- Habitability Problems
- Personal Property Left Behind After Eviction
- Security and Other Deposits
- Breaking Your Lease
- Reasonable Accommodations for Disabilities
- Landlord Harassment
- Noisy Neighbors
- Rent Increases and Receipts
Repairs and Fixes (Habitability Problems)
Casualty (major fire, flooding or roof collapse)
The fire or other casualty must substantially impair the dwelling. If you are not forced out of the dwelling immediately after the event occurred, the dwelling is probably not substantially impaired.
You can immediately vacate the premises and notify the landlord within 7 days of vacating that you terminated the lease on the day of the casualty. Moreover, you have the right to demand the return all prepaid rent from the date of move out.
Essential services (No heat, air-conditioning, running water, hot water, electricity, gas, or functioning door lock to the outside)
Under, NRS 118A.380, you must provide the landlord with a written request the repairs to be made within 48 hours, excluding holidays before you can take the following legal actions. Always keep a copy of the signed and dated letter. See Sample Essential Services Letter.
- Obtain the essential services on your own and deduct the cost from next month’s rent.
- Sue the landlord for actual damages including the reduction in the value of the dwelling. See Smalls Claims Court.
- Withhold any rent that becomes due. Note: You cannot withhold past due rent.
- Obtain comparable substitute housing during the time that your essential service is not working. For example, if your rent is $600 a month, you should find housing at around $20 per night ($600 divided by 30 days). If the substitute housing costs reasonable more than the current rent, client can recover the difference in cost from her landlord.
If a government inspector notified you and landlord of the lack of essential services, you do not need to wait 48 hours to file suit for damages or withhold rent.
Habitability (all other problems like plumbing, mold, bed bugs, roaches, etc.)
Under NRS 118A.355, you must provide 14 days written notice to the landlord before you can take any legal action. In the written notice, you must tell the landlord that if the repairs are not completed within 14 days, you will take any of the following legal actions. You should date, sign the letter and keep a copy of the signed letter. However, if the landlord starts making a reasonable attempt to make the repairs, you may not take these legal actions, and you will have to send another letter giving the landlord another 14 days. See Sample Habitability Letter.
- Terminate your lease.
- Sue to recover actual damages. See Smalls Claims Court.
- Repair or fix the problem on your own (like hiring a contractor) and deduct from your next month’s rent. You may only deduct up to one-month's worth of rent in repairing or fixing the problem.
- Withhold rent. You cannot withhold for past owed rent. You will have to deposit your rent with the justice court’s escrow account.
If a government inspector notified you and landlord of the habitability problem, you do not need to wait 14 days to file suit for damages or withhold rent.
Personal Property Left Behind After Eviction/Essential Personal Effects
Under NRS 118A.460, the landlord must allow you five days after the eviction to retrieve your essential personal effects. If not, then you can file an expedited motion with the court. You must do this within five days of the eviction. The court will hold a hearing within five days and could order the landlord to return your personal effects and award $2,500 if the landlord acted in bad faith.
For your other property, the landlord must store and keep your property for 30 days after you leave.If youdo not retrieve the property within 30 days, the landlord can dispose of the property. The landlord must provide 14 days notice before disposing of the property. At a minimum, however, the landlord must wait until the 30th day after you left before legally disposing of property.
You can file a motion to contest property lienwithin 20 days of requesting the return of the property if your landlord refuses to allow you to retrieve the property.
The landlord may charge actual and reasonable storage, inventory, and moving fee before allowing you to pick up your personal property, but the landlord cannot charge back rent or any other fees.
You can file a motion to contest property lien within 20 days of requesting the return of the property if you dispute the landlord’s charges as unreasonable or unlawful.
If your personal property was stolen or destroyed, you can sue the landlord in Small Claims Court for the value of the lost personal property.
Essential personal effects includes medication, ID, clothing, baby formula, and any other important item.
Security Deposit and Other Deposits
Security Deposit After Moving Out
NRS 118A.242 allows the landlord to claim from the security deposit any damages, other than ordinary wear and tear, cleaning fees, and unpaid rent. These deductions must be reasonable and lawful.
If your landlord fails to return the security deposit and fails to provide a written accounting of deductions to your security deposit within 30 days after you move out, you can sue the landlord. You must have provided your landlord with a forwarding address. You must be able to prove with documents or printed pictures that the landlord’s deductions were unreasonable or unwarranted. The landlord is liable to you for damages in an amount equal to the entire deposit and for a sum to be fixed by the court of not more than the amount of the entire deposit (e.g. twice the deposit). In awarding the above sum, a court can consider whether the landlord acted in good faith, the course of conduct between you and the landlord and the degree of harm caused by the landlord’s conduct. See Small Claims Court for instructions how to sue your landlord.
Security Deposits and New Landlords
The landlord is supposed to notify you of new landlord and that he has transferred your security deposit to the new landlord, or return your deposit less charges for damage, unpaid rent or cleaning (as discussed above), and notify the new landlord. If the former landlord transferred the deposit to the new landlord, then the new landlord must accept the deposit and cannot charge you an additional deposit during the term of the lease.
Cleaning deposits, pet deposits and other deposits are usually not refundable because the landlord can use the entire deposit amount for reasonable cleaning services. However, you should carefully read the terms of your lease. The deposit can be nonrefundable as long as it is indicated to be both a non-security deposit and nonrefundable.
Holding deposits are fees paid to reserve a dwelling before you sign a lease. Many landlords will state these holding deposits become security deposits when you sign a lease, but if you do not sign they lease, they are usually not refundable. You should carefully read the terms of the holding deposit contract.
Nevada law allows a surety bond instead of a security deposit, but your landlord cannot require the bond and you cannot force the landlord to accept it. However, your landlord can evict you after your lease expires if you do not purchase a surety bond. If you and the landlord agree, you will pay an up-front fee for a surety bond that will cover the legal deductions normally paid by your security deposit. If you disagree with the charges, you must notify the surety bond company. The surety bond can sue you for damages.
Breaking Your Lease
In most cases, breaking the lease would allow the landlord to sue you for unpaid rent and vacancy loss charge (the cost of re-renting the unit and loss of rent due to your vacancy).
Usually, criminal activity near your unit or even at your unit would not provide you a legal reason to move out. A common lease provision about safety or health is usually too vague to allow you to break your lease. Your landlord must have violated a specific part of the lease to warrant a legal reason to move out (for example, the lease requires a working gate for the complex, but the landlord has not fixed it for some time). If you believe your landlord has violated the lease, see Repairs and Fixes.
If your lease has an early move provision, you may be able to pay a certain penalty to move out. This lease provision is usually valid unless the penalty is disproportionate to the actual cost to the landlord.
NRS 118.175 requires the landlord to rerent the dwelling unit after you vacate and prohibits the collection of double rent(from you and the new tenant). The landlord can charge actual damages incurred until the dwelling is rerented. Turning in yourkeys or providing written notice are two ways to limit your liability and trigger the landlord’s duty to rerent.
Exception #1: Breaking Lease for Medical Treatment
Under NRS 118A.340, If you are 60 years or older, or you have a physical or mental disability, you may break your lease if you require relocation to receive treatment, such as moving to a group home. You should provide a written notice to your landlord, reference NRS 118A.340 and include a doctor’s note requiring you to move out. Note that this section only applies if you cannot possibly receive medical treatment at your current unit. For health problems associated with your unit, see Habitability.
Exception #2: Breaking Lease Due to Domestic Violence
Under NRS 118A.345, if you or your household member is a victim of domestic violence, you may terminate the lease at the end of the current rental period by giving the landlord written notice. The domestic violence event must have occurred within 90 days of the written notice. The tenant will need proof of the domestic violence either with an active temporary protective under, a police report stating domestic violence incident, or an affidavit by a physician, social worker, psychiatrist, or pastor. Your landlord cannot provide the domestic violence perpetrator with your new information.
You are only liable for rent owed through the date of termination and other outstanding obligations. The domestic violence perpetrator will be liable for all economic losses incurred by the landlord for you breaking your lease.
Determine Whether Your Landlord is in Foreclosure Process
Property records are available to the general public. Your local county recorder’s office will have a notice of default (initiating the foreclosure process), the notice of sale (the last notice before the sale), and any other foreclosure notices required by law. Transfer of title documents will also be available. These documents demonstrate who has legal title of your dwelling. Most recorder offices require the parcel number of your property. This information can usually be obtained from the county tax assessor.
Foreclosure Process in Nevada
The most common foreclosure process in Nevada is the trust deed foreclosure contained in NRS Chapter 107. If you landlord failed to make a mortgage payment, the bank or agent must first serve a notice of default and election to sell.
Three (3) months must elapse before the bank can continue with the foreclosure. All of this time you must pay rent to the landlord or you can be evicted. Although mandatory mediation is required in Nevada, your landlord does NOT have the right to mandatory mediation. Informal mediation with the lender is always available to your landlord and this may delay the foreclosure process. It is not uncommon for the notice of default to provide more than 3 months.
With the notice of default, the bank must also serve a Notice of Tenant’s Rights. The Notice of Tenant’s Rights purportedly informs you of your rights as a tenant. Read the section “Notice of Tenant’s Rights” for more information.
After the mediation process has concluded or 3 months, whichever is longer, the bank must then sent a notice of sale. This notice advises the landlord that the dwelling will be sold 21 days (or more) after the notice is recorded. You will also receive a Notice of Tenant’s Rights.
The landlord has until 5 days before the sale to pay the bank and stop the foreclosure. 21 days after the notice of sale is recorded or later, your dwelling will be sold at auction.
Notice of Default
The most common foreclosure process in Nevada is the trust deed foreclosure contained in NRS Chapter 107. If your landlord failed to make a mortgage payment, the bank or its agent must first serve a notice of default and election to sell. With the notice of default, the bank must also serve a Notice of Tenant’s Rights. The Notice of Tenant’s Rights purportedly informs you of your rights as a tenant. Read the section “Notice of Tenant’s Rights” for more information.
Three (3) months must elapse before the bank can continue with the foreclosure. All of this time you must pay rent to the landlord or you can be evicted. Mediation may make this process longer. It is not uncommon for the notice of default to provide more than 3 months.
NRS 107.080 requires a Danger Notice to be sent to owner occupied housing 60 days before the sale of the dwelling. Usually, the bank or its agent sends this notice much sooner. NRS 107.080 does not require this notice to be sent to you or your landlord, but the banks still send it. It basically notifies the landlord that the home may be lost in the foreclosure process.
Notice of Sale
Three (3) months after the notice of default, or after the mediation process has concluded, whichever is longer, the bank must then sent a notice of sale. This notice must advise the landlord that the dwelling will be sold 21 days (or more) after the notice of sale is recorded. You will also receive a Notice of Tenant’s Rights. The Notice of Tenant’s Rights purportedly informs you of your rights as a tenant. Read the section “Notice of Tenant’s Rights” for more information.
Your landlord has until 5 day before the sale at auction to save the dwelling from foreclosure.
Even though the landlord may not be paying the mortgage, you must continue to pay the rent as long as you live in the dwelling and the landlord owns the property. NRS 118A.210 requires a tenant to pay rent for use and occupancy of a dwelling. If rent is not paid, the landlord can evict you with a 5 day pay rent or quit notice. If you do not pay the rent, you will be evicted.
Real Estate Agent Access
The landlord or real estate agent has a right to show your dwelling to potential buyers. The landlord or real estate agent must provide 24 hours notice and you cannot unreasonably withhold your permission to allow these showings.
A landlord in Nevada does have the ability to enter the dwelling unit for the purposes of inspection, to make necessary repairs or to provide necessary services, or to exhibit the dwelling to prospective buyers, future tenants, workmen, or anyone else with a bona fide interest in inspecting the premises. NRS 118A.330(1).
A lock box is a locked container that is attached to your front door handle. The container holds the key to your dwelling. A lock box is not legal under Nevada law because the landlord must provide 24 hours notice before entering your dwelling.
NRS 118A.330 requires the landlord to provide 24 hours advance notice before entering your dwelling, except in emergencies. You cannot unreasonably withhold your consent if the landlord or real estate agent wants to show your dwelling to potential buyers. If the landlord or real estate agents provides 24 hours advance notice, accesses your dwelling based on purposes of showing the dwelling to prospective buyers, and visits at reasonable times during normal business hours, then you may not be able to do anything about it.
However, a lock box provides little or no notice and you can refuse to allow the landlord or real estate agent to put the lock box on your door. If the landlord installs a lock box on your door without your permission, you can remove the lock box.
NRS 118A.500 allows you to seek an injunction to stop the landlord from abusing the right to access your dwelling. A lock box would be an abuse of the landlord’s right to access your dwelling. You should send a written request to the landlord asking the landlord to respect your rights under NRS 118A.330. NRS 118A.500 allows you to terminate the rental agreement or seek an injunction if the landlord abuses access.If you send written notice to the landlord, you should request that the landlord remove the lock box and provide 24 hours advance notice before showing the dwelling.
Asking the landlord to comply with NRS 118A.330 is not a reason to evict you. In fact, it would constitute retaliation under NRS 118A.510 and provide a defense to an eviction notice.
If you allow the lock box and want to change your mind, you should notify the landlord. You can refuse to let the landlord or real estate agent into your dwelling without advance notice and you can use reasonable force or call the police if the landlord or real estate agent enters and will not leave.
24 hours notice is not needed in any emergency. Showing the home to potential buyers is NOT an emergency.
Cash for Keys
“Cash for keys” is a voluntary program where the new owner of a home will give you money in exchange for your promise to leave in certain amount of time. The new owner will also ask you to clean the premises before leaving. If the new owner will only pay you after you move out, then you should get the cash for keys offer in writing.
Tenant's Rights After Foreclosure
After title to the property is taken away from your landlord, you can voluntarily leave after the foreclosure and we recommend providing notice to the new owner. NRS 40.255 provides this right.
If your former landlord lost the unit in foreclosure and you live in a rented house or fourplex or less, then the new owner must serve you with a 60 days eviction notice. After the 60 days expire, the new owner must serve a summons and complaint for unlawful detainer. If this procedure is followed, you will not have a defense to the eviction. You can file an answer after receiving the summons and complaint to ask the judge for more time to move at a hearing. By law, the judge can allow up to 10 extra days before ordering the eviction.
If you rent an apartment with more than 4 units, the new owner only has to serve a 3 day notice, followed by a summons and complaint. If this procedure is followed, you will not have a defense to the eviction. You can file an answer after receiving the summons and complaint to ask the judge for more time to move at a hearing. By law, the judge can allow up to 10 extra days before ordering the eviction.
Security Deposit After Foreclosure
After the foreclosure, sale, or the property otherwise changes hands, your landlord has to either return the security deposit to you, after making any deductions allowed under NRS 118A.242 (see section on security deposits), or transfer your deposit (minus the deductions) to the new owner. If the security deposit is transferred, the new owner then has the same obligations as the previous landlord and must return the deposit or provide a written accounting within 30 days after you move out. If the security deposit is not transferred and not returned to you, you can sue the old landlord under NRS 118A.242 if more than 30 days has expired after the property transfers. You will likely, though, want to name both the old landlord and the new owner in any lawsuit to recover your deposit as both may be liable depending on the circumstances of each situation and this is an unsettled area of law.
The new owner cannot charge you an additional security deposit for 30 days or the duration of your rental agreement, whichever is longer. If your deposit was transferred, or the new owner charged an additional deposit, the new owner should return your deposit or supply a written accounting within 30 days after you move out. If not, you can sue the new owner. The lawsuit against the new owner would be based on a violation of NRS 118A.242 (see above).
Reasonable Accommodation for Disability
Fair Housing Accommodation Requests for Disability
Common reasonable accommodation requests include moving from an upstairs to a downstairs unit, relocating to a unit closer to an exit, and fixing an elevator. If you suffer from a disability, you may write a letter to your letter requesting a reasonable accommodation directly related to your disability. The federal Fair Housing Amendments Act of 1988 (FHAA) puts a duty upon landlords to “make reasonable accommodations in rules, policies, practices, or services” to provide equal access to housing to a person with a disability. NRS 118.100 mirrors the federal anti-discrimination requirements. Landlords must grant the reasonable accommodation request even if the request results in a financial cost to the landlord. However, landlords are not required to grant the request if the financial cost will cause an “undue financial or administrative burden” on the landlord. Whether there is an undue burden is determined on a case-by-case basis.
Even if the landlord has a “no pets” policy, you can still keep your service or emotional support animal. You should first submit a written request to the landlord. In this letter, you should ask the landlord to accommodate your disability by allowing you to keep your service or emotional support animal. Keep of a copy of this letter. You should include with your letter any medical documentation to support why you need the service animal and any certification for your animal. Under state law, a landlord may request evidence that the animal assists you.
Proof that an animal is a service animal is not required under the Fair Housing Act. The landlord is not allowed to ask for proof of your disability under the Fair Housing Act. However, the landlord can ask for proof that your needed service animal accommodation be related to your disability. A note from your doctor should be enough for an emotional support animal.
The landlord must allow you to keep your animal unless the request is unreasonable. An unreasonable request usually involves an animal that causes undue damage to the premises, makes too much noise, or attacks other tenants or their pets. You must also clean up after your service or emotional support animal.
If the landlord denies your request, ask the landlord to put this denial in writing. If you disagree with the denial, you can then file a Fair Housing complaint with the local U.S. Housing and Urban Development (HUD) office.
A service or emotional support animal is not a pet and should not be subject to any extra pet deposit as this would discriminate against tenants with disabilities and violate the Fair Housing Act.
Landlord Discrimination, Harassment, Retaliation or Entering the Leased Dwelling
Retaliation by Landlord
Retaliation generally happens when you complain about conditions in or around your dwelling and instead of fixing these problems, the landlord serves an no cause eviction notice. For example, if you complain in good faith to the landlord about habitability problems, or call the police about crime, the landlord cannot retaliate by serving you an eviction notice. Include this legal defense when you file a tenant’s affidavit with the court.
If your landlord retaliates by raising your rent and you refuse to sign the new lease, and then the landlord attempts to evict you, include this information in your tenant’s affidavit with the court. However, the landlord can still prove that the rise in rent is reasonable if the increase in rent applies in a uniform manner to all tenants.
If your landlord retaliates by shutting off an essential service to your dwelling, include this information in your written letter to the landlord under Essential Services.
Landlord Enters Dwelling Without Permission
Under NRS 118A.330, alandlord or agent hasthe ability to enter the dwelling unit for the purposes of inspection, to make necessary repairs or to provide necessary services, or to exhibit the dwelling to prospective buyers, future tenants, workmen, or anyone else with a bona fide interest in inspecting the premises. However, the landlord should provide 24 hours advance notice before entering your dwelling, except in emergencies. You cannot unreasonably withhold your consent for the landlord to peaceably enter for the reasons and under the conditions set forth above.
The landlord violates NRS 118A.500if the landlord’s repeated demands for access unreasonably harass you. You may terminate your lease or seek an injunction in court to stop the landlord from abusing the right to access your dwelling.
Discrimination and Harassment
Under the federal Fair Housing Act and NRS 118.100(1)(b), Discrimination is a defense to an eviction if you have strong, documented proof your landlord singled you out based on race, color, religion, nationality, sex, disability, sexual orientation, gender identity, or families with children or pregnant mothers. Most landlords know enough about fair housing to avoid listing blatantly discriminatory reasons for eviction and explain that evictions are a case-by-case basis.
Harassment by landlord is not a legal defense to eviction. Harassment is also not a basis to sue the landlord, except in cases where you have strong, documented proof.
If you lease contains an express right to quiet enjoyment, you can enforce this right against a neighbor in your same complex by asking that the landlord cure the problem. Under NRS 118A.350 you must issue a signed and dated written noticeto the landlordand wait 14 days before client can terminate the rental agreement, suethe landlordfor damages, or seek other reliefin court.If your landlord makesa reasonable attempt to fix the problemduring the 14 days, you must restart the process if the problem continues.
Raising Your Rent
After your lease expires, the landlord may increase rent. Under NRS 118A.300, the landlord must provide 45-days written notice before increasing the rent. If your lease has not expired, the landlord may not increase rent. If you do not agree to the rent increase, the landlord may serve you a 30-day no cause notice to evict you.
Rental Payment Receipt
Under 118A.250, the landlord must provide a receipt for rent and any other payment to the landlord, including a security deposit or fees. You may refuse to make rental payment until your landlord tenders the receipt.
What is “housebreaking”?
A person who breaks into a house without permission for the purpose of taking up residency is guilty of housebreaking. This is a crime and you can go to jail. The police can take you to jail and the landlord can lock you out.
What is “unlawful entry”?
A person who enters an open or unsecured house without permission for the purpose of taking up residency is guilty of unlawful entry. This is a crime and you can go to jail. The police can take you to jail and the landlord can lock you out.
What happens if I am locked out without notice?
The landlord may lock you out if housebreaking or unlawful entry has been alleged and no one remains in your dwelling. The landlord must post a notice on your dwelling that allows you 21 days to contest the lockout by filing a complaint for unlawful lockout in the justice court of the township where you live. You must also deliver a copy of this complaint to the landlord or manager.
DO NOT TRY TO RE-ENTER THE DWELLING! This is a criminal offense punishable by up to 4 years in jail.
I have been locked out for housebreaking, but I cannot find a notice. Can I still file a complaint for unlawful lockout?
Yes, the landlord must post a notice on your dwelling AND file a copy of the notice with the court. You should be able to get a copy by going to your local justice court. The notice may be in the name of “Current Occupant” so let the clerk know your address.
I just received a 4 Day Housebreaking Notice. What should I do?
A landlord may serve a 4 Day Housebreaking notice if the landlord believes you have broken into a dwelling or just entered and refuse to leave. The Notice should be served to you, but can be posted on the property and mailed to you and can contain the name “Current Occupant” if the landlord does not know who you are. You can either vacate the premises or file an opposition with the justice court within 4 days. You then have 4 business days after the day you receive the notice to either move out, request a delay in the eviction (stay), or contest the eviction. Do not count weekends, holidays, and other days the court is closed. To contest the eviction, you must file an affidavit with the court.
What happens to my personal property left behind?
The landlord can dispose of your property within 21 days of when the landlord locked you out. If you do not know when the landlord locked you out, then you should consider giving up the right to contest the lock out if you really need your property. The complaint to challenge the lock out may result in waiting longer than the time you have to retrieve your property and your property may be gone.
If you want to challenge the landlord's right to hold your property, then you should file an affidavit with the court to challenge the landlord's right to hold your property. This must be filed within 21 days of the lock change. The landlord does have the right to charge reasonable storage fees, or moving and storage fees before returning your property to you.
If you have been through the court process or the constable/sheriff locked you out, then you only have 14 days to file a motion (not affidavit) to challenge the landlord’s right to hold your property. The landlord must wait 21 days, however, before disposing of your property.
What happens if I am not arrested or I am released and still live in the house?
The landlord cannot lock you out if you or someone in your household remains in the dwelling. The landlord must then proceed with an eviction by serving a 4 Day Housebreaking Notice. You must file an affidavit with the court to contest the eviction before the court clerk closes on the 4th business day after receiving the notice. Do not count weekends, holidays, or other days the court is closed.
I contested the eviction by filing an affidavit. What happens next?
The court will review your affidavit. If your affidavit contains an element of a legal defense, then the court will schedule a hearing. If your affidavit does not contain an element of a legal defense, the court will order your eviction. An eviction order will be signed by the judge and a constable/sheriff will lock you out within 24 hours (unless the court granted your stay request).
If your affidavit raised an element of a legal defense, then the court will schedule a hearing. You and your landlord will be required to attend the hearing and the court will determine if you have raised a legal defense. If you fail to raise a legal defense, you will be locked out. The court can delay the lockout by providing 20 days before the constable/sheriff locks you out.
If you have been locked out, you will then have 21 days to retrieve your property. The landlord does have the right to charge reasonable storage fees, or moving and storage fees before returning your property to you. See “What happens to my personal property left behind?” above.
Evictions, Lockouts, and Utilities Shut Offs
- No Cause Notices
- Nuisance Notices
- Lease Violation Notices
- Pay Rent or Quit Notices
- Notices after change in ownership (sale, foreclosure, etc.)
Utilities Shut Off
No Cause Notices
Under Nevada law, NRS 40.251, the landlord can serve a No Cause Eviction Notice after your lease has expired. This Notice does not have to provide you with any reason for the eviction.
If you rent by the week, the landlord must serve a 7 day notice. If you rent for any other period of time, the landlord must provide a 30 day notice.
After the no cause notice expires, the landlord must then serve a 5 Day Unlawful Detainer notice. At the expiration of the Unlawful Detainer Notice, the landlord can file for an eviction with the court. You must file an affidavit during this 5 day period to contest the eviction. You must present a legal defense to avoid the eviction.
If you are disabled or 60+ years of age, you can request an additional 30 days in writing if you supply proof of your age or disability. If the landlord denies your request, you can then file a Tenant’s Affidavit in court when you receive the 5 Day Unlawful Detainer upon the expiration of the No Cause Notice. The court will determine whether you can stay the additional 30 days.
If you are 59 or younger and not disabled, you can ask the court for more time (up to 10 days) to move under NRS 70.010. You do this by waiting for the landlord to serve a 5 day unlawful detainer after the expiration of the No Cause notice. Then, you must file an tenant’s affidavit with the court within 5 business days. However, you will not have a legal defense to a no cause eviction notice unless your lease has not expired or your landlord has discriminated or retaliated against you.
Nevada law defines a nuisance as anything serious or repeated that affects your neighbors or the condition of your dwelling. For example, a party celebrating your child’s graduation is probably not a nuisance. Repeated wild parties would be a nuisance.
Depending on the circumstance, this could mean that if you can fix the problem within the expiration of the notice, you will have a legal defense to the eviction. In some situations, however, the nuisance is so severe that you cannot fix the problem, such as committing a serious crime on the property.
After receiving the 3-Day Nuisance Notice, you should submit a statement in writing to your landlord that you have “cured,” fixed, or resolved the problem. The statement should be signed, dated, with a copy to yourself, and include relevant documents, if available.
If the landlord does not agree that the conduct has ceased or otherwise wants to continue with the eviction, you will receive a 5 Day Unlawful Detainer Notice after the 3 Day Nuisance Notice Expires.
The 5 Day Unlawful Detainer Notice must advise you that you have five business days to move or file a tenant’s affidavit with the Justice Court to ask for a hearing on the matter. Do not count the day you received the notice, weekends, and holidays when the state court is closed. Some courts have 4-day weeks and you do not count the Friday or Monday that the court is closed. Also, if the fifth day is a weekend or holiday, you then have until the next day the court is open.
If you do not file an affidavit and do not move, then the landlord can get an eviction order from the judge at the end of the 5 Day Unlawful Detainer Notice without any further notice to you. The constable or sheriff will then serve the eviction order to you and lock you out within 24 hours.
Lease Violation Notices
Your landlord can only evict you for a “material” lease violation. “Material” means important or legally significant. Repeated instances of minor violations of your lease also constitute a basis for eviction. For example, not paying a security deposit could be a material lease violation.
After receiving the 5-day Lease Violation Notice, you should submit a statement in writing to your landlord that you have “cured,” fixed or resolved the problem. The statement should be signed, dated, with a copy to yourself, and include relevant documents, if available.
If the landlord does not agree that the lease violation has ceased or otherwise wants to continue with the eviction, you will receive a 5 Day Unlawful Detainer Notice after the 5 day Lease Violation Notice expires.
The 5 Day Unlawful Detainer notice must advise you that you have five business days to move or file tenant’s affidavit with the justice court to ask for a hearing on the matter. Do not count the day you received the notice, weekends, and holidays when the state court is closed. Some courts have 4 day weeks and you do not count the Friday or Monday that the court is closed. Also, if the fifth day is a weekend or holiday, you then have until the next day the court is open.
If you do not file an affidavit and do not move, then the landlord can get an eviction order from the judge at the end of the 5 days without any further notice to you. The constable or sheriff will then serve the eviction order to you and lock you out within 24 hours.
If you have received a 7 Day Pay or Rent or Quit Notice, you have until the close of business on the 7th day following service of this notice to pay the rent, move, or file an affidavit with the Justice Court to request a hearing. You do not count the day you are served. You also do not count weekends, holidays, and other days when the court is closed. Some courts have 4 day weeks and you do not count the Friday or Monday the court is closed. Also, if the seventh day is a weekend or holiday, you then have until the next day the court is open.
If you paid your rent (including partial payment) or tried to pay your rent in full, you may have a legal defense to eviction. The landlord can refuse partial payment.
Late fees are not considered part of your rent and cannot exceed 5% of your monthly or weekly rent.
Under Nevada law, you may withhold rent only if (1) your dwelling has a habitability problem, (2) you have provided written notice to your landlord, (3) your landlord has not fixed this problem or attempted to fix the problem within 14 days, and most important, (4) you must deposit the withheld rent with the court once you file your tenant’s affidavit. See the section on habitability problems for further details.
Foreclosure Notices to Owner
For information for homeowners undergoing foreclosure, please see our section on foreclosure.
For tenants of landlords undergoing foreclosure, please see our section on post-foreclosure eviction.
Notices After a Change of Ownership
First, determine whether ownership of the property has changed. You should pay whoever is the current owner of the property. Find property ownership information, contact your county Assessor's office. Clark County Assessor's office offers information online.
If your former landlord sold the unit, then the new owner must honor your lease and the old owner must transfer your security deposit to the new owner. If you live in a complex with 5 units or more, the new owner must provide a 3-day eviction notice. These three days do not include weekends, holidays, or days the court is closed. After the 3 days, the new owner must serve a summons and complaint for unlawful detainer. This process takes at least 3 weeks. You can answer the complaint and appear at your hearing, but you will not have a legal defense if the new owner follows this procedure. You can ask the judge for more time to move and by law, the judge can allow up to 10 extra days before eviction.
If your former landlord lost the unit in foreclosure, you will also receive a 3 day notice if you live in a complex 5 units or larger. If you live in a 4-plex or smaller, the new owner must serve a 60 day notice.
After the 60/3 days expire, the new owner must serve a summons and complaint for unlawful detainer as explained above.
Only a Sheriff or Constable can lock you out of your dwelling. A Sheriff or Constable will conduct a lockout only when a judge orders an eviction. A private individual, such as a landlord, cannot conduct a lockout without a Sheriff or Constable.
Under NRS 118A.390, you must file a complaint for expedited relief due to the lockout within five judicial days after being locked out. You will receive a hearing within three judicial days after filing. If the court agrees that the landlord unlawfully locked you out, the court may: (a) order your landlord to restore your access to the premises, (b) award you damages, and (c) order your landlord from locking you out againat the risk of contempt of court.
NRS 118A.390 prohibits a landlord from intentionally interrupting an essential items or service, such as door locks, power or water service. You must file a complaint for expedited relief based on the lack of essential services within five judicial days after your landlord turns off or takes away the essential service or item. You will receive a hearing within three judicial days after filing. If the court agrees that the landlord unlawfully turned off the essential service, the court may: (a) order your landlord to restore your access to the essential service, (b) award you damages,and (c) order your landlord from turning off the essential service at the risk of contempt of court.
Foreclosure Process and Mediation Program in Nevada
To buy a home most people borrow money from a bank or another lender. In exchange for the loan, the lender holds a lien against the property. If the borrower misses payments, then the loan goes into default and the lender can sell the property to pay off the loan. This process is called mortgage foreclosure.
Does my lender have to go to court to initiate a foreclosure against me and my property?
No. The majority of foreclosures in Nevada are trust deed foreclosures. A trust deed foreclosure is non-judicial, meaning your bank, lender, or mortgage servicer does not need to go to court to foreclose and sell your home. If you have missed a mortgage payment, the lender or servicer begins the foreclosure process by mailing and recording a Notice of Default or Breach and Election to Sell. This is notice to you that the legal foreclosure process has begun and you will have about 4 months to cure the arrearage or work something out with your lender to save your home from a foreclosure sale.
How do I know if my lender has begun foreclosure proceedings against me?
A Notice of Default will be recorded against your property and sent via registered or certified mail with a return receipt to the homeowner and each guarantor or surety to the mortgage. The Notice of Default must describe the deficiency and include (1) contact information for a person with the authority to negotiate a loan modification, (2) contact information of at least one HUD approved housing counseling agency the homeowner can contact for assistance, and (3) contact information for the Foreclosure Mediation Program. The Notice of Default must also be posted on the property within 3 days of recording. This rule applies to all single family residences or small complexes that have 4 or less units (one of which the homeowner must live in).
How soon can my lender record the Notice of Default and Election to Sell?
Your lender must wait at least 30 days after you miss your first mortgage payment before it must send you a letter telling the homeowner of the lender's right to foreclose and offering a list of foreclosure alternatives. If the homeowner does not resolve the delinquency within the next 90 days, the bank can record a Notice of Default. Additionally, under new guidance from the Consumer Financial Protection Bureau, the Notice of Default can be recorded no earlier than 120 days after the homeowner defaults.
What is mediation?
Mediation is an opportunity for homeowners and lenders to meet and discuss alternatives to foreclosure. Mediation is mandatory for your lender if you complete the Enrollment in Mediation form and submit a non-refundable $200 fee to the State of Nevada Foreclosure Mediation Program. Your lender is required to mail you the Enrollment in Mediation form when the Notice of Default is mailed to you. You and your lender will sit down with a mediator to discuss ways to avoid or lessen the hardship of foreclosure. The mediation requires good faith on the part of both you and your lender. This means you cannot request mediation to simply delay the foreclosure sale.
How do I know if I am eligible to participate in mediation and how do I request it?
Mediation applies to residential properties located in Nevada that are owner-occupied and the primary residence of the owners. Your lender will include the mediation request forms with your Notice of Default. You will also receive two pre-addressed envelopes to send a copy of the mediation request and financial forms to both the Foreclosure Mediation Program and the foreclosure trustee (the agency that recorded the Notice of Default). You must elect mediation within 30 days by sending notice to the mediator and your lender otherwise you will have been deemed to have waived (given up) mediation. You must also send $200 to the Foreclosure Program Administrator if you wish to request mediation.
Am I the only one that pays for the mediation, or does the lender have to contribute?
No. Your lender must also pay for mediation. The total cost of mediation is $400 and goes to the mediator. This cost is shared 50/50 between the homeowner and the lender. This is why you only send $200 to the Foreclosure Program Administrator.
What additional documents or information do I need for mediation?
After submitting the mediation forms and $200, the mediator will contact both parties to schedule a document exchange. Both the homeowner and the lender are required to exchange various documents throughout the mediation process. Most of the information the homeowner will submit to the lender will include documentation the lender requires to evaluate a homeowner for a loan modification. Generally, homeowners will be evaluated for eligibility under the Making Home Affordable program (HAMP) as a starting point. For further information regarding the Making Home Affordable program, please click here. For additional forms regarding the mediation process, the Civil Law Self Help Center has forms to petition the court and other information.
In order to have the best possible chance to work something out at mediation, you should have (1) a steady income or the prospects of a steady income in the near future; or (2) you are willing to give up your home (short sale) and want more time and/or money to move (cash for keys). Good faith also requires your lender to accept a reasonable offer.
How long before a mediator is assigned to my case?
The Foreclosure Mediation Program will assign a mediator 10 days after receiving the Election form from both the homeowner and the foreclosure trustee. The mediation must then take place within 45 days of the mediator’s assignment. The mediation process should not take longer than 135 days, from the day the Mediation Program receives both your Election of Mediation form and the form from the foreclosure trustee.
What forms and documents is the lender required to provide at mediation?
The foreclosure trustee, lender, servicer, or other representative (whoever shows up for the bank at the mediation) must also submit certain documents. The representative must submit an appraisal no more than 60 days old, an estimate of short sale value, a non-binding proposal to resolve the foreclosure, and the original or a certified copy of the Deed of Trust, each assignment of the Deed of Trust, the Note, and each endorsement of the Note. If the original documents are lost or destroyed, the mediator can accept a court order to enforce a lost, destroyed, or stolen instrument. These documents must be submitted to the mediator and exchanged between parties at least 10 days before the mediation.
What happens if the lender does not bring the required documents to mediation?
If the bank or its representative does not turn over an original or certified copy of the Note, Deed of Trust, each assignment of the Deed of Trust, and each endorsement of the Note, the penalty is sanctions, which can include unilateral modification of the loan. At the very least, the mediator will not certify mediation as complete so the Foreclosure Mediation Program will not issue the certificate that allows the bank to proceed with the foreclosure. The parties must then file a petition in court to proceed with the foreclosure or seek sanctions. The petition seeking judicial review of the mediation must be filed within 30 days after you receive the Mediator's Statement from the mediation. If the lender does not bring all required documents to mediation and does not file a petition for judicial review, it must rescind its Notice of Default and restart the process by recording a new Notice of Default. Typically, restarting the process can take the bank 6 months to a year. Once a new Notice of Default is recorded, the homeowner has the opportunity to enroll in mediation once again.
What if I don’t want to participate in mediation?
If you do not wish to request mediation and instead elect to waive mediation, the foreclosure trustee (company proceeding with the forced sale of your home) can apply for a certificate that no mediation is required from the Foreclosure Medication Program Administrator by filling out and submitting their Trustee’s Affidavit. Once the certificate that no mediation is required is received from the Foreclosure Mediation Program, the foreclosure trustee must record the certificate and send it to the homeowner. If the homeowner does not respond to the notice advising of the right to request mediation within the 30 days to do so, the foreclosure trustee can seek the certificate that no mediation is required to proceed with the foreclosure sale.
Once the certificate that no mediation is required is recorded and sent to the homeowner, the foreclosure trustee can continue with the foreclosure pursuant to NRS 107.080. This means that the trustee can issue the Notice of Sale 3 months after recording the Notice of Default.
What happens if I am not satisfied with the outcome of mediation?
If either party is not satisfied with the outcome, a Petition for Judicial Review can be filed. This must be done within 30 days of the receipt of the mediator’s statement. These petitions must be filed with the District Court in the county where the notice of default was recorded.
Are there any additional benefits if I am an active duty service member?
The Service Members Civil Relief Act of 2003 (formerly the Soldiers’ and Sailors’ Civil Relief Act of 1940) provides additional benefits to service members on active duty.
A court order is required before a home is sold at a foreclosure sale while a service member is on activity duty or within 90 days after the end of active duty. This law applies even in non-judicial foreclosure states like Nevada. Therefore, a lender cannot foreclosure on a home through the trust deed foreclosure process. Instead, the foreclosing party must file a foreclosure action in court.
If the home is sold at a foreclosure sale without a court order, the sale may be rendered invalid and could subject the lender to criminal prosecution.
The court can also stay foreclosure proceedings while the service member is on activity duty. The military service must materially affect the service member’s ability to pay, though, in order to obtain the stay of the foreclosure proceedings. A foreclosure obtained by default during active duty or within 60 days after the end of active duty may be reopened or set aside by the court.
Active duty service members can also request a reduction in the interest rate on any debt incurred prior to active duty. The interest rate must be reduced to 6% while the service member is on active duty. The service member must request the interest rate reduction from the lender and provide proof of the return to active duty in order to qualify. If the ability to pay on the debt, though, is not materially affected by the military service, a court can decide to raise the interest rate above 6%.
When can the bank sell my home?
The Notice of Sale may be issued to the homeowner 3 months after the Notice of Default is recorded and the Foreclosure Mediation Program has issued the certificate that mediation is complete. The Foreclosure Mediation Program certificate must be recorded and should be done before the date the Notice of Sale is recorded. Prior to issuing the Notice of Sale, the foreclosure trustee must issue the homeowner a danger notice. The danger notice must be sent to the homeowner at least 60 days before the sale and notify the homeowner of a legal services organization or a HUD approved housing counseling agency the homeowner might contact for assistance, among other potentially helpful contact information.
The foreclosure trustee must record the Notice of Sale and give notice of the time and place of the sale by (1) personally serving or mailing the notice by registered or certified mail to the homeowner and all others entitled to notice (which includes any surety on the mortgage or the subordinate lien holder); (2) posting the notice in a public place where the property is located for 20 successive days; (3) publishing a copy of the notice 3 times (once a week for 3 weeks); AND (4) posting a notice on the property at least 15 days before the sale date. This generally means that the sale date cannot be sooner than 3 weeks after the recording of the Notice of Sale.
The homeowner still has up to 5 days before the actual date of sale to cure the default and reinstate the mortgage. If nothing is done to stop the foreclosure prior to the sale, the home can be sold at auction on the date and time listed on the Notice of Sale.
What happens at a foreclosure sale?
At the foreclosure sale, the lender (or some one else) purchases the property (gaining title). Afterward the lender or other new owner may serve you with a 3 day notice to quit. If you remain after 3 days, the lender may serve you with a summons and complaint asking a court to evict you. This court action is called an unlawful detainer action. The new purchaser may not enter your home or change the locks until after serving a summons and complaint for unlawful detainer and completing the lawsuit. For more information about evictions during or after a foreclosure, please see our Foreclosure Evictions page for more information.
NOTE: The information contained on these pages is for general background information only. If you have a legal question, it is best to consult with an attorney.
Homeowners Associations and Foreclosure
The HOA Foreclosure Process
If a homeowner defaults in paying the monthly assessments, an HOA can foreclose. A common misconception is that the association cannot foreclose if you are current with your mortgage payments. However, the association’s right to foreclose has nothing to do with whether you are current on your mortgage payments.
In Nevada, the HOA may hold a foreclose sale after sending the homeowner a notice of delinquent assessment lien, recording a notice of default and election to sell, and providing notice of the foreclosure sale to the owner.
NOTICE OF DELINQUENT ASSESSMENTS:
Before starting the foreclosure, the HOA must mail a notice of delinquent assessment to the homeowner, which states:
- The amount of the assessments and other sums that are due
- A description of the unit against which the lien is imposed, and
- The name of the record owner of the unit
NOTICE OF DEFAULT:
Not less than 30 days after mailing the notice of delinquent assessment, the association may then record a notice of default and election to sell (NOD) with the county recorder. (The NOD must contain the same information as the notice of delinquent assessment lien, along with a warning that if you do not pay the delinquent amount you could lose your home.) The HOA must also mail a copy of the NOD to the homeowner.
If the owner does not pay the amount of the lien, including costs, fees, and expenses within 90 days following the recording of the NOD, the home can be sold at a foreclosure sale. The HOA must provide notice of the date and time of the sale to the owner.
What can I do if I fall behind in my HOA dues?
If you are behind on your HOA dues, there are several options for you to get caught up before the HOA initiates a foreclosure.
PAY OFF THE DELIQUENCY OUTRIGHT: The quickest way to get caught up and prevent the HOA from pursuing a foreclosure is to pay all of the past-due amounts in one lump sum, including any late fees or other fees.
NEGOTIATION ON A REDUCED PAYOFF OF THE DELIQUENCY: If you cannot come up with enough cash to cure the missed HOA dues all at once, you may be able to convince the HOA to accept a reduced amount to satisfy the debt. However, most HOAs simply will not accept a reduced payoff.
ENTER INTO A PAYMENT PLAN: Your HOA may will consider allowing you to enter into a repayment plan to get caught up on your HOA dues. The typical length of repayment is 6 months to 2 years.
FILE FOR BANKRUPTCY:
If you are behind in HOA dues and are thinking about filing for bankruptcy, there are some special considerations you should keep in mind. You can temporarily stop an HOA from foreclosing by filing a Chapter 7 bankruptcy. You can halt a foreclosure by filing for bankruptcy due to the automatic stay, which immediately goes into effect when you file. The stay functions as an injunction prohibiting the HOA from foreclosing on your home during the bankruptcy process. However, this will likely only provide a temporary reprieve because the HOA can seek permission from the bankruptcy court to continue with the foreclosure.
Chapter 7 bankruptcy
If you file for Chapter 7 bankruptcy, you may be able to discharge (eliminate) your personal liability of any HOA dues that you owe. Unfortunately, the HOA lien remains against the property and the bank can still foreclose. This is beneficial if you intend to surrender your home, but if you plan on staying in the home, you’ll have to pay the dues to avoid a foreclosure.
Chapter 13 bankruptcy
In a Chapter 13 bankruptcy, HOA dues that accrued before you file are treated as secured claims. This means that if there is equity in your property at the time you file your bankruptcy, your Chapter 13 plan must provide for payment to the HOA. If your house is underwater (where you owe more on the mortgage than the house is worth), then the HOA lien can be stripped, but you’ll still have to pay future dues if you plan to continue living in the home.
ALTERNATIVE DISPUTE RESOLUTION (ADR):
The ADR process is required under NRS 38.300 to 38.360, before parties may file a civil action in court. The ADR process is available to all unit owners even if they have no intention of filing civil action in court. Beginning October 1, 2013 parties with a dispute about the governing documents of their common interest community must either participate in the Division’s referee program or mediation prior to going to court. The referee program is voluntary and both parties must agree to participate.
If the referee program is not selected by both parties, the dispute will be mediated. If the dispute is not resolved by mediation, parties that initially participated in mediation may agree to have the issue arbitrated. Arbitration may be binding or non-binding.
How does mediation work?
A mediator is a neutral third party who helps you and your lender try to reach a voluntary negotiated agreement. The lender may not foreclose until mediation has been completed. Mediation is fast (less than four hours), inexpensive ($500, shared equally by the parties), and more flexible than more formal processes. The goal of the program is to make foreclosure a remedy of last resort.
To elect mediation, you must complete the Election/Waiver of Mediation Form and mail the original, by certified mail, to the OMBUDSMAN’s Office along with your $250 payment. You must also mail, by certified mail, a copy of the election form to the HOA.
Three parties will be present at the mediation: You, a representative for the HOA, and the mediator. Both you and the HOA must negotiate in good faith.
What is the Ombudsman Informal Conference Program?
An ombudsman is a person who helps resolve complaints, acting as a trusted intermediary between an organization and the public. The Ombudsman for Owners in Common-Interest Communities and Condominium Hotels assists homeowners’ association owners, residents and board members in understanding their rights and responsibilities under the law.
If both parties agree to meet, a conference will be held in an attempt to resolve the issues between the parties. The primary goal of the conference is to try to address the issues and find a resolution. Ombudsman conferences are not hearings. They are voluntary, informal meetings that both sides agree to attend in order to discuss the disputes and find mutually agreeable resolutions.
Information about deficiencies post-foreclosure
In Nevada, if your home is sold through foreclosure and the sale price is not enough to cover the balance of your mortgage; your lender can sue you for the deficiency and try to get a deficiency judgment. However, there are limits to the amount of the deficiency judgment and in certain circumstances the lender is prohibited from receiving a deficiency judgment.
WHAT IS A DEFICIENCY AFTER FORECLOSURE?
When a lender forecloses on a mortgage, the total debt owed by the borrowers to the lender frequently exceeds the foreclosure sale price. The difference between the sale price and the total debt is called the deficiency. The reason the bank can sue you for the deficiency is because you signed a mortgage note promising to repay the bank a certain amount of dollars, the bank can sell your property to recoup those dollars, but if you owe more than the home is worth then the bank can sue you personally.
SOME DEFICIENCY JUDGMENTS ARE PROHIBITED:
A deficiency judgment is not allowed when all of the following apply:
- the lender is a financial institution (banks, savings and loan associations, credit unions, and thrift companies are examples of financial institutions);
- the loan is a purchase-money loan that has not been refinanced (this means the loan was used to purchase the home);
- the property is a single-family residence owned by the borrowers at the time of the foreclosure sale; and
- the borrowers have continuously occupied the property as their principal residence, and the loan was obtained on or after October 1, 2009. (Nev. Rev. Stat. § 40.455).
LIMITATION ON DEFICIENCY JUDGMENTS:
In Nevada, a lender may obtain a deficiency judgment within six months following foreclosure, but the amount of the judgment is limited to the lesser of:
- the difference between the total debt and fair market value of the home; or
- the difference between the total debt and foreclosure sale price (Nev. Rev. Stat. § 40.459).
On June 10, 2011, NRS 40.459(1)(c) was added to Nevada’s law by Assembly Bill 273, which limits the amount of a deficiency judgment a creditor may obtain after foreclosure where the right to obtain the deficiency was transferred from the original lender. NRS 40.459(1)(c) limits the amount of deficiency recoverable by successor creditors to the amount of consideration the successor creditor paid for the right to collect the deficiency. In Sandpointe, the Nevada Supreme Court ruled that Nevada’s new deficiency law, NRS 40.459(1)(c), is only available as a defense to a deficiency lawsuit when the underlying real property was foreclosed upon after the effective date of the statute, or June 10, 2011.
COURT HEARING TO ESTABLISH FAIR MARKET VALUE:
Before awarding a deficiency judgment, the court will hold a hearing to receive evidence from the lender and the borrowers concerning the fair market value of the property as of the date of foreclosure sale. The lender must give the borrower notice of the hearing 15 days prior to the hearing. The court will appoint an appraiser to appraise the property if the lender or borrowers make a request at least 10 days before the hearing date (Nev. Rev. Stat. § 40.457).
THE ONE ACTION RULE:
In some cases, the bank can ignore the lien of the debt on the property and sue in the Court on the mortgage note that the homeowner signed. This is an action on the debt and not a property foreclosure. These actions are never available where the creditor would be barred on any deficiency had the creditor simply foreclosed and even where there is a potential deficiency, these actions may still be barred unless they meet certain criterion. The purposes behind the One Action Rule and the deficiency-judgment statutes are to protect homeowners and prevent the banks from suing the homeowner and receiving a judgment and then foreclosing on the home, in effect double recovery.
The one action rule limits the creditors to a single action for debts related to a single property, that is to say, they cannot initiate both a foreclosure on the property and an action on the note and where there is the chance under the loans to do both, the creditor is directed to first realize against the security, compelling the creditor to first offset the debt with the property.
Where the creditor holds both the first and second title position loans and both were for purchase of the property, it prohibits the creditor from foreclosing on the first loan against the property and waiving the security and suing for the second loan on the promissory note—essentially prohibiting the creditor from taking two actions.
BANKRUPTCY AND DEFICIENCY JUDGMENTS:
Filing for bankruptcy to obtain relief from a deficiency judgment is possible. Under a Chapter 7 bankruptcy, all personal liability on the mortgage note is extinguished so that the bank cannot pursue you for any deficiency that may arise from a foreclosure sale.
HOW DEFICIENCY JUDGMENTS ARE COLLECTED:
A deficiency lawsuit is like a lawsuit to recover an unsecured debt, like credit card debt or medical bills. Before the foreclosure, your mortgage was a secured debt you owed your bank a certain amount of money and your home guaranteed repayment. If you failed to pay back your mortgage loan, the bank had the right to sell your home to recoup the debt. After foreclosure, you may still owe your bank some money (the deficiency), but the security (your house) is gone. The deficiency is now an unsecured debt.
If your lender sues you to recover the deficiency and wins, the court will issue a judgment ordering you to pay off the deficiency. If you ignore this court order, your lender can use the deficiency judgment to place liens on other property that you own, garnish your wages, or freeze your bank accounts. Please see our Debt Collection page for more information on how to protect your exempt property from collection.
WHAT TO DO IF YOU CANNOT PAY THE DEFICIENCY:
If you cannot afford to pay the deficiency and you want to avoid having your wages garnished or your accounts frozen, talk to your lender. See if they are willing to work out a repayment plan with you. Also, you may want to consider filing for bankruptcy. If you qualify for Chapter 7 bankruptcy, it could wipe out the deficiency debt, along with your other unsecured debts. Under a Chapter 13 bankruptcy, you may have to repay just a small portion of the deficiency.
HOW TO AVOID LIABILITY FOR A DEFICIENY:
If you are behind on your mortgage payments and you do not wish to keep your home, you should contact your mortgage servicer to find out if you are eligible for foreclosure alternatives, such as a short sale or deed-in-lieu of foreclosure.
Through a short sale, your lender approves the sale of your home for less than you owe on your mortgage. The difference between the sale price and the total debt amount is the deficiency. You must ask for a deficiency waiver as part of the short sale.
Through a deed-in-lieu of foreclosure, you sign your home over to your lender, and in exchange your lender foregoes foreclosure and releases you from your mortgage. The deficiency amount under a deed-in-lieu of foreclosure is the difference between the fair market value of the property and the total debt.
Whether you pursue a short sale or deed-in-lieu of foreclosure, you should ask your lender to agree in writing to release you from liability for any remaining debt. Please be aware, though, that there may be income tax consequences for cancelled debt. Please see our Tax Liabilitiy of Forgiven Mortgage Debt page for more information.
Tax Liability of Forgiven Mortgage Debt
Obligation to pay taxes on forgiven mortgage debt
Lenders sometimes cancel or forgive a person’s debt. While this relieves the debtor of an immediate financial stress, it often triggers a tax liability. Under the tax law, canceled debt is considered income to the debtor and is included as part of the debtor’s income. Not only does this impact how much tax is paid, but can reduce deductions that are limited based on adjusted gross income.
Is Cancellation of Debt Income Always Taxable?
Not always. There are some exceptions. The most common situations when cancellation of debt income is not taxable involve:
- Bankruptcy: Debts discharged through bankruptcy are not considered taxable income.
- Insolvency: If you are insolvent when the debt is cancelled, some or all of the cancelled debt may not be taxable to you.
- Certain farm debts: If you incurred the debt directly in operation of a farm, more than half your income from the prior three years was from farming, and the loan was owed to a person or agency regularly engaged in lending, your cancelled debt is generally not considered taxable income.
- Non-recourse loans: A non-recourse loan is a loan for which the lender’s only remedy in case of default is to repossess the property being financed or used as collateral. The lender cannot pursue you personally in case of default. Forgiveness of a non-recourse loan resulting from a foreclosure does not result in cancellation of debt income. However, it may result in other tax consequences.
- Gifts, bequests, devises, and inheritances: You do not have income from canceled debt if the debt is canceled as a gift, bequest, devise, or inheritance.
- Qualified principal residence indebtedness: This is the exception created by the Mortgage Debt Relief Act of 2007 and applied to most homeowners through December 31, 2013.
How Do I Know If I Was Insolvent?
You are insolvent when your total debts exceed the total fair market value of all of your assets. Assets include everything you own, e.g., your car, house, condominium, furniture, life insurance policies, stocks, other investments, or your pension and other retirement accounts.
How Should I Report Information Related to Insolvency?
Use Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness (and Section 1082 Basis Adjustment) to exclude canceled debt from income to the extent you were insolvent immediately before the cancellation.
Foreclosures and Repossessions:
If you do not make payments you owe on a loan secured by property, the lender may foreclose on the loan or repossess the property. The foreclosure or repossession is treated as a sale from which you may realize gain or loss. This is true even if you voluntarily return the property to the lender.
If the outstanding loan balance was more than the FMV of the property and the lender cancels all or part of the remaining loan balance, you also may realize ordinary income from the cancellation of debt. You must report this income on your tax return unless certain exceptions or exclusions apply.
Borrower’s Gain or Loss:
You figure and report gain or loss from a foreclosure or repossession in the same way as gain or loss from a sale. The gain is the difference between the amount realized and your adjusted basis in the transferred property (amount realized minus adjusted basis). The loss is the difference between your adjusted basis in the transferred property and the amount realized (adjusted basis minus amount realized).
Amount Realized and Ordinary Income on a Recourse Debt:
If you are personally liable for the debt, the amount realized on the foreclosure or repossession includes the smaller of:
- The outstanding debt immediately before the transfer reduced by any amount for which you remain personally liable immediately after the transfer; or
- The FMV of the transferred property.
The amount realized also includes any proceeds you received from the foreclosure sale. If the FMV of the transferred property is less than the total outstanding debt immediately before the transfer reduced by any amount for which you remain personally liable immediately after the transfer, the difference is ordinary income from the cancellation of debt. You must report this income on your return unless certain exceptions or exclusions apply.
Debt cancelled in a title 11 bankruptcy case is not included in your income. A title 11 bankruptcy case includes chapters 7,11, and 13, but only if the debtor is under the jurisdiction of the court and the cancellation of the debt is granted by the court or occurs as a result of a plan approved by the court.
How to Report the Bankruptcy Exclusion:
To show that your debt was canceled in a bankruptcy case and is excluded from income, attach Form 982 to your federal attach Form 982 to your federal income tax return and check the box on line 1a. Lines 1b through 1e do not apply to a cancellation that occurs in a title 11 bankruptcy case. Enter the total amount of debt canceled in your title 11 bankruptcy case on line 2. You must also reduce your tax attributes in Part 11 of Form 982.
Qualified Real Property Business Indebtedness:
You can elect to exclude canceled qualified real property business indebtedness from income. Qualified real property business indebtedness is debt (other than qualified farm debt) that meets all of the following conditions:
- It was incurred or assumed in connection with real property used in a trade or business;
- It is secured by that real property;
- It was incurred or assumed before 1993, after 1992 if the debt is either (i) qualified acquisition indebtedness, or (ii) debt incurred to refinance qualified real property business debt incurred or assumed before 1993; and
- It is debt to which you elect to apply these rules.
Residential rental property generally qualifies as real property used in a trade or business unless you also use the dwelling as a home.
Mortgage Forgiveness Debt Relief Act:
This was passed in December 2007 by Congress. It allowed taxpayers to exclude income from the discharge of debt on their principal residence. Debt reduced through mortgage restructuring, as well as mortgage debt forgiven in connection with a foreclosure, qualified for the relief.
This provision applied to debt forgiven in calendar years 2007 through 2013. Up to $2 million of forgiven debt was eligible for this exclusion ($1 million if married filing separately). The exclusion did not apply if the discharge was due to services performed for the lender or any other reason not directly related to a decline in the home’s value or the taxpayer’s financial condition.
Hypothetical Examples Regarding the Cancellation of Debt Income:
A homeowner has a house worth $200,000 but a mortgage debt of $350,000. The owner short sells the home for $200,000 and the bank forgives the remaining debt of $150,000. This forgiven debt is initially treated as taxable income by the IRS.
Now the principles of the insolvency clause can be applied. First, add up all debts and liabilities as well as your assets. The IRS expects you to list the mortgage debt as a liability and the fair market value of the house as an asset. If your total assets amount to $500,000 and your liabilities are $650,000, you have a $150,000 insolvency.
In this scenario, the insolvency amount of $150,000 matches the forgiven mortgage debt of $150,000 which exempts the homeowner from paying taxes on the forgiven debt. Every dollar of the forgiven debt is protected up to the insolvency amount. So if the insolvency in this scenario was $100,000, the homeowner would still pay income tax on the remaining $50,000 of the forgiven debt.
Mobile Home Evictions
RENTING SPACE vs. RENTING MOBILE HOME
If you own your mobile home but rent the space it sits on, and you are facing eviction, this section pertains to you. HOWEVER, if you are the tenant of a mobile home (you do not own the mobile home) then this information does not pertain to you. See Tenant's Rights and Procedures.
The landlord must provide you Notice explaining why the landlord wants to evict you before filing an eviction in court against you. The landlord must allow the Notice time period to expire before proceeding with a Summons and Complaint. You can use this time to resolve the issue. If the issue is resolved, your landlord should not proceed with eviction. If the issue is not resolved, the landlord may pursue an eviction based on the allegations in the Notice. A Notice may be personally served at your home in presence of witness OR the landlord can leave a copy of the Notice with a person of suitable age and discretion. The landlord must follow up with a mailed copy. If you or anyone of suitable age is not home, the landlord can post a copy in a conspicuous place and follow up with mailing another copy via US mail. Just because a notice says that you have to be out in 3 or 10 days does not mean that your landlord can lock you out that amount of time. Your landlord still has to file a court action against you, and you cannot be evicted until you have had a chance to explain your case in front of a judge.
Types of Eviction Notices
There are various types of notices. Each notice has different time periods within which the issue can be resolved. If the issue is not resolved, the landlord must wait for the notice period to expire before serving a Summons and Complaint.
- 3-DAY NUISANCE- you should only receive a 3-Day Nuisance Notice if you are accused of:
- discharging a weapon
- illegal drug manufacture or use
- Elder OR child molestation/abuse
- property damage from vandalism
- operating a motor vehicle under influence of alcohol
- 5-DAY NUISANCE- You will receive this notice if the landlord is accusing you of any other ‘nuisance’ activity. Under the law a ‘Nuisance’ is defined as an ongoing condition which constitutes an unreasonable obstruction to the free use of property and causes injury and damage to other tenants or adjacent buildings
- 10- DAY FAILURE TO PAY RENT /UTILITY or REASONABLE SERVICE FEE - There are few defenses to failure to pay rent. If you owe space rent, you can offer the unpaid amount within the 10 day period. If the landlord accepts the rent, you should obtain receipts to prove you made payment. If you offer the rent owed, and the landlord refuses, you may have a defense to a subsequent eviction.
- 180- DAY PARK CLOSING NOTICE
- 45-DAY ANY OTHER CAUSE NOTICE
Summons and Complaint
Under Nevada law, an owner of a mobile home who rents space must be evicted by using the ‘formal’ eviction process. The Formal eviction process requires service of a Notice (see above) and service of a Summons and Complaint. The tenant has the right to file an Answer. Even if you do not file an Answer within the required time period (see below), you will still have an opportunity to appear in court. A Summons and Complaint must be personally served, meaning it must be delivered to you in person. It may be delivered by a constable or process server. The Complaint should state with ‘specificity’ the allegations supporting the eviction, meaning the complaint should describe in detail the basis for the eviction.
File an Answer in Response to an Eviction Action
An answer is your response to the allegations. Typically, you have 20 days to file an answer, unless the landlord has an order shortening time. The twenty days begin the day after you were served. The deadline is 20 consecutive days, meaning weekends and holidays are included. For example, if you are served on July 1st, you must file your Answer by no later than July 21st. You should explain all your defenses in your Answer. Possible defenses may include:
- General denial of allegations
- Allegations do not constitute a nuisance
- Lease violation has been cured
- Nuisance allegation has been abated
- You paid the rent, or, offered to pay the rent in full but landlord refused
- Defective notice (not served notice or notice lacked specificity)
This list in NOT all inclusive. You may need to seek legal assistance to understand what defenses are available to you.
Order Shortening Time
You may have also been served with an “Ex Parte Application and Affidavit in support of an Order Shortening Time to Answer”. This is a request to the judge to shorten the amount of time you have to file an Answer. You should review the Order Shortening Time to see how long you have to file an Answer. You may only have ten days to file an answer. However, under Nevada law you must have no less than ten days to file an Answer.
"Show Cause" Hearing
Show Cause Hearings are small trials, and you should prepare for your hearing as if it were a trial.
If your paperwork includes an Order to Show Cause this means the judge has scheduled a hearing to decide whether a Temporary Writ of Restitution should be granted. A Temporary Writ of Restitution gives the landlord possession of the mobile home during the case. Prior to the hearing, you can file a Statement of why a temporary writ should not be issued. At the hearing, the court will allow both parties to speak and present evidence. The court should determine if the landlord has shown (by competent, relevant, and material evidence) the existence of sufficient facts to establish, at least at first appearance, the clear right to immediate possession of the property.
If the Court determines that a Temporary Writ of Restitution should issue, the Court must require the landlord to post a bond in the amount to be set by the court. The Court determines the amount of the bond based on the Tenant’s probable loss from being wrongfully evicted pending trial. The constable will execute the Writ and require you to vacate the property but the case will proceed to trial where the landlord will attempt to obtain a money judgment and a permanent writ of restitution. If the court denies the temporary writ of restitution, you will be permitted to remain in the mobile home and the case will proceed to trial.
Preparing for Trial
You have the right to discovery in a Formal Eviction proceeding. Discovery is the procedure where parties to a lawsuit exchange information and documents in an effort to "discover" facts relevant to the case and identify potential witnesses and evidence. Discovery is governed by the Rules of Civil Procedure. Discovery devices include depositions, interrogatories, requests for admissions, requests for production of documents, and requests for inspection.
Pursuant to Las Vegas Justice Court Rules of Civil Procedure, within 30 days of the filing the Answer, the parties must exchange all available documents which are contemplated to be used in support of their case. The parties must also exchange a written list of persons and/or witnesses, known to have knowledge of any facts relevant to the allegations. The list should include the person’s name, address, and a general description of the subject matter of their knowledge. This information is known as the ‘initial disclosures’. You should request the initial disclosures from the landlord or landlord’s attorney. Remember to limit your conversation since anything you say to the landlord’s attorney may be used to the landlords advantage. You may want to make the request in writing. You should review this information to assess the evidence against you. This information will be helpful to you in preparing for your trial. Remember, both parties are entitled to this information. So landlord may request the same information from you.
Be on time. Be sure to consider traffic, court security, and other possible delays. You do not want to be late to your hearing. You should also dress appropriately. Attire such as shorts, tank tops, halter-tops, etc. may not be permitted in the courtroom. At trial, each party will be able to present the facts of their case by calling witnesses and introducing evidence. You have to inform the court of your side of the story through witnesses. The landlord will present their witnesses first. The landlord’s attorney will ask questions of their own witness. Afterwards, you will be given the opportunity to cross exam that witness. You should prepare your questions in advance. After the landlord has presented their last witness, you can present your witnesses. Similarly, after you ask questions of your witness, the landlord’s attorney will be allowed to cross exam your witness.
After all evidence has been presented, the judge will decide whether the landlord has presented enough evidence to make it ‘more likely than not’ that the landlord's version of the facts is true, andwhether those facts are enough to justify evicting you.
If the landlord wins at trial, the judgment may award a permanent Writ of restitution. A permanent writ of restitution is the legal right to take possession of the property. The landlord could also be awarded an Order for fees which is an order requiring you to pay money for any damage to the property, unpaid rent, and/or court and attorney’s fees.
If you have a writ of restitution based on unpaid rent and your lease has not expired, you may pay the judgment and save your tenancy if you pay into the court the total amount of the judgment within 5 days.