Many Nevada tenants decide to fight an eviction by asserting a laundry list of defenses, regardless of whether any supporting facts exist. Such defenses commonly involve mistakes the landlord is claimed to have made during the eviction process, ranging from alleged defects in the initial notice to assertions that the landlord is acting with retaliatory motives. Here is an overview of the most prevalent defenses Nevada tenants raise when opposing the merits of an eviction proceeding.
Timing of Raising Defenses to an Eviction Case
The process of raising the defense occurs after service of the initial eviction notice on the tenant. Upon receiving the notice, the tenant has the option to either comply with the notice (such as by paying overdue rent or correcting a lease violation), vacate the premises, or contest the eviction. If the tenant chooses to contest, they must file a Tenant’s Affidavit in court within the specified timeframe. Tenant affidavits provided by the court usually list standard defenses to the eviction. If no tenant affidavit is filed, the court will usually grant the eviction immediately and issue a lockout order, meaning the tenant loses the case.
Notice Defects
One of the most common forms of alleged landlord mistakes involve preparation and service of the initial notice. For example, the notice used may have been nonspecific or incorrect. JCRCP Rule 101 requires notices to be specific, and if the rent amount is incorrect, the notice is inaccurate and subject to challenge by way of an affirmative defense.
Notice defenses also include landlord mistakes when calculating the time when the notice would expire, resulting in premature filing of the landlord’s affidavit and possible dismissal of the claim on that ground. For example, some courts apply Nevada Rule of Civil Procedure (NRCP) 6(d), which (unbeknownst to many landlords) adds three days to mailed notices, including nonpayment and unlawful detainer notices. In addition, the notice may not have given the tenant the option to pay rent by the 5th judicial day after the notice is given.
Service of Process Defenses
Additionally, if the landlord didn’t follow the correct process for serving eviction notices, the tenant can challenge the eviction. In Nevada eviction notices are required to be served by: (1) personal service, (2) leaving a copy of the notice with a person of suitable age and discretion (followed by a mail copy to the tenant) and (3) posting a copy of the notice in a conspicuous place on the leased property (followed by a mail copy to the tenant).
Payment-Related Defenses in Non-Payment of Rent Evictions
One common defense to a non-payment of rent eviction is that the landlord accepted partial payment of the amount due. Doing so would invalidate the notice on which the eviction case is based, likely resulting in dismissal of the lawsuit.
The tenant may also assert that he or she tried to pay the rent and that the landlord refused to accept it for improper reasons. For example, the landlord may have refused the payments because the tenant would not pay additional charges, such as attorney fees, collection fees or other charges not authorized in the rental agreement. This would be improper because a landlord cannot refuse to accept rent offered after a notice simply because the tenant has not paid collection fees, attorney fees or other costs other than rent, a reasonable charge for late payments of rent or dishonored checks, or a security. NRS 40.253(9). In addition, there is a presumption that the tenant does not owe late charges or charges for dishonored checks unless these terms are in a written agreement between the landlord and tenant exists that authorizes such charges.
The tenant may also assert that he or she made other arrangements with the landlord about paying the rent (like agreeing to maintain the landscaping in exchange for a reduction in rent) but that the landlord did not honor the agreed-upon arrangement.
Setoff
The tenant may also assert he or she is exercising the right under the authority of NRS 118A.380(1)(c) to withhold the payment of rent until essential services (heat, running water, hot water, electricity, gas, etc.) have been restored. To properly assert this defense, the tenant must first give the landlord a written notice to restore essential services within two working days. In such cases, NRS 118A.390 allows the tenant to recover actual damages plus up to $1,000.00 in additional statutory damages.
Failure to Maintain the Rental Unit
The tenant could also assert that the landlord failed to maintain the rental unit in a habitable condition. This defense is available if supported by material facts and as long as the defective condition was not caused by tenant’s own negligence or intentional acts.
The Eviction is Retaliatory
Landlords cannot prosecute a retaliatory eviction – i.e., one based on ulterior motives not recognized as legitimate reasons for an eviction under Nevada law. For example, the tenant could assert that the termination is retaliatory because the tenant filed a complaint about uninhabitable premises, or that the landlord discriminated against the tenant in some way prohibited by fair housing laws.
Alleged Violations of the Lease Agreement
If the landlord violated the lease or rental agreement in any material way, the tenant may have grounds to fight the eviction.
In short, landlords must carefully follow all the rules and procedures of Nevada law governing evictions; otherwise, the eviction may be not valid. Failure to do so could result in dismissal of the eviction case, forcing the landlord to start the process over.