Suing a Former Tenant for Unpaid Rent

What landlords should know before suing a tenant

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Landlords sometimes go to small claims court to sue former tenants–those who have already moved out–for unpaid rent, when the security deposit isn't sufficient to cover the amount. These cases arise when:

  • the tenancy is month-to-month, and the tenant has left without giving the required 30 days' notice, and
  • the tenant has a lease, but has broken it by leaving before its term is up.

Take care of your reputation. If you are a landlord with many rental units and regularly use a local small claims court, make particularly sure that every case you bring is a good one. You do not want to lose your credibility with the court in the future by ever appearing to be unfair or poorly prepared.

Unpaid Rent and Month-To-Month Tenants

Month-to-month tenants must give at least the legally required number of days' notice of their intent to move out, and must pay rent during those days. For example, if the notice period is 30 days, and the landlord receives notice on the 20th, that tenancy will end 30 days later. If the tenant pays rent on the first of the month, he or she will owe prorated rent for 20 days of the next month. If the tenant doesn't pay and simply moves out, the landlord could sue for those 20 days' worth of rent, assuming the security deposit is too small or already depleted due to needed repairs or cleaning.

Landlords in these situations rarely find it sensible to go to court over a month's (or less) rent, unless their total losses are augmented by having to deal with major damage as well. If you are a landlord and find yourself in this position, follow the advice above for preparing a case when you sue over damage or uncleanliness. You'll need to also prove that the rent was not paid, by showing that your rent ledger, for example, does not include an entry for that month.

When the Tenant Has No Defense

Often the tenant has moved away and doesn't bother to show up in court. If this happens, the landlord briefly states his or her case and, assuming it's credible, will win by default. Sometimes the tenant does show up but presents no real defense (often hoping only to be allowed to pay the judgment in installments). Again, the landlord should easily prevail.

The landlord should bring the lease or rental agreement to court and simply state the time periods for which rent is due but unpaid. Nothing else is required unless the tenant presents a defense, as discussed below.

Unpaid Rent and Tenants with Leases

Tenants who leave before the expiration of a fixed-term lease (whether or not they notify the landlord that they're leaving) and refuse to pay the remainder of the rent due under the lease are said to have "broken the lease." This means the tenant is liable for the rent for the entire lease term (except where the landlord breaches an important lease provision first). However, the tenant's responsibility for paying all rent still due under the lease when he or she leaves early is limited in most states by the landlord's duty to "mitigate damages." Stated in plain English, the landlord has a legal duty to try to find a new tenant as soon as reasonably possible to limit the financial loss.

What all this adds up to is that a landlord whose tenant breaks a lease with no good reason is entitled to:

  • the remaining rent due under the lease, minus
  • any portion of that amount that the landlord can reasonably obtain by rerenting the unit, plus
  • any reasonable advertising expenses incurred in finding a new tenant, plus
  • charges for necessary repair and cleaning after the tenant moves out.

A landlord can deduct the total cost of these items from the tenant's security deposit (see "Security Deposit Cases," above) and sue for the remainder in small claims court. 

Tenant's Defenses to Unpaid Rent

Lease-breaking tenants may have a defense to a landlord's suit for unpaid rent–rent the landlord would have collected had the tenant stayed in the rental. Landlords file these lawsuits when there's considerable time left on the lease, and their reasonable efforts, if legally required (see the section above), have failed to produce a new tenant (perhaps because the market is soft, or the rental just isn't that attractive). As explained above, landlords usually don't bother filing suit unless they can find the tenant, have some reason to think that they can actually collect if they win, and are confident that the tenant has no legal defense for failing to stay through the end of the lease.

The most common defense to breaking a lease is the tenant's claim that the rental was uninhabitable under state law. Landlords must offer and maintain "fit and habitable" premises, and if they fail to do so, their failure justifies the tenant's lease-breaking. To successfully raise this defense, the tenants must prove that they did not cause the problem themselves, the defects were serious enough to threaten health or safety or constituted a lack of basic services, and the landlord had been given a reasonable amount of time to fix the problem.

Tenants Suing Cotenants for Unpaid Rent

When two or more people rent property together and all sign the same rental agreement or lease, they are cotenants. Each cotenant shares the same rights and responsibilities under the lease or rental agreement. For example, all cotenants, regardless of agreements they make among themselves, are liable to the landlord for the entire amount of the rent. But being cotenants together does not establish one cotenant's legal right to sue the other cotenant for his share of the rent. In order to do that, the cotenants need to have an agreement between them that specifies how much each will contribute to the total rent. A cotenant who doesn't pay his share, as specified in the agreement, may be sued by the other cotenant(s) in small claims court.

EXAMPLE: James and Helen sign a month-to-month rental agreement for an $800 apartment. They agree between themselves to each pay half of the rent. After three months, James moves out without notifying Helen or the owner, Laura. As one of the two cotenants, Helen is still legally obligated to pay all the rent and may be able to recover James's share by suing him in small claims court. In the same way, Laura, the owner, may serve Helen, the tenant, with a notice to pay the whole rent or leave (or face eviction).

Rent Control Cases

In the cities in New York and California that have rent control laws, a landlord who charges illegally high rent can be sued by the tenant not only for the excess rent charged, but for a punitive amount as well (often several times the overcharge).


 

by: Ralph Warner

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