What to do if the renter that I am trying to evict is countersuing me for shutting off their electricity?

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What to do if the renter that I am trying to evict is countersuing me for shutting off their electricity?

My renter is $2,000 behind in rent. I shut off his electricity for 4days and then turned it back on after his attorney called me and said that I could not do that.I went to court and filed for eviction and when he appeared in court he brought his attorney with him and they got a continuance because they said they were filing a countersuit. He has been living for free on the property for months now and it is going into foreclosure. I cannot afford to pay the electric bill and I cannot afford to be sued for shutting of the power. What should I do?

Asked on August 16, 2011 Indiana

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You should not have shut off the tenant's electricity at all because he was behind in the rent. All states have laws precluding retaliatiory eviction or constructive eviction which your conduct was. If you have insurance for the property, you need to immediately place your insurance agent on notice about the situation and a possible lawsuit against you (cross-complaint). Potentially your insurance carrier (if you have insurance) may provide you with an attorney to defend the anticipated cross complaint by the tenant.

In the meantime, you need to retain a landlord tenant attorney to represent you in your dispute with your tenant be it the eviction or defending on the represented cross complaint.

Given the facts that you have stated about the dispute, you should not represent yourself.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You do not have any good recourse, unfortunately. A landlord may *not* shut off a tenant's utilities because the tenant did not pay rent or because the landlord wants to evict him. Thus, you may well be liable for illegal eviction and a violation of the implied warranty of habitability, as well as possibly breach the lease itself.

You can sue the tenant in court (e.g. in small claims court) for the money he owes you. Even if you in turn should owe him something on his countersuit, if he brings it, if you only shut off the power for 4 days, he should owe you far more than you owe him, leaving you net ahead. Unfortunately, bringing a suit will take time which you may not have.

This may be best resolved at the negotiating table: talk first to the bank--see if they can give you any modification, any forebearance, even any time to pay. Then talk to the tenant and his attorney: show how much he owes, share with them the situation re: the premises, and see if you can't get him to agree to pay you enough each month (and enough of the back rent) to keep you out of foreclosure.

Alternately, you could let the bank foreclose; if it tries to proceed against you for the remaining balance, file bankruptcy; then later sue the tenant for what he owes. This, of course, will have a drastic impact on your credit, unfortunately.


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