Due Process in an Eviction

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Status: In Progress  |  Genre: Non-Fiction  |  House: Anthony Ziuimmerman

Submitted: April 24, 2016

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Submitted: April 24, 2016

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The old Common Law Rule in an eviction is that the Lessor can bring the eviction action in court and the summary nature of the eviction prevented the Lessee from bringing counterclaims against the Landlord. 

However, the modern Common Law Rule provides the defenses to the Lessee of the Implied Warranty of Habitability and the Fair Housing Act.These defenses should be enough to place the eviction on hold and instead require a jury trial for an ejectment, with the counterclaims and defenses found in the Implied Warranty of Habitability and the Fair Housing Act, allowed.

Moreover, in the United States Supreme Court case of  Lugar vs. Edmundson Oil (1982), the Court held that a Lessee is entitled to full substantive and procedural Due Process rights.Thus, the Lugar Court, stated that for a law to be valid under substantive due process,  that law must be reasonable and, rationally rleated to a legitimate state interest.  One might ask how this applies to a Lessor. Well, the answer is that the Court in Lugar held that a Lessor is a State Actor for purposes of  42 United States Code, Section 1983, and thus the Lessor comes under the substantive due process requirements of law as well.  Accordingly, following Lugar, summary evictions are now illegal and cannot be used without legal liability for the Judge.


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