Should I seek restitution?

Colin McCarthy
Colin McCarthy | 4 min. read
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Published on May 26, 2011

Unfortunately, sometimes tenant-related situations happen that require you to consider restitution: a tenant submits a bad check; causes significant damage and destruction to your property; moves out on the sly; or abandons his possessions on your property, leaving you to clean up the mess. None of these situations are pleasant, particularly because they generally leave you at best out some cash and, even worse, with a mess to clean up in your tenants wake (which, of course, may require even more expenditure). Of course you want to be paid the money you’re owed, but is it always worth pursuing such matters? Let’s take a look at some common scenarios.

Small Claims Court
Small claims court may be a good option in certain circumstances (note that some districts have a specific landlord-tenant court). Small claims complaints may be viable if your tenant does not pay rent, willfully damages or causes destruction to your property, or violates rules and regulations repeatedly after written notice to comply. Generally speaking, small claims courts handle matters under a certain dollar amount—usually $5,000 or less. All of the specifics vary on according to state, so be sure to check the specifics in your area.

In most states, you will have to submit a small fee to file a complaint (generally around $25). If the case goes to court, witnesses may be required to appear in person, and you should be prepared to provide relevant documentation, such as receipts, leases, estimates, bills, check copies, and photographs. Depending upon your complaint, a successful verdict may either result in the right to have the tenant removed from the property or to receive due payment from the tenant.

Selling a Tenant’s Property
Let’s say a tenant has left you high and dry, discarding his belongings on your property. Obviously, you must remove his possessions from the unit before renting it out to another tenant. Laws vary significantly from state to state, but in some states you may be able to file a writ of restitution, which allows you to have the tenant’s abandoned belongings removed from the unit and placed into storage, either at another location on your property or off-site. Subject to varying rules and regulations (again on a state by state basis), some of these abandoned possessions may ultimately be eligible for sale, allowing you to recoup (but not exceed) the costs due to you for storage and removal.

This process can be rather complex and requires adherence to specific laws as they pertain to tenant notification, removal of property, storage regulations, items that are and are not eligible for sale, and how proceeds of the sale must be handled. Make sure to carefully check state laws and to follow them precisely.

Filing Bad Check Complaints
Take heart. In this recent blog post, a Florida landlord explains how the law finally caught up with a flaky tenant two years after he fled his rental unit, leaving a lot of damage and a bad check in his wake. While this landlord didn’t take his tenant to court, he did file paperwork for a bad check with the state attorney’s office. When the tenant was pulled over for a traffic violation some time later, the charge showed up on his paperwork and the tenant was forced to pay up.

If your state offers a similar program (and many do), this is one way to pursue payments due to you. The upside to it is that the process costs you no more than the time required to fill out the necessary forms. The downside is that there are no guarantees such claims will ultimately catch up with your tenant—and, if they do, it may be at some point much later down the line.

While you can’t guard against everything, thorough screenings and credit checks are one of the best ways to ensure you don’t find yourself in a situation where restitution becomes necessary. If restitution does become necessary, be sure you have a thorough understanding of the steps required of you in your state—the guidance of an attorney may be necessary.

Read more on Legal Considerations
Colin McCarthy

Colin G. McCarthy is a partner in the business litigation, products liability, and insurance practice groups at Robinson & Wood in San Jose, California.

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