I was just served with a notice of petition for non payment. We have several counter claims against the landlord, most importantly being that the sewer main in the building backed up into our apartment and left four inches of sewer water and debris in our home. We lost the majority of our furniture and a ton of personal belongings, including gifts my children had just received for Christmas. They did nothing to help clean up the mess. How do I respond? Do I just show up in court and do I need a lawyer to answer the petition? I just want to get out of this apartment, but due to the hurricane, it has been extremely difficult to find a place. I am trying to stay in the district because my oldest has special needs. Thanks
Landlord / Tenant Lawyer
Yes. By all means hire an attorney. You may have valid claims for the property damage, but in a nonpayment proceeding, your property damage claim may be severed or dismissed without prejudice as not being "inextricably connected" to the landlord's claim for possession.
You could have made a claim on the landlord's insurance as your property loss seems due to the landlord's negligence and you may have sued the landlord for your loss in Small Claims Court. If you had done so, you would not have withheld your rent to recover for that loss.
You may actually have facts that could support a counterclaim based on a breach of the warranty of habitability (also a defense to the nonpayment claim) but you do not seem to be aware of that real potential counterclaim or of that real defense to a landlord's nonpayment claim. You cannot just show up in court and orally raise complex defenses and counterclaims.
Hire an attorney because you have real rights.
The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.
Of course it would be best if you retained an attorney. What you have described is a constructive eviction which is a defense to apying rent. You need to serve the landlord with an answer to the petition alleging your affirmative defense of constructive eviction. I suggest you hire an attorney immediately.
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