Brought to you by Nevada Legal Services - PowerPoint Presentation

Slide1

Brought to you by Nevada Legal Services & UNLV Boyd School of Law

Tenant’s

Rights ClinicSlide2

About the Class...Students may not give legal advice

...only legal informationTaught by students under attorney supervision

Forms & additional information is available at Civil Law Self Help website: http://www.civillawselfhelpcenter.org/Slide3

About Nevada Legal Services Nevada Legal Services is a statewide non-profit law firm

providing legal assistance to low income individuals who qualify for services. 530

S. 6th St. (corner of Bonneville & 6

th)Locations in Elko, Reno, and Carson CityAlso assist Pahrump, Laughlin & Mesquite‘Legal Aid’NO fees & MUST qualifyMon – Friday 8:30am to 5pmSlide4

Overview

Part I:When 118A Applies

Habitability Problem & Remedies

Security Deposits & Personal PropertyPart II:Eviction ProcessPost-Judgment OptionsSlide5

Does NRS 118A apply to me?NRS Chapter 118A governs Landlord Tenant Laws & applies to rental agreements (oral and written) except:

Mobile Home Owners

Public Housing residents

Resident in hotel for less than 30 days UNLESS there’s intent to remain longerOccupancy solely conditioned on employmentEtc.Slide6

Do you have a Landlord-Tenant Relationship?

Depends on... Agreement of LL to allow T to occupy the space to the exclusions of others

Whether guest intends to stay indefinitely or more than 30 daysThe exchange of considerationSlide7

HABITABILITYSlide8

What is Definition of Habitability?

NRS 118A.290

NV law requires a LL to maintain a habitable dwelling unit.

“Habitable” means capable of allowing an average person to use & enjoy the dwelling and live free of defects affecting health or safety. Dwelling must comply with health & housing code, and have: (1) hot and cold running water;(2) floors & walls that provide adequate weather protection and do not leak; (3) a working toilet; (4) doors and windows that open, close, and fit properly; (5) electrical outlets and wiring that operate safely; (6) building and grounds free of garbage, rodents, insects, and vermin; (7) adequate heat; (8) other services, like ventilation, a/c, elevators, appliance, IF supplied by the LL when you moved in or required in your lease. Slide9

Different Procedures & Remedies for Different lawsNRS 118A.350, 118A.355, 118A.360, and 118A.380 contain your remedies if the LL has failed to maintain a habitable dwelling. These laws have different requirements:

NRS 118A.355 covers habitability violations (as defined by NRS 118A.290)

NRS 118A.350 covers lease violationsNRS 118A.360 covers lease & habitability violations.

NRS 118A.380 covers essential services only. Slide10

Before you proceed...

STEP 1: What is the Problem?

Habitability issue, Lease Violation, or Essential services

STEP 2: Who is responsible? If Tenant or T guest caused problem by deliberate or negligent act, LL is NOT responsible (applies to NRS118A.350, .355, .360, and .380)STEP 3: Has LL made a reasonable attempt to fix the violation?If fixed, Tenant cannot proceedSTEP 4: What do you want to do?Withhold Rent Terminate Lease

Restore Essential Services

Abatement

Sue for damagesSlide11

Is the problem a Habitability problem?Slide12

Habitability Violations NRS 118A.355

If your problem MEETS THE DEFINITION of ‘habitability

’ use Section 118A.355NRS 118.290 states... LL shall maintain habitable

dwelling unit. “Habitable” means capable of allowing an average person to use & enjoy the dwelling and live free of defects affecting health or safety. Dwelling must comply with health & housing code, and have: (1) hot and cold running water;(2) floors/walls that provide adequate weather protection and do not leak; (3) a working toilet; (4) doors and windows that open, close, and fit properly; (5) electrical outlets and wiring that operate safely; (6) building and grounds free of garbage, rodents, insects, and vermin; (7) adequate heat; (8) other services, like ventilation, a/c, elevators, appliance, IF supplied by the LL when you moved in or required in your lease. Slide13

Habitability 118A.355What do I do?

Send Written Notice to LL specifying each condition and request that LL fix the conditions.

Give LL 14 days after receipt of notice for LL to make repairs OR use best efforts to make repairs

If LL repairs problem, T may not proceed If the LL does NOT make repairs, or fails to make a reasonable effort to repair within the 14 days, T may proceedTenant may:Terminate the lease immediately ORRecover actual damages ORWithhold rentSlide14

What about A/C...Be advised, definition of habitability states a dwelling must have “other services, like ventilation, a/c, elevators, appliance, IF supplied by the LL when you moved in or required in your lease

.”Make sure that A/C is provided in your lease or make sure it works when you moved in Slide15

Withholding Rent....If LL fails to repair habitability problem after 14 days, you can withhold rent BUT...

You CANNOT withhold rent if you owe rent to the LL. If you withhold rent, you must deposit your rent in an escrow account with the justice court. If you fail to deposit the rent with the court, you will not have a defense to a subsequent of eviction. Slide16

Is the Problem A Lease Violation?Slide17

Lease Violations

NRS 118A.350

If your problem

does not meet definition of ‘habitability’ but is a lease violation use Section 118A.350 Many things can constitute lease violations: appliances, landscaping, window treatments, etc....check your leaseYou CANNOT withhold rent under NRS 118A.350Slide18

Lease Violation NRS 118A.350What do I do?

Send Written Notice to LL stating how the LL violated the lease and state what you plan to do (i.e. terminate lease)

Give LL 14 days after receipt of notice for LL to make repairs OR use best efforts to make repairs If LL repairs problem, T may not proceed

If the LL does NOT make repairs, or fails to make a reasonable effort to repair within the 14 days, T may proceedTenant may: (a) Terminate the lease immediately, OR(b) Recover actual damagesSlide19

Lease Violations & Habitability Violations

If you choose to sue the LL for

money damages under NRS 118A.350 or .355, you do not need to issue a written notice if...

LL admits in court of knowing about the problem (rare) OR LL already received notice from code enforcement or other government agency Slide20

Do you want to Repair & Deduct?Slide21

Repair & DeductNRS 118A.360

If you have a

habitability problem or a lease violation

problem you can use 118A.360 which authorizes a different remedy...it allows the tenant to Repair & Deduct You must give 14 day Notice to LL indicating how the problem violates your lease or violates habitabilityIf LL fails to repair, you can fix the problem yourself and deduct the cost from next month’s rent. Slide22

Repair & DeductNRS 118A.360

Repairs MAY NOT cost more than one month’s rent

You can only repair & deduct a total of one (1) month’s rent every twelve (12) months

. Lease may specify who must perform the work. So, check your lease before you call anyone to repair the problemSlide23

Is the problem an Essential Service?Slide24

Essential Services NRS 118A.380

If you

lack an essential service as the result of your LL’s willful or negligent act you can use

118A.380Essential Services = heat, A/C, hot & cold running water, electricity, gas, working door lock, or another essential item or service A/C is only an essential service if required in your lease or the service worked when you moved in. In Southern NV, most dwellings have A/C...BUT make sure the A/C works before moving in. Slide25

Essential Service NRS 118A.380

Must be the result of the LL’s willful or negligent actions or inaction If you proceed under NRS 118A.380, you may NOT also use the remedies of NRS 118A.350 and 118A.360

If the essential service problem is NOT the result of willful or negligent actions of the LL, then you may proceed as a Lease Violation or Habitability Slide26

Essential Service NRS 118.380What do I do?

Send Written Notice to LL specifying condition & request

that LL fix the problem in 48 hours Give LL

48 hours after receipt of notice to make repairs OR use best efforts to make repairs If LL repairs problem, T may not proceed If the LL does NOT make repairs, or fails to make a reasonable effort to repair within the 48 hours, T may proceed...*48 hours does not include weekends & HolidaysSlide27

Essential Service NRS

118.380

If LL fails to make repairs, T may proceed...

Repair & Deduct Sue LL for actual damagesWithhold any rent that becomes due. Obtain comparable substitute housing while essential service is not working. While you are renting the substitute housing, you do not owe your LL any rent. If the substitute housing costs more than the rent you pay to LL, you can recover the difference in cost. Slide28

Essential ServiceNRS 118A.380

If LL completes repairs or your essential services have been restored, you must immediately pay the LL any rent that you have lawfully withheld.  You can withhold rent

ONLY IF rent is current at the time you gave Notice BUT you DO NOT need

to deposit your rent into escrow account with CourtSlide29

Last word about Notice...When it comes to providing Notice...we strongly advise that:

Always send noticeKeep a copy of everything wait full 14 days for the LL to fix the problem.

You may need proof that you complied with NV law if you decide to sue your LL for damages or as a defense if the LL tries to evict you. Slide30

SECURITY DEPOSITS & PROPERTYSlide31

Security DepositsNRS 118A.242

Deposit cannot exceed 3 months rent

No “Security Deposit” can be non-refundable, except “cleaning fee”

After tenant leaves, LL must return deposit within 30 days or provide written accounting.Legal deductions include damages BEYOND ordinary wear and tear, cleaning fees, and unpaid rent.Slide32

Property Left Behind

118A.460-Landlord must store & safekeep property for 30 days.

LL can charge for storage, inventory, and moving costs before returning property.

LL cannot charge for back rent (118A.520) and is liable for $2,500 claim if LL violates 118A.520.LL can dispose of property after 30 days, if LL has given notice to tenant & 14 days have lapsed.Tenant can file “Motion to Contest Property Lien” if LL violates NRS 118A.460. Slide33

NEVADA EVICTION PROCESSSlide34

No “Self Help” Eviction

NO.

..a Landlord

cannot just lock you out. NRS 118A.480 requires court process, unless Tenant surrenders or abandonsProcess Requires: NoticeOpportunity to Answer

Order from JudgeSlide35

Summary Eviction Process

It’s about POSSESSION

The issue at an Eviction Hearing is whether the Tenant has raised a “legal defense”

Not a Trial...it’s a hearing but can bring witnesses/ documentsIf legal defense raised, the court should deny summary eviction

See

NRS 40.253-40.254Slide36

Five Step ProcessStep 1: Did you get notice?Step 2: Did you file a Tenant’s Affidavit?

Step 3: What is your Defense?Step 4: Did Landlord file a Complaint?

Step 5: Do you have a hearing?Slide37

Step 1: Did you get Notice?

Different Types of Notices....

5-Day Pay Rent or Quit

3-Day Nuisance + 5 Day U.D.5-Day Lease Violation + 5 Day U.D.30/7- Day No Cause Notice + 5 Day U.D.5- Day Unlawful Detainer (U.D.)Slide38

The Clock Starts Ticking..... 5

Day Pay Rent or QuitNo prior notice

5 Day Unlawful Detainer Notice

Must be preceded by3 Day Nuisance5 Day Lease Violation30/7 Day No Cause Notice3day, 5 day, 30 day is ‘reason’ for Eviction...5 day starts clock to file AffidavitSlide39

Step 2: File a Tenant’s Affidavit?

You MUST file a Tenant’s Affidavit within 5 court days of receiving the 5 day Notice. Forms available at courthouse & online

Landlord cannot file Complaint before 5 day expiresFiling Tenant’s Affidavit preserves your right to a hearing Can file Fee Waiver (Application to Proceed In Forma

Pauperis)Slide40

How do I count the days?

Look at the date on the noticeDo NOT count the day you are served the NoticeDo NOT count weekends, holidays or days court is closed

EXCEPT: 30 Day Notice means 30 consecutive days starting the day after you get the noticeSlide41

Counting Days: Example

Sun

Mon

TuesWedThursFriSat1234

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2

3

4

5

6

7

8

9

10

11

Received 5 day Notice on

Monday the 2

nd

Tenant’ s Affidavit is due

Monday

the

9

th

Unless court is closed

on Friday (

Henderson Court or Holiday)

then

Tenants Affidavit is due

Tuesday the

10

thSlide42

Step 3: Allege a DefenseTenant must raise a “legal defense” to prevail at an eviction hearing

Defense depends on ‘reason’ for eviction; LL

should provide appropriate Notice alleging the reason your are being evictedSome

technical legal arguments apply to ALL notices, like...invalid service (NRS 40.280) lack of jurisdiction (i.e, no landlord-tenant relationship or wrong court).Slide43

‘Defense’ depends on Notice....Types of Notices:

5 day Pay Rent or Quit3 Day Nuisance Notice

+5 Day Unlawful Detainer5 Day Lease Violation

+5 Day Unlawful Detainer30/7 Day No Cause notice +5 Day Unlawful DetainerSlide44

I got a 5-Day Pay Rent or Quit...do I have a defense?

I paid the rent in full

I offered to pay the rent in full but LL refused

I withheld rent per NRS 118A.355 or 118A.380LL accepted partial payment 5 day Notice includes amount that is not “rent”Rent = all periodic payments made to LL for occupancy of a unit, including all reasonable & actual late fees

per lease

5 Day cannot

be

based on failure

to pay collection fees, attorney’s fee, or “other costs” not included in NRS 40.253(9) (dishonored check fee and security deposit).Slide45

I got a 3-Day Nuisance Notice...

do I have a

defense?

Nuisance abatedAllegations do not meet legal definition of “nuisance”Allegations are falseSlide46

What is a “Nuisance”?

A nuisance is anything that:

Consists

of conduct or an ongoing condition which constitutes an unreasonable obstruction to the free use of property and Causes injury or damage to other tenants or occupants of that property or adjacent buildings or structures. NRS 40.2514

And

Is

injurious to health

, or

indecent and offensive

to the senses, or an

obstruction to the free use of property

, so as to

interfere with the comfortable enjoyment

of life or property. NRS 40.140

Slide47

I got a 5-Day Lease Violation Notice...

do I have a

defense?

Lease violation curedLease violation not materialLease violation not trueSlide48

I got a 30/7-Day No Cause Notice ...

do I have a

defense?

Lease has not expired (NRS 40.251(b))Landlord is retaliating (NRS 118A.510)Landlord is discriminating (FHA, NRS 118)Slide49

Retaliation is prohibited by NV lawand occurs when LL responds to an action taken by the Tenant.

Complained of habitability issue to a

govt

agency or LLComplained about crime to law enforcement or LL Organized/became a member of a tenant’s union Party in a court process where habitability raisedRefusal to agree to a rule adopted by the LL that requires the LL to waitComplained about discrimination to the LL, govt

agency...

Tenant was victim

of domestic violence

Terminate or refuse to renew the tenancy

Increase rent

Decrease essential services

Bring or threaten to bring an eviction, unless landlord has cause (like failure to pay rent)Slide50

30-Day No Cause DefenseDiscrimination

Federal

Fair Housing Act

& NV’s Fair Housing Act prohibit eviction based on Discrimination Fair Housing Act: prohibits discrimination based on race, color, religion, sex, familial status, or national origin and handicap. 42 U.S.C. § 3601 NV Fair Housing: includes Gender Identity & sexual orientation as additional prohibited classes. NRS 118.010 to 118.120

Both laws include failure

to accommodateSlide51

30-Day No Cause Notice

Additional Time for Elderly & Disabled

If Tenant is 60

yrs or older or has a physical/mental disability, the tenant may request LL to continue in possession of the rental premises for an additional 30 days

Requirements:

Request

must be in writing

Tenant must provide proof of

age or disability

All “no cause” notices must

advise

Tenant

of this

rightSlide52

What if LL rejects my request for additional time?

The tenant may

file “Motion to Continue in Possession”

for the additional 30 days. If the court denies the petition, the Tenant must be allowed to continue in possession for 5 calendar days following the date of entry of the order denying the petition.Slide53

Step 4: Did Landlord file a Complaint?After the 5 day period expires, the LL MUST file a Complaint to

obtain an EvictionIf LL files Complaint...Tenant’s Affidavit Filed = hearing

No Tenant’s Affidavit Filed = NO Hearing If Landlord fails to file Complaint within 30 days of expiration of the notice, the notice is void & LL has to start overSlide54

Step 5: Go to the Hearing?BE ON TIME...if you miss your case an eviction will be grantedIf LL fails to show eviction will be dismissed

Bring copies of your important documents that help establish your defense, i.e. receipts, lease, witnesses, police report, etc.Dress appropriatelyDo not interrupt the judgeSlide55

What if an Order is granted?

Two ways for Order to be granted:

Failed to file Tenant’s Affidavit

LL filed Complaint Attended hearing but lost‘Order for Summary Eviction’ is sent to the Constable’s OfficeLL must complete paperwork & pay for service before Constable will execute the Order

Constable

will

serve the Order for Summary Eviction aka ‘24 Hour Notice’ by posting it on your door

Tenant has 24 hours to get out

Constable will return on ‘return date’ to lock outSlide56

Is there anything I can do?

Tenant may remain in unit until the Order is executed

LL can rescind the Order before Constable executes the Order

If you think you can negotiate with LL, LL can ask that the Order be rescinded; you should request that the LL file ‘rescission’ with courtTenant can file 1) Motion to Stay, OR 2) Motion to Set Aside, OR 3) Appeal to District Court Slide57

Post Judgment Options...

Motion to Stay & Motion to Set Aside are usually filed when you did

NOT

have a hearingMotion to Stay- Request for more time; judge cannot grant more than 10 days, and can grant less than 10 daysMotion to Set Aside

- if you can show you failed to answer/appear due

to

mistake, inadvertence, surprise,

excusable

neglect, or

due to fraud

, misrepresentation, or misconduct by

LL

you should indicate you had underlying defense to eviction

Judge

may deny Motion without

Hearing

If hearing is granted, you will receive notice of date/timeSlide58

Can I file an Appeal?You can file an Appeal with District court. An Appeal must be filed within 10 days “from when judgment was rendered” NRS 40.380

Must pay $250 to cover costs on appeal and stay eviction order.

NRS 40.385 Must file

Notice of AppealNotice of BondStatement of Law & FactsJCRCP 72-76B govern procedure thereafterMust establish Judge committed legal error Slide59

Questions?