Suing a Landlord in 7 Steps
Gonzales and her husband David (not their real names), thought the Fairfax, Va. three-bedroom, two-bath townhome outside Washington, D.C. was too good to be true when they found it on Craigslist for $1,850 per month in rent.
"It was cheaper than a lot of other homes," said Maria Gonzales, "and bigger."
With their two children in tow, the former New York couple were moving back to the states after a stint working abroad in Mexico. The home was attractive to them because of the decent-size backyard, accessible only from the walkout basement.
"When we toured the house, the landlord didn't show us the basement. She had the door to the basement locked, saying she was moving most of her stuff out, but that she would still need to store some things in the basement, and that she'd deduct from the rent if we agreed to rent the house like that," says Gonzales, who added that the landlord gave them the impression that they would still have full use of the basement.
The couple, who had only seen pictures of the basement (from the Craigslist ad), entered a lease agreement thinking that some of the landlord's items would just be left in a storage room or basement corner. What they didn't realize was that she was interested in storing herself in the basement, too.
Tenant-landlord conflicts are nothing new, but they might be on the rise as the housing crisis creates "accidental landlords" out of homeowners who can't sell their property, keep up with their mortgage payments, or who simply want to capitalize on a growing demand for rentals, says Robert J. Duffet, the real estate attorney who represented the Gonzales family. Issues often boil down to a tenant who doesn't fully understand the terms of the lease.
"There is a huge difference of renting property from an established landlord with an apartment building and and renting a whole house, basement or attic from smaller landlords, or individual homeowners renting out the house they used to live in," says Duffet. Those are generally where a lot of issues go wrong and it's just a matter of educating the tenant and landlord.
For example, he says, "A lot of smaller landlords don't know how to do credit checks and a lot of tenants are willing to live in places that aren't legal." Before you enter a lease you should know: If there's a homeowners association, does it even allow renters? Does a basement apartment have an egress window? Is the property even properly zoned for tenants, versus a roommate situation?
Not knowing the answers can cause problems, he says, but before you attempt to sue your landlord, there are some steps you should take.
"Suing should not be you knee-jerk reaction," says Duffet. "No one really wants to go to court. Most do try to work it out." But even if you do go to court, you'll need to properly document the steps you took.
1. Be informal and polite. "Start with a phone call or an e-mail depending on the seriousness of the issue and what the practice has been with contacting your landlord," says Duffet, a landlord himself who recently had an A/C issue with a tenant. "If the air conditioning isn't working, call me so that I can deal with it right away."
2. Follow lease procedure. If the casual approach doesn't work, then follow up with the method of contact or notification written into your lease agreement. For example, it might say that all complaints should be sent in writing via certified mail and that a response would be given within a certain number of days.
3. Pay rent anyway. If you're not getting the response you want, you still need to pay your rent. "When a tenant withholds rent it just makes things worse," says Duffet. Not only that, in most states, you can't withhold rent without a court order.
4. Talk to an expert. If you're still not getting a response, contact a tenant association or a housing mediator who can try to help the parties work things out. Typically these services are free.
5. Consider small-claims court. If you have to go to court, try to use small-claims court if your case involves a smaller dollar amount, such as less than $5,000. (Every state sets a maximum dollar amount allowed on small claims, so consult your experts.) Lawyers are not allowed in small-claims court, which can be a good thing. "With a $2,000 case, such as the return of a security deposit, by time you pay a lawyer you still don't feel like you win," says Duffet, "even if you do."
6. Get organized. If you decide to go to court, assemble your evidence. Create a presentation folder with all of it, including any photographs, organized so that the judge can easily and quickly understand which law the landlord violated, says Larry Cook, author of "Recover Your Security Deposit -- Defeat Your Landlord in Small Claims Court." (His website has a step-by-step action plan on how to prepare a proper presentation folder for small claims court).
7. Argue state law first. Tell the judge exactly which laws the landlord violated, and back that up with your evidence. When someone only has two or three minutes to present a case in small-claims court, it may not be enough time for the judge to get a full understanding of your case. Which is why I suggest to argue law first, deceit second.
With the help of attorneys, the Gonzales' settled their tenant-landlord dispute out of court. "After some stressful negotiations among the lawyers, my ex-landlord finally signed the addendum releasing us from this nightmare, [but] she is furious we did not comply with her last-minute demands," Maria Gonzales says. Those included the couple paying half of the next month's rent (even though they would already have vacated), replacing all the carpets, and cleaning the chimney -- even though the Gonzaleses only occupied the home for less than a month and had not even moved in all of their furniture.