Brought to you by Nevada Legal Services

& UNLV Boyd School of Law

Tenant’s Rights Clinic

About the Class...

Students may not give legal advice...only legal information

Taught by students under attorney supervision

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

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 & 6th) Locations in Elko, Reno, and Carson City Also assist Pahrump, Laughlin &

Mesquite ‘Legal Aid’

NO fees & MUST qualify Mon – Friday 8:30am to 5pm

Overview

Part I:When 118A Applies

Habitability Problem & RemediesSecurity Deposits & Personal

Property

Part II:Eviction Process

Post-Judgment Options

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.

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 days

The exchange of consideration

HABITABILITY

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.

Different Procedures & Remedies for Different laws

NRS 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 violations NRS 118A.360 covers lease & habitability

violations. NRS 118A.380 covers essential services only.

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 proceed

STEP 4: What do you want to do? Withhold Rent Terminate Lease Restore Essential Services Abatement Sue for damages

Is the problem a Habitability problem?

Habitability Violations NRS 118A.355

If your problem MEETS THE DEFINITION of ‘habitability’ use Section 118A.355

NRS 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.

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 proceed

Tenant may:• Terminate the lease immediately OR• Recover actual damages OR• Withhold rent

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

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.

Is the Problem A Lease Violation?

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 lease

You CANNOT withhold rent under NRS 118A.350

Lease Violation NRS 118A.350

What 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 proceed

Tenant may: (a) Terminate the lease immediately, OR (b) Recover actual damages

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

Do you want to Repair & Deduct?

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 habitability

If LL fails to repair, you can fix the problem yourself and deduct the cost from next month’s rent.

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 problem

Is the problem an Essential Service?

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.380

Essential 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.

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

Essential Service NRS 118.380

What 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 & Holidays

Essential Service NRS 118.380

If LL fails to make repairs, T may proceed...1) Repair & Deduct 2) Sue LL for actual damages3) Withhold any rent that becomes due. 4) 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.

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 Court

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.

SECURITY DEPOSITS & PROPERTY

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.

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.

NEVADA EVICTION PROCESS

No “Self Help” Eviction

• NO...a Landlord cannot just lock you out. NRS 118A.480 requires court process, unless Tenant surrenders or abandons

Process Requires:

1. Notice

2. Opportunity to Answer

3. Order from Judge

Summary Eviction ProcessIt’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/ documents

If legal defense raised, the court should deny summary eviction

See NRS 40.253-40.254

Five Step Process Step 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?

Step 1: Did you get Notice?

Different Types of Notices....5-Day Pay Rent or Quit3-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.)

The Clock Starts Ticking.....

5 Day Pay Rent or Quit No prior notice

5 Day Unlawful Detainer Notice Must be preceded by

3 Day Nuisance 5 Day Lease Violation 30/7 Day No Cause Notice

3day, 5 day, 30 day is ‘reason’ for Eviction...5 day starts clock to file Affidavit

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 expires

Filing Tenant’s Affidavit preserves your right to a hearing Can file Fee Waiver (Application to Proceed In

Forma Pauperis)

How do I count the days? Look at the date on the notice Do NOT count the day you are served the

Notice Do NOT count weekends, holidays or

days court is closed EXCEPT: 30 Day Notice means 30 consecutive

days starting the day after you get the notice

Counting Days: ExampleSun Mon Tues Wed Thurs Fri Sat

1 2 3 4 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 2nd

• Tenant’ s Affidavit is due Monday the 9th

• Unless court is closed on Friday (Henderson Court or Holiday) then Tenants Affidavit is due Tuesday the 10th

Step 3: Allege a Defense

Tenant 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 evicted

Some 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).

‘Defense’ depends on Notice....

Types of Notices:

5 day Pay Rent or Quit 3 Day Nuisance Notice +5 Day Unlawful

Detainer 5 Day Lease Violation +5 Day Unlawful

Detainer 30/7 Day No Cause notice +5 Day Unlawful

Detainer

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.380 LL 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).

I got a 3-Day Nuisance Notice...do I have a defense?

Nuisance abated Allegations do not meet legal definition

of “nuisance” Allegations are false

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

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

have a defense? Lease violation cured Lease violation not material Lease violation not true

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)

Retaliation is prohibited by NV lawand occurs when LL responds to an

action taken by the Tenant.

1. Complained of habitability issue to a govt agency or LL

2. Complained about crime to law enforcement or LL

3. Organized/became a member of a tenant’s union

4. Party in a court process where habitability raised

5. Refusal to agree to a rule adopted by the LL that requires the LL to wait

6. Complained about discrimination to the LL, govt agency...

7. Tenant was victim of domestic violence

1. Terminate or refuse to renew the tenancy

2. Increase rent 3. Decrease essential

services 4. Bring or threaten

to bring an eviction, unless landlord has cause (like failure to pay rent)

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 accommodate

30-Day No Cause NoticeAdditional 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 right

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.

Step 4: Did Landlord file a Complaint?

After the 5 day period expires, the LL MUST file a Complaint to obtain an Eviction

If 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 over

Step 5: Go to the Hearing?

BE ON TIME...if you miss your case an eviction will be granted

If 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 appropriately Do not interrupt the judge

What if an Order is granted?

Two ways for Order to be granted: 1) Failed to file Tenant’s Affidavit 2) LL filed Complaint Attended hearing but lost

• ‘Order for Summary Eviction’ is sent to the Constable’s Office

• LL 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 out

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 court

Tenant can file 1) Motion to Stay, OR 2) Motion to Set Aside, OR 3) Appeal to District Court

Post Judgment Options...

Motion to Stay & Motion to Set Aside are usually filed when you did NOT have a hearing

• Motion to Stay- Request for more time; judge cannot grant more than 10 days, and can grant less than 10 days

• Motion 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/time

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 Appeal Notice of Bond Statement of Law & Facts JCRCP 72-76B govern procedure thereafter

Must establish Judge committed legal error

Questions?