, the police can order the landlord to let you back in. The police can also arrest a landlord who refuses. You should also get a copy of the police report that is filed. This is good evidence of the illegal eviction.
Meet with a lawyer. Bringing a lawsuit against a landlord is very challenging. Typically, the landlord will have a lawyer, so you will be at a disadvantage if you don’t hire an attorney. Nevertheless, not everyone can afford a lawyer. Even if you can't, you should meet with a lawyer to discuss the strength of your case during a consultation. You can find a lawyer by visiting your state or local bar association and asking for a referral to a landlord-tenant lawyer. You can then schedule a half-hour consultation and discuss your case. Ask how much the lawyer charges for a consultation. If you have a low income, then you should check if there are any legal aid organizations nearby. Legal aid organizations provide free legal services to people in financial need. To locate an office, visit the Legal Services Corporation’s website at www.lsc.gov. You may also be entitled to attorneys’ fees if you win your illegal eviction lawsuit. In this situation, a lawyer may be more willing to represent you, especially if you have a strong case. Because landlord-tenant law is so complex, you would probably benefit from hiring a lawyer.
Discuss what you can get from the court. At your consultation with your lawyer, you should discuss what kinds of remedies are available. A remedy is whatever the court will order if you win the lawsuit. Depending on your state, there may be many different remedies: You can be compensated for having to find temporary shelter. Hold onto your receipts if you had to rent a motel room to stay in. You can be allowed back into the apartment and stay there for a certain period of time rent free. You can be compensated for any damage to your property because of the legal eviction. This can include spoiled food if the electricity was shut off or property stolen or damaged when it was placed on the sidewalk. Write down what was damaged and how much the item costs to replace. You can be compensated for any physical harm if the landlord used violence. Get copies of medical records that show the injury. You can also get compensation for any emotional harm caused by the illegal eviction. Finally, your state law might award you a certain amount of money as punishment against the landlord for the illegal eviction. You might be able to get two or three months of rent or some other amount.
Filing Your Lawsuit
Find the right court. You want to sue the landlord in the right court. Generally, this will be the civil court in the county where you live. If you have a lawyer, then he or she will handle filing the lawsuit. You might also be able to sue in small claims court. Small claims courts handle cases that have a low dollar amount. Ask the court clerk what the maximum amount you can sue for is. In small claims, you don’t need a lawyer. Some cities have specialized housing courts. For example, in New York City, you can sue for an illegal lockout in Housing Court.
Get a complaint form. You start a lawsuit by filing a “complaint” with the court. In this document, you identify the landlord and explain why the eviction was illegal. Many courts have “fill in the blank” forms you can pick up from the court clerk. These forms make it easy to complete a complaint. If no form is available, then you will have to draft the complaint yourself. You can use this sample from the Civil Law Self Help Center as a guide: http://www.civillawselfhelpcenter.org/images/landlord-tenant/tenants-complaint-for-illegal-lockout-fillable.pdf. Be sure to revise it to suit your situation.
Fill out the complaint. You should print neatly so that the court staff can read your information. If you can’t print neatly, then use a typewriter. Some forms can be downloaded. In that situation, you can insert the information into the PDF and then print it off. Each complaint form is different, but you will typically be asked for the following: your name, address, and contact information (phone and email) the landlord’s name and address your lawyer’s name, if you have a lawyer the amount you pay in rent what you are suing for (your remedy, such as money damages or being let back into the apartment) the facts surrounding the illegal eviction
File the complaint with the court. Make several copies, then take your copies and the original to the court clerk. Ask to file the original. The clerk should stamp your copies with the date. You will probably have to pay a filing fee. The amount will differ according to the court. If you can’t afford the fee, then tell the clerk. You should be able to complete a fee waiver form.
Serve notice on the landlord. You must give the landlord notice of your lawsuit. You can provide notice by sending a copy of your complaint and some other forms provided by the court clerk. You should ask the clerk for what are acceptable methods of service. Generally, you can make service in the following ways: Have someone 18 or older make hand delivery to the landlord. This person cannot be a party to the lawsuit (such as you or a roommate). Hire a private process server to make service. You can find process servers in your phone book or online. You have to pay a fee, which typically ranges from $45 to $75. In some courts you can also mail notice to the landlord. You should mail it certified mail, return receipt requested.
File an affidavit of service. Whoever makes service on the landlord must fill out a form. This form is usually called a Proof of Service or Affidavit of Service form. You can get it from the court clerk. After the form is completed, it must be filed with the court. Be sure to keep a copy for your own records.
Going to Court
Prepare for trial. If you have a lawyer, then he or she can get witnesses lined up and prepare exhibits. However, if you are representing yourself, then you should do the following: Identify any witnesses. You will have to give your landlord a list of all witnesses you intend to call. Be sure to put your own name down if you will testify. You can only have witnesses testify if they have personal knowledge of whatever it is they are testifying about. In other words, a witness can only testify as to what they personally observed. Send a subpoena. A subpoena is a legal command for a witness to show up to court on a certain day and testify. You can serve a subpoena on any witness you are afraid might not show up. Generally, you can get subpoenas from the court clerk. Prepare exhibits. You should take out any document you want to introduce, e.g., your eviction notices or your lease agreement. You will need to put an exhibit sticker on them and number them in the order in which you introduce them at trial. You can get exhibit stickers from the court clerk or from an office supply store.
Arrive on time. You should not be late for your trial or hearing. If you are, then the judge can dismiss your lawsuit. Be sure to give yourself enough time to find parking and to pass through any courthouse security. Before entering the courthouse, dispose of all food and beverages. You don’t want them in court. You should also turn off all electronic devices (including cell phones) before entering court.
Present your evidence. You will go first. You should present your witnesses and documents in some sort of order. If you are in small claims court, things might be informal. For example, you probably won’t make an opening statement. Instead, you will simply begin describing your case and showing the judge any supporting documents. You can have witnesses testify if it would help. For example, a neighbor might have seen the landlord changing the locks on your apartment door. You can have the witness testify to this fact.
Testify on your behalf. You will probably testify. In regular civil court, your lawyer can ask you questions. If you have no lawyer, then you will probably get on the witness stand and give your testimony in the form of a speech. You can expect the landlord’s attorney to cross-examine you. In order to prepare, you might want to do a trial run with your lawyer. This practice can help you get comfortable with cross-examination. Remember the following tips for being an effective witness on the stand: You should dress professionally, as if you were attending a job interview. For tips, see Dress for a Court Hearing. Listen closely to the question. If you don’t understand it, ask the lawyer to rephrase it. Don’t guess as an answer. Always stay calm. Sometimes, lawyers can get argumentative. But you will benefit by taking a deep breath and not snapping back or being sarcastic. Always maintain your self-control. Tell the truth. If you don’t know the answer to something, then say “I don’t know.”
Listen to the landlord’s evidence. The landlord will present evidence second. You shouldn’t interrupt the landlord. Instead, stand quietly. You will have a chance to respond or to ask the witnesses questions. You should have received a list of the landlord’s witnesses ahead of time. You should have written up a list of questions you want to ask them. In an illegal eviction lawsuit, the landlord might not have any witnesses.
Wait for the verdict. After all evidence has been submitted, the judge will deliver the verdict from the bench. In rare circumstances, the judge might need to take some time to think about the case before delivering a verdict. If you lose, then you might want to bring an appeal. You should talk this over with a lawyer. Appeals can be costly and time-consuming. If you want to appeal, then you shouldn’t delay. Courts typically give you only a short amount of time after final judgment has been entered to file a Notice of Appeal form, which you can get from the court clerk. In some states, the amount of time can be as little as 10 days.
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