Rights of Tenants: Evictions
Can my landlord turn off my utilities or change the locks on my door or otherwise kick me out without first going to court?
No. It is illegal for your landlord to throw you out by force. Your landlord must get a court order before he evicts you. If your landlord tries to get around this by changing the locks, taking your property, or shutting off any of your utilities, he has broken the law. If you take him to court and ask for immediate help, the court may stop the landlord and order him to pay you for your losses or $250.00, whichever is greater, plus your court costs. If you have a lawyer and you win the case, the court can also order your landlord to pay your attorney fees.
NOTE: The electric company must determine if tenants are living in a place before cutting off service at the owner's request. If you agree to put the service in your name, the electric company cannot cut you off.
Does my landlord have to have a reason to evict me?
This depends on whether you are a tenant at will or have a written lease.
If you have a written lease, your landlord probably has to have a reason to evict you. This is also the rule if you live in subsidized housing or own your own home in a mobile home park.
If you are a tenant at will (no lease), your landlord can evict you without giving a reason. However, he must give you 7 or 30 days notice in writing. There are some exceptions to this, explained below.
Does my landlord have to warn me before I can be evicted?
Yes. The type of notice depends on what type of tenancy you have.
- Your landlord can evict you for a "material breach" of the lease. This means that you have violated one of your major duties under the lease, such as payment of rent, not disturbing other tenants in the building, not causing major damage, or some other "material" lease clause. Know what your lease says so that you will know exactly what you have agreed to. (Note: You have a similar right if your landlord "materially breaches" the lease. Read more here.)
- If you have "materially breached" the lease, your landlord can serve you with a 7-day notice to quit. The notice must advise you of your right to contest the eviction in court. Read about more 7-day notice rules are below.
- End of lease term. If your lease does not say that it automatically renews when the lease term ends, your landlord can go to court without giving you any notice. But he can do this only during the seven days following the end of your lease term. For example, you have a one year lease that ends on February 28, 2007. Your landlord may file a court complaint between March 1 and March 7, asking for an eviction order without giving you a notice first. (If your rent is subsidized, your lease probably renews automatically, so this paragraph does not apply to you.)
If you are a tenant at will (no lease):
Your landlord must give you either a 30-day or 7-day written notice to leave, or he can combine both of these into one notice. Any notice must advise you of your right to contest the eviction in court. This is called a "Notice to Quit."
Your landlord can evict you with 30 days notice for almost any reason or no reason.
The notice must not terminate the tenancy until the last date for which rent has been paid, or later. For example, if your rent is paid through the end of June, your notice period cannot end before June 30th. Also, the notice must give you a full 30 days. (Example: A notice ending the tenancy on June 30 must be given to you no later than May 31.) If the notice does not follow these rules, you may be able to stop or delay the eviction. Get legal advice.
To evict you with a 7-day notice, your landlord must have a reason and state that reason in writing. If you are a tenant at will (no lease), the reason must be one of these:
- You have seriously damaged the apartment and have not repaired the damage.
- You have been a "nuisance" to other tenants or neighbors. (Examples: You pick fights with your neighbors, don't let them sleep, or destroy their property.)
- You have made the apartment unlivable or unfit to live in.
- You have changed your door locks and have refused to give your landlord a duplicate key. (Read more about this rule).
- You are 7 days or more behind in rent.
If the reason is that you have not paid your rent, the notice must include these two sentences:
"If you pay the amount of rent due as of the date of this notice before this notice expires, then this notice as it applies to rent arrearage is void."
"After this notice expires, if you pay all rental arrears, all rent due as of the date of payment and any filing fees and service of process fees actually paid by the landlord before the writ of possession issues at the completion of the eviction process, then your tenancy will be reinstated."
This means that you can stop the eviction by paying the rent you owe. After 7 days, if you do not pay up what you owe before your next rent date, you have to pay both months' rent to stop the eviction. You can still stop the eviction by paying all rent owed even after the landlord takes you to court to get an eviction order. But to stop the eviction then, you have to pay all of the rent due and the landlord's court costs. These costs are:
- cost of serving the court papers
- court filing fee
Your last chance to stop the eviction is just before the court issues the "writ of possession." Your landlord can get this "writ" 7 days after he gets the Court order.
Does the landlord, or his agent, have to give me the "Notice to Quit" in person?
Yes. In a tenancy at will, the landlord, or his agent, must deliver the 7-day or 30-day notice to the tenant in person. The notice does not have to be served by a sheriff.
Exception: The landlord, or his agent, must make 3 good faith efforts to hand deliver you the notice. If he still cannot find you after 3 tries, he can mail you the notice and leave a copy at your home.
What if I rent my home from my employer?
If your landlord is also your employer, he may be able to go to court to evict you without first giving you a written notice to quit. Get legal advice. Your landlord must still go to court to evict you.
What if I do not move out after I get an eviction notice?
Your landlord must go to court to evict you! If you do not move out by the end of the notice period, then your landlord can have you served with court papers. The court case is called a "Forcible Entry and Detainer." (This does not mean that the landlord can enter your home by force or detain you.) The papers say that he is trying to evict you. They ask the court to hold a hearing, to decide if you can be evicted. If you want to fight the eviction, you have a right to be heard in court. A landlord cannot legally evict you without a court order.
Here is what will happen:
- A deputy sheriff will give you court papers: a summons and a complaint. The landlord can have these papers served on you anytime after the end of the notice period. The summons will tell you the date, time and place of the court hearing. You must get the papers at least 7 days before the court hearing. Between October 6, 2013 and September 1, 2016, a new "alternative service" rule will be in effect. The officer must make a good faith effort to deliver the papers in hand at least 3 times on 3 different days. If that doesn't work, then the landlord may mail you the notice and leave a copy at your residence where you are likely to find it (such as posting on your door). Then the landlord must file an affidavit with the court swearing to the steps he has taken to notify you.
If you cannot get a lawyer to help you, go here for more information about evictions.
- Seek legal advice immediately.
- If you end up going to the hearing without a lawyer, ask for a recorded hearing. Send a letter to the court ahead of time. Your request should be at least 24 hours in advance. Then ask for a recording again when you get to court.
- Be on time for your hearing.
- The Judge may tell you that you must go to "mediation" before having a court hearing. (Read more about this, and other court procedures in our pamphlet on Evictions.) If you do not come to an agreement during mediation, then you will go on to a formal court hearing.
- At the court hearing the landlord will tell the judge what notice he gave you and why he wants to evict you. Then you have a chance to explain why you should not be evicted. Here are some common defenses:
Improper notice defense
Your landlord must follow all of the notice rules. (Most of the notice rules are explained above.) If you think that your notice to quit did not meet all of the rules, explain that to the judge. If the judge finds that your landlord did not follow all of the notice rules, then the landlord loses and he will have to start the eviction process all over again.
Unsafe or unfit housing defense
If your landlord is trying to evict you because you are behind in paying rent, you may be able to stop the eviction if you didn't pay because of serious problems with your home that the landlord refused to fix. This is called a "warranty of habitability defense" because the landlord has broken his promise to rent you a safe home. (See Unsafe or Unfit Housing.)
If the judge finds that the landlord has not fixed serious problems that you told him about, then you can ask the court:
- To let you out of your lease,
- To let you stay and to pay a lower rent until the landlord makes your home safe. If you stay, the judge will also decide how much back rent you must pay, at the lower rate.
There are laws to protect you if your landlord tries to evict you because you asserted your rights. For example, if you can show that the landlord is trying to evict you because you:
- complained to the city of code violations
- asked your landlord in writing to do necessary repairs
- filed a fair housing (discrimination) complaint with the government, or
- started or joined a tenants' union,
The judge should not let the landlord evict you.
Warning: If the landlord convinces the judge that he is trying to evict you for some other good reason (like causing a "nuisance"), then you may still be evicted. Also, a new law, effective in September 2011, does not allow this defense where the eviction is based on failure to pay rent or causing substantial damage to the premises unless you had tried to use "repair and deduct" because of bad living conditions.
You also have the right not to pay an unlawful rent increase and not to pay for common utilities. (See sections on Rent and Heat and Utility Charges for Common Areas.) If your landlord is trying to evict you for one of these reasons, explain that to the judge. These defenses might stop the eviction.
You should not be evicted because of your:
- sexual orientation
- physical or mental impairment
- ancestry or national origin
- getting welfare, or
- being a single parent, being pregnant or having children
Note: If you or someone in your family has a physical or mental impairment, most landlords must allow for “reasonable accommodations” to help you stay in your home. You can ask for this help even after you get an eviction notice. A court should not allow your landlord to evict you if your landlord has not tried a “reasonable accommodation.” Try to get a lawyer to help you with this defense. Read more.
Caution: Your landlord may have more than one reason for trying to evict you. Even if you have a good defense to one of his complaints, the judge may still allow the eviction if the landlord has another good reason why he wants you to move out.
Will the court give me extra time to move?
Most judges do not believe that the law gives them the power to grant extra time where you have no legal defense. You may try to negotiate with the landlord or his lawyer for some extra time. Or, if you have the option to talk to a court mediator, you can try to get an agreement for extra time through mediation. But, unless you have an agreement, the court will probably not delay the eviction.
Can I be evicted during the winter or if I have children?
Yes. Maine law allows your landlord to evict you at any time during the year and even if you have children. However, you cannot be evicted because you have children. More on Illegal Discrimination
Note: If you are evicted, your children still have the right to be in school. Read KIDS LEGAL information on: Rights of Homeless Students to Attend School.
What happens if I do not go to the eviction hearing in court?
If you do not go to the court hearing and your landlord does, you will lose. The judge will most likely enter a "default judgment" against you. Then the landlord can go back to court 7 days later and get a "writ of possession."
If you owe the landlord money for rent or damages, he cannot get a court order for this at the eviction hearing. He can only ask for an eviction order. He can sue you later, if he wants to, for any money you owe him.
What happens if I go to court and lose?
What is a "writ of possession?"
This paper comes from the Court and gives the landlord the right to get his property back from you. Your landlord can ask a deputy sheriff or constable to give you a copy of the "writ." You must move out of your apartment within 48 hours after getting the "writ." If you do not move out, you will become a trespasser. The landlord then, and only then, has the right to have the police remove you by force (and to put your things in storage at your expense).
Can I appeal my case?
Yes. You can appeal your case if you believe that the court's decision was wrong.
There is an appeal deadline. Any appeal must be filed before the "writ" issues (see above). To be safe, file the appeal with the District Court within 6 days of the day the judge signed the order against you. (The absolute deadline is 30 days from the judgment, if a "writ" was not issued earlier.)
On appeal you can have a new trial with a jury. To get a jury trial, you must prove to the Court that you and your landlord disagree about the facts of the case. If you only disagree about what the law means, the appeals court will only review the record of your first hearing to see if the judge made any legal mistakes in deciding the case.
Be prepared to pay rent to the landlord or into a court escrow account while your appeal is pending.
If you want to appeal, especially if you are going to ask for a jury trial, try to get a lawyer. This would be hard to do on your own. The court provides an appeal form here, but completing and filing the form is only the first step of pursuing an appeal.
Partially revised October 2013