If you have been evicted, or are being threatened with eviction, you have certain rights under Oklahoma state and federal law. This post will discuss what your rights are, and what you can do to contest your eviction.
Your landlord must give you notice, in writing, before he can evict you.
Your landlord must give you 30 days notice to terminate, in writing, if your tenancy is a “tenancy at will.” “Tenancy at will” means that the period of tenancy is for an indefinite period of time.
Your landlord must give you 30 days notice to terminate, in writing, if the term of your tenancy is three months or less. However, if the lease agreement provides that rent is payable in intervals of less than 30 days, the length of the notice does not need to be greater than the interval between the days of payment.
If the tenancy is from year to year, then your landlord must give you notice to terminate, in writing, three months before the end of the year.
If, for a period of three months or longer, you fail to pay rent when rent is due, your landlord must give you ten days notice to terminate, in writing. You may then cure the defect by paying rent within ten days.
If, for a period of less than three months, you fail to pay rent when rent is due, your landlord must give you five days notice to terminate, in writing. You may then cure the defect by paying rent within five days.
Your landlord does not need to give you any notice, if the time for the termination of tenancy is specified in the lease agreement, or if you commit waste on the property, or if you remain on the property, without the landlord’s consent, after the tenancy expires.
Your landlord must serve the notice on you either by
Personally delivering the notice to you, or
If your landlord can’t find you, he may serve you by personally delivering the notice to a person over the age of twelve, who resides on the property, or
If your landlord can’t find you, or anyone over the age of twelve residing on your property, he may serve you by posting the notice in a conspicuous place on the property, AND mailing the notice, by registered mail, to your last known address.
Even after your landlord serves you with the notice to terminate, your landlord still has to go to court before any law enforcement officer can force you off of the property.
A court case, involving an eviction, is called a “forcible entry and detainer” action.
In a forcible entry and detainer, your landlord must serve you with the petition, the summons, and a notice of the date, time, and location of trial. The landlord must serve you at least three days, before the date of the trial.
The rules for serving the summons in a forcible entry and detainer case, are stricter than the rules for serving a notice of eviction. To serve the summons in a forcible entry and detainer case, your landlord must either
Have the summons delivered to you personally, or to someone at least fifteen years old, who resides on the property. A sheriff, deputy sheriff, or licensed process server must deliver the summons.
Send the summons to you be certified mail.
If it is not possible to either personally deliver the summons to you, or to a person at least fifteen years old residing on the property, or to mail you the summons by certified mail, your landlord may serve you by posting the summons in a conspicuous place on the premises. The landlord must post the summons at least five days before trial, and must also mail the summons to your last known address by certified mail. However, if your landlord serves you in this fashion, then the court may not order you to pay any back rent; the court may only order that the premises be returned to the landlord, and the court may not order anything else. (But, if you appear for trial, the court may then order you to pay back rent, as well.)
What to do if you are served with a summons in a forcible entry and detainer case:
You have the following rights:
You may file a written answer in court. In your answer, you may state why you do not believe your landlord has the right to evict you. However, you are not required to file an answer. You may, if you wish, present all your defenses at oral argument before the court at trial.
You may file a counterclaim against your landlord and sue the landlord, if you have any claims against him.
You may demand a jury trial.
At your trial (whether jury or non-jury) you may present defenses as to why you should not be evicted. You may represent yourself, or you may hire an attorney. (To see whether it is wise to represent yourself, read my earlier post: Should you represent yourself?)
The defenses that you can present, in a forcible entry and detainer case, vary greatly and depend on the precise circumstances of your case. I cannot list all the possible defenses in a post of this length. However, some of the more common defenses are:
You have paid your rent as per the lease agreement;
Your landlord failed to give proper notice;
Your landlord has failed to adequately maintain the property. If your landlord fails to adequately maintain the property, and you have to pay for repairs, then, you may deduct the cost of your repairs from the rent. Also, if your landlord “willfully or negligently fails to supply heat, running water, hot water, electric, gas or other essential service” you may obtain substitute housing during this period. You do not have to pay rent during the time you are living in substitute housing. For more information on what to do if your landlord fails to maintain your property, see my earlier post: “If your apartment is defective in Oklahoma.”
At your trial, your landlord has the burden of proof. That means, that, your landlord has the burden of showing that his accusations are true, and that he has the right to evict you. If your landlord can’t prove that he has the right to evict you, then, the judge should rule that the landlord can’t evict you, and that you have the right to remain on the property. If the judge rules in your favor and holds that your landlord can’t evict you the judge can also order your landlord to pay your attorney’s fees, if you have any.If the judge rules in favor of your landlord, the judge will likely sign a “writ of execution.” This writ will command a law enforcement officer to forcibly remove you from your property. The judge may also order you to pay any unpaid rent, and may order you to pay your landlord’s attorney’s fees.
However, even after the judge signs this writ, you have the following rights:
You may file a motion for a new trial. You must file this motion within three days after the judge signs the writ. However, if you file a motion for a new trial, this will not delay the enforcement of the writ of execution, and law enforcement can still force you off the property while the motion for new trial is pending.
If your defense was that your landlord failed to maintain the property, and that you thought you could deduct the cost of the repairs from the rent, and the judge rules that you didn’t actually have the right to deduct the cost of the repairs from the rent, then you can prevent a writ of execution, if you pay the rent within 72 hours of the trial.
You may appeal the case to the Oklahoma Supreme Court. If you appeal, you may delay the enforcement of the writ of execution, by posting a supersedeas bond within two days after the judge signs the writ. A “supersedeas bond” is an undertaking where another person or corporation acts as a surety, and the surety agrees to pay the amount of the judgment in the event you do not pay. The judge must approve the person who seeks to act as surety. Many corporations, who act as sureties for a supersedeas bond, will require you to put up collateral. If you post a supersedeas bond, you will still have to pay rent while the appeal is pending. You will have to pay the rent to the court clerk. If you appeal the case to the Oklahoma Supreme Court, the Supreme Court may then reverse the trial judge’s decision. Click here to see how the Oklahoma appellate system works. If the Supreme Court reverses the trial court’s decision, your landlord will not have the right to evict you.