TENANTS WHO VACATE LEAVING PROPERTY DAMAGE (LANDLORD'S REMEDIES AND CONSIDERATIONS) by Peter Mark Heintzelman, Esq. 1999copyright, all rights reserved Few things bother Massachusetts landlords more than a tenant who vacates rental premises leaving property damages. Holes in walls, left trash/debris, damaged or missing doors, appliances, and other structural damages, leave a landlord with no apparent remedy other than to fix the property damages and sue the tenant to recover monetary damages. In the heat of discovering property damages, landlords need to keep a cook head and consider what courses of action should be taken. Unexpected consequences of pursuing an offending tenant need to be considered. This article is not mean to be taken as legal advice nor as a substitute for legal advice, and you are strongly urged to engage competent legal counsel in such matters discussed in this article. 1) Photographs: Upon discovery of property damages, photographs are a landlord's best friend. Photographs of damages should be taken before any repairs are conducted, to be available as evidence later, should you elect to pursue your tenants for damages. Photographs of the repairs once completed are also valuable evidentiary ammunition for the landlord in court, to help establish the value and reasonableness of the expenses the landlord incurred, for which she seeks reimbursement from the offending tenants. Photographs of the move-in condition of the premises are priceless for landlords in many court hearings, including evictions and actions to recover property damages. Both landlords and tenants alike are wise to invest in photographic documentation of the move-in and move-out stages of a tenancy, to protect their respective interests. Normally, photographic evidence is admissible in Massachusetts court actions between landlords and tenants, to support the case in question, so long as the photographs are relevant and a fair and accurate depiction of the conditions described by the trial witness. Photographic evidence is highly probative in many trial circumstances, and "speak a thousand words" which might not so easily be described by a nervous trial witness. 2. Insurance Coverages: Many landlords do not seem to realize that their insurance may cover tenant-caused property damages. I've seen many clients recover funds from their insurers for the tenant's vandalism to the premises. You've paid premiums all these years, for what, if not to make a claim for vandalism, if the circumstances warrant? Some landlords express concern as to the consequences of making such insurance claims, for fear that their premiums may increase, or their coverage be cancelled; a consideration to discuss with your insurance agent and legal counsel. Insurance coverages frequently contain a deductible feature, meaning that you cannot recover for a certain amount of the damages you've suffered. For example, if you have a $500 deductible, the first $500 of damages you suffer, will not be reimbursed to you by your insurer. You can often adjust your current deductible, check with your insurance agent for more information. So, if your total damages caused by your tenant are not much more than your deductible, you may elect not to file a claim; every case is different, and warrants consideration of the appropriate courses of aaction, and consequences; don't forget about the consequences! If indeed you intend to file an insurance claim, provide the insurance company promptly with written notice of the loss and your claim. One of your required duties under most insurance policies, is to promptly notify your insurer of a loss, so the insurer will not be prejudiced to confirm the loss in a timely fashion, and investigate the damages, before you repair or change the "loss-date" condition, and investigate who may be liable to reimburse the insurance company for their payment to the landlord, should it be determined the damages are covered by your insurance policy. So, be careful to leave things "as is," until the insurance adjuster shows up to take her own photographs and record the evidence of damages. Subrogation, a big word, is in need of some description for a landlord considering making an insurance claim for property damages. Insurance companies don't particularly like paying landlord insurance claims for property damages, without looking to pursue the responsible party for reimbursement. Most insurance policies state that, in the event the insurance company pays a landlord for damages, the insurance company takes over the legal rights to pursue the legally responsible party (the tenant, in this case) for the damages; this insurance company's rights are known as rights of subrogation. The insurance company may or may not pursue the tenant for reimbursement; its typically a question of economics: is it worth it for the insurer to hire lawyers to chase down an offending tenant, depends on factors such as whether they have a good liability case (i.e., can they prove the tenant is responsible for the damages), and whether they would even stand a chance of recovering monies from a tenant, who may "judgment proof." In the event, however, the insurer elects to pay your claim and then subrogates your rights, by suing the offending tenant for reimbursement, you may be in for a few surprises. For example, the insurer has the right to compel your cooperation as a witness in their case. You may have to attend a deposition, answer questions, produce documents, and appear as a trial witness, to confront that tenant you had thought had left your life for good. Welcome back! Secondly, when tenants get sued, by you or your insurer, the tenant may consider suing you back! Back for what, you ask? For all those same kinds of claims landlords often face from tenants in eviction cases: breach of warranty of habitability, interference with quiet enjoyment, electric cross-metering, security deposit law violations, to mention a few. You, landlord, may then be facing exposure to the tenant on these counterclaims, and could expose YOU to liability to your tenants, should they prove a case against you to a court of law (note: many tenant claims against landlords are not covered by insurance). Making a claim with your insurance company, then, may be like shooting yourself in the foot! So, your potential exposure to the tenant should be seriously considered by the landlord before pursuing an insurance claim or personally pursuing your vacated tenant for property damages. 3. Pursuing The Tenant Yourself For Property Damages: Many landlords, instead of filing an insurance claim for tenant-caused damages, may elect to chase the tenant down themselves in court for reimbursement of damages to an apartment. In Massachusetts, county district courts and housing courts have small claims court sessions, where a landlord, with our without a lawyer, may appear for trial and litigate a property damage claim against a tenant. Small claims cases have a juridictional limit of $2,000 for damages; meaning that the court could only award you in this kind of a property damage case, no more than $2,000 in damages. The cases have small filing fees, and relatively quick trial dates, currently heard by a clerk/magistrate, not by the judge. Rules of evidence are often more relaxed than in a regular civil case in front of a judge. Appeals from a losing case are basically not available to a plainiff-landlord; but normally such a small dollar case may not be cost-efficiency anyway to warrant an appeal. If you have suffered property damages in excess of $2,000, and you seek to pursue such damages, you may then want to proceed not in small claims court, but in a regular civil session, in county district courts or the housing court. General civil cases have more stringent evidentiary and other procedural complexities that cause most landlords to realize the greater importance of hiring legal counsel for such cases. In the absence of a written tenancy agreement signed by the offending tenant, that indicates their contractual liability to you for reimbursement of attorney fees in these kinds of cases, its very unlikely you will recover a judgment which includes reimbursement of your attorney fees. Sometimes attorney fees could be more than the amount of damages you experienced, so be careful to clearly discuss this topic with your attorney before proceeding to litigation. You can now see why some landlords may elect to sue a tenant in small claims court, even if their losses exceed $2,000, merely because of the cost of nonrecoverable attorney fees to pursue a regular civil case. Regardless of where you end up suing your former tenant for property damages, remember that tenants often sue back in such cases, for counterclaims typically arising out of the tenancy, like those referred to in section 2, above, dealing with insurance coverages. The small claims statute, at Mass. Gen. Laws, Ch. 218, Sections 21-25, include provisions which do not limit tenant counterclaims to the $2,000 damage cap, when a tenant's counterclaims arise out of violations by the landlord of punitive statutes, like Mass. Gen. Laws, Chapter 186, sections 14, 15B, and Chapter 93A, section 9, just to mention a few, which allow double or treble damages, and may also allow a tenant to recover attorney fees against you, should they prevail on such counterclaims! So, once again, be careful to evaluate what counterclaims a tenant may bring against you, should you seek to sue them for property damages, or anything else, for that matter. Do you have risks of being held liable for damages to the tenants? Who has more to lose; you or your tenant? And what about the question of whether you will ever collect any money from the tenant, if you "win" at trial, and get a piece of paper that lets you try to collect the monies due from a tenant who, because of life's expenses, may be found "judgment proof." If you do go to trial, be prepared and organized. Bring all your photographs, records of bills/payments/expenses for repairs and materials, bring witnesesses and anything else you may have to support your case. Do not expect to be allowed by the court to submit evidence after the trial. If your tenancy agreement provides any langugage that reflects the fact that the move-in conditions of the apartment were acknowledged by the tenant to be in good share, introduce that at time of trial. If you obtained from the tenant a signed security deposit form "written statement of the condition of the premises", described (in painfully exacting detail) in the security deposit law, at Mass. Gen. Laws, Ch. 186, section 15B (a great form for a landlord to use whether or not they collect a security deposit), introduce that as well at the time of trial; it's evidence of the tenant's acknowledgement of the apartment's conditions at the commencement of the tenancy. Tenants often defend property damage claims by exclaiming, "The damaged conditions where there before I moved in, your Honor!" Be prepared at trial, to respond appropriately to any tenant counterclaims. Leaving unanswered tenant's counterclaims at trial, may result in damages entering against the landlord. Remember, many courts will offer a mediation/settlement opportunity before going to trial, and for the reasons stated above (and more), and the risks of going to trial (remembering that when two parties go to trial, someone is typically making an unforseen big mistake), it is generally in both parties' best interest to settle. |
