Reasons You Cannot Evict a Tenant

Brownstone building facade in Lower Manhattan

 kolderal / Getty Images

It is not unusual for a landlord and a tenant to have a disagreement. However, not every landlord-tenant conflict is grounds for an eviction. Your state’s landlord-tenant law will help you determine if you have a legitimate reason for filing for an eviction. Although every case is different, here are four common reasons why you cannot evict a tenant.

Retaliatory Eviction

The landlord-tenant relationship does not operate under the code, “an eye for an eye.” You cannot evict a tenant because they have made you angry by complaining or by legally reporting you to a housing authority. This is known as a retaliatory eviction and it is illegal.

Here are some examples of tenant actions where it would be illegal to retaliate against the tenant by attempting to evict them:

  • Your tenant reports you to the health department because of a mold problem in their unit that is caused by a roof leak you have not fixed.
  • Your tenant pursues legal action against you because he or she slipped on ice on the front stairs of the property and broke their leg. You failed to salt the stairs.
  • A tenant had a maintenance issue at the property that you refused to fix, so he or she called a repairman to fix the problem. The tenant deducted the amount of the repair from their monthly rental payment.

    If you attempt to evict a tenant within three to six months after their complaint or legal action against you, a judge may determine that you are simply trying to retaliate against the tenant because their actions have angered you.

    You can still file to evict a tenant who has complained or pursued legal action against you if you have legitimate grounds for an eviction, such as nonpayment of rent or other breaches to the lease agreement.

    Discriminatory Eviction

    You cannot evict a tenant for a reason that could be considered discrimination. You cannot evict a tenant because you don’t like the color of their skin, the religion they practice or the fact that they have children.

    The Federal Fair Housing Act protects seven classes of people. The protected classes are race, color, sex, national origin, religion, familial status and disability. Your state may have additional protected classes, so make sure you adhere to your state’s fair housing laws as well.

    • Example 1: You find out a tenant is Jewish when they put a menorah in their window during Hanukkah. You file for an eviction because you think the menorah may discourage Christians from renting in your property. Instead, you want your property to be covered in Christmas lights because there are more people who practice Christianity in your area and thus they represent a larger tenant base. This is religious discrimination and it is illegal.
    • Example 2: A young couple moved into a two-bedroom apartment in your property one year ago. You find out the wife is pregnant. You do not want a screaming newborn disrupting the other tenants in your property, so you file to evict the couple. This is familial discrimination and it is illegal.

      Protected Tenant

      Your state or county may allow certain tenants to be classified as protected tenants. These can be tenants that are over a certain age, such as 62 years old, who have lived at a property for a certain number of years, such as 10 years. It can be very difficult to evict a protected tenant from a property, even for legitimate reasons such as nonpayment of rent.

      Withholding Rent Until Safety or Health Issue Is Rectified

      Under most circumstances, you can file to evict a tenant for nonpayment of rent. There is. however, an exception. You cannot evict a tenant if they are withholding rent until a safety or health issue at the property is rectified.

      For Example: You are responsible for paying a tenant’s utilities. You neglect to pay the electric bill. In order to have lights in their home, the tenant must pay the electric bill themselves. When they pay their monthly rent, they deduct the portion they have paid to the electric company. Because your failure to pay the electric bill threatened the safety and living standard of the tenant, you cannot pursue the tenant for the remainder of the rent or file for an eviction because they did not pay the full amount of rent.