‘Illegitimate’ Or ‘Leveling The Playing Field’?: Why Habitability Cases Are Surging In Eviction Court

More tenants have access to an attorney than ever before, a fact that is increasingly reshaping eviction cases across the country, giving renters new leverage to challenge landlords over allegations of mold, deferred maintenance and unsafe living conditions. 

Property owners say the trend is fueling a growing number of costly settlements and legal headaches, while tenant advocates argue that it is holding landlords accountable for housing conditions that too often go unchecked.

Both sides agree that the trend is contributing to declines in recorded evictions. Such settlements take the place of what would otherwise be an eviction filing, they say, contributing to the overall decline shown in the data.

“When they learn that you know, wait a second, there are livability codes, there are rules about habitability, and you shouldn’t have to pay full price for a property where the ceiling’s leaking and the furnace doesn’t work, they want to make sure that those laws are enforced,” according to Matt Hill, attorney at the Human Right to Housing Project at the Public Justice Center in Baltimore. “We’re leveling the playing field in eviction court.”

The rise in habitability defenses mirrors the growing trend of lawsuits filed against landlords over similar claims, which is driving the cost higher for insurance policies that cover owners’ legal liability. 

New York City rolled out the first major right-to-counsel program in the country in 2017, guaranteeing legal representation in housing court for low-income renters.

Nationwide, tenants historically have been said to have had attorney representation about 10% of the time, while landlords are represented 90% of the time. According to the National Coalition for Civil Right to Counsel, the actual frequency of tenant representation is more like 4%.

More access to representation tends to mean more families are stably housed, according to a 2025 NYC Comptroller’s report about the impact of right to counsel. The report also found that funding limitations have turned the program into an “unfunded mandate,” curtailing its impact. 

San Francisco guaranteed representation for all tenants regardless of income in 2019, and Washington passed the first state-level right-to-counsel law in 2021. Today, roughly 21 cities, two counties and five states have these rules in place.

Evictions across the country shot up after the pandemic but have begun slowly ticking down, reaching 1.28 million in 2025, compared to 1.3 million in 2024 in cities tracked by EvictionLab. So far in 2026, the organization has counted 887,000 eviction filings. The percentage of filings that translate into actual removal from a unit varies widely by jurisdiction.

Artificial intelligence is also contributing to habitability defenses popping up more frequently, as it helps tenants create and file the necessary paperwork nearly instantaneously, according to Mike Newhouse, Los Angeles-based attorney and partner at Newhouse Law Group.

“We’re honestly seeing so many more unwarranted, I would honestly call illegitimate, habitability claims than we used to see,” Newhouse said. “The posture has definitely changed. It’s definitely become offensive. It’s become weaponized in a lot of ways, and that hurts landlords.”

There are 15 states where a landlord’s refusal to do repairs is admissible as an eviction defense — meaning it can be used as a relevant argument to lower rents or challenge the eviction — and 17 states where uninhabitable property can be used as a defense, according to John Pollock, attorney and coordinator of the NCCRC.

Landlords view these situations as tenants buying time or trying to escape accountability, and the resulting wave of settlements, which can cost tens of thousands of dollars apiece, leads to significant financial hardship, especially for independent landlords. 

Landlord attorneys acknowledge that there are bad actors in property management who should be punished for offering substandard housing, but they say this defense has been unfairly used by tenants seeking to avoid evictions, harming many well-meaning landlords.

Tenant advocates see this as evidence the system is working. These cases and settlements give tenants a lever to push back against landlords who aren’t taking care of their properties, fair compensation for deplorable living conditions and a means of avoiding the scarlet mark of an eviction judgment. 

“That characterization is unsurprising from people who view the responsibilities as only flowing in one direction,” said Maria Roumiantseva, associate coordinator at NCCRC. “In their view, the tenant’s job is to pay rent and their job is to collect it, and that’s not like the equation. The tenant’s job is to pay rent, and their job is to maintain the unit. It’s a two-sided contract.” 

When habitability claims are made, the parties typically end up settling out of court, Newhouse said. 

The math favors settlement on the landlord side. Legal defense for a trial that could last 18 months or more might run as much as $150K, especially when pricey mold testing is involved, Newhouse said. With habitability insurance increasingly rare and expensive, landlords are unlikely to recover any lost rent at the end of such a trial.

Those costs make settling for $10K or $15K seem like a bargain, he said. 

“Before we even get to court, we’re trying to get them out by saying, ‘Hey, take your two months’ free rent, get out,’” said Kari Negri, CEO of Sky Properties, a Southern California property manager with about 2,000 units. “‘We won’t file an eviction. Just go.’ It’s cheaper to do it that way.” 

But Calancas, the legal aid attorney, said landlords prefer settlements because trials lead to investigations that can turn up proof of habitability issues such as broken windows, damaged flooring or mold.

Both sides tend to benefit from keeping these settlements quiet, however. Landlords don’t want to encourage the use of these tactics in future cases or have someone out to test or inspect a building that is in bad shape. Residents just want to move on or get their property fixed. 

The degree to which these settlements are taking place, and the impact they have on renters and landlords, depends significantly on a number of factors, including the amount of legal support available to tenants in an area and the definition of habitability. 

In many states and jurisdictions, eviction and habitability issues happen parallel to each other. A tenant could win a decision to get rent relief due to a poorly maintained unit, but they might receive compensation after being evicted. 

The issue is especially pressing in places with broad definitions of habitability, like California.

“The first thing a tenant facing eviction is going to claim is, ‘I live in an uninhabitable apartment,’” Negri said. “One hundred percent of the time, they claim habitability. The uptick is because they know they can get away with it. There’s no reason not to do it.” 

Niv Davidovich, a partner at Los Angeles-based firm Davidovich Stone, who works for landlords, estimates roughly 5%-10% of habitability defenses stem from legitimate issues. 

Pollock said that number is incorrect and an understatement of the true degree of the problem. He pointed to studies that have suggested a large number of tenants have habitability issues. An evaluation of right-to-counsel tenants in Connecticut in 2025 found that roughly 55% of clients reported defective conditions. A similar report from last year looking at Cleveland renters found that approximately 76% of right-to-counsel clients indicated they had defective conditions in their homes.

LA landlords and attorneys argue that laws that favor tenants mean that judges allow habitability claims they say don’t stand up in court, and that there’s little to no burden of proof for such a claim. 

But it’s not that tenants are getting unfair leverage, Calancas said. He said lawyers only use this defense if they truthfully believe they can defend it under oath. They only raise these issues if tenants have photos, videos or other exhibits or evidence. 

Many tenant advocates and lawyers say that absent more legal aid and education, their clients didn’t know they had recourse for habitability issues. There are also “endemic” issues with habitability in lower-income housing, Pollock said. 

“A very good number of my clients have those significant conditions of disrepair,” Hill said. “They didn’t know that they could call the city to get an inspector out there to address the issue. There is a real lack of knowledge.”

Landlords and their lawyers, especially in Los Angeles, claim that this issue is going to really hurt property owners, raising their expenses and disincentivizing people from becoming landlords. Bad actors will hurt the system, they argue, and eventually hurt tenants. 

Some solutions have been proposed. In California, Assemblymember Josh Lowenthal introduced a bill that would have given landlords accused of having uninhabitable apartments the right to cure.

In effect, they’d be given a window to repair any issues raised by tenants. That way, the theory goes, they would fix any issues without the pressure of financially draining lawsuits. The measure was defeated in committee, but many landlord groups supported it. 

“We’ve been focusing on tenants’ rights, and we’ve been doing that for a long time,” Newhouse said. “But we also now have to turn a very strong eye to the housing providers’ rights and incentivizing people to come back to that line of work, to providing housing.”