The COVID-19 emergency and eviction moratorium have left a large number of [California] housing providers with unpaid rent—often in the tens of thousands of dollars. If you are among those who find themselves in this situation, what can you do to recover this unpaid rent?
Step One: Talk to Your Renter First
Your first step in addressing the problem is to try working out an amicable solution with your renter. Failing that, you can turn to Small Claims Court. If the debt is due to COVID-19 hardship, there is currently no limit to the dollar amount you may seek to recover.
Send a Demand Letter
Before going to Small Claims Court, you need to send a demand letter to the renter (the “defendant”) via certified mail with return receipt requested. Keep a copy with the receipt for the lawsuit—proof that the defendant received your demand letter. Before pursuing someone in Small Claims Court, you must demonstrate that you have exhausted all other options for
getting your money back. This includes sending a last request for payment, often referred to as a letter before action. You don’t need an attorney for this; you can write the letter yourself. Include your full name, address, and contact details on the letter. This gives the recipient a way to contact you to arrange a solution.
Put this contact information in the top right corner of the letter. Attach all previous correspondence, including emails. Acknowledge the attached documents in the letter: “I enclose copies of all communication sent to you between (date) and (date). I have given you reasonable opportunity to respond to this communication and resolve my complaint, but you have failed to do so.” Outline your plans to the renter: “You have left me with no alternative than to seek legal redress through Small Claims Court.” Provide your renter with a time limit to respond (a minimum 14 days). Keep the message simple and direct. For example: “Unless this matter is resolved to my satisfaction within 14 days from the date of this letter, I will begin legal proceedings without further notice. The cost of these proceedings will be added to my claim.” Again, make sure to send the letter by certified mail with return receipt.
About Small Claims Court
Small Claims Court is the court where COVID-19 unpaid rent claims can be resolved quickly and inexpensively. The rules are simplified, the hearing is informal, and attorneys are not allowed. The person who files the claim is called the plaintiff. The person against whom the claim is filed against is called the defendant. They are also called claimants or parties. You need not be a US citizen to file or defend a case in Small Claims Court. The filing fee depends on the amount of the claim, but usually less than $100.
The previous claim limit of $7,500 has been lifted for non-payment of rent claims in favor of a no-limit claim amount. It’s important to keep in mind that while a strong, well-documented case will very likely yield a favorable ruling, actually getting your money back is another matter.
If you’ve requested the unpaid rent in writing previously, you may want to send a 3-day notice. If you do, you must have written proof that you’ve asked the tenant to pay. In your demand letter, you may want to state that you are giving the renter X number of days to pay up or you will send a 3-day notice and will proceed with filing in Small Claims Court.
Filing a Claim
[Go to your County Clerk’s office and tell them you want to file a Small Claims case.] In order to file your case in Small Claims Court, you need to fill out Form SC-100, found online at https://form-sc-100.pdffiller.com/. Carefully read all the instructions at the bottom of the form. In addition to this form, you case will have a far greater chance of success if you have a full complement of attachments, including:
- A copy of the tenant’s lease/rental agreement, and addenda that have been added since inception of the rental relationship and any other legal documents that show the chronology of the tenancy.
- Copies of any notices you served the renter, as well as photos, if any, of notices you posted on the door.
- Email and text communications between you and the renter should be printed out. If you’ve communicated with the renter in person or by phone, record the date, time, and substance of the conversation you had with the renter.
- Copies of any checks returned for insufficient funds and receipts for any repairs you made at your own expense in and around the rental unit. If repairs were requested by the renter but not made, document the date of the request, the nature of the repairs the renter requested, and why the repair request was denied.
- Since you are first required to demand payment from the defendant before going to court, be ready to tell the judge how you asked the tenant for payment of back rent—in person, by phone, in writing, via email, or all of the above.
Collecting on Your Judgment: The Writ of Execution
If you win your case in Small Claims Court, and the other party is ordered to pay you money, then you are the “judgment creditor,” entitled to collect that amount from the losing party, the “judgment debtor.” A Levy is unnecessary for defendants who pay voluntarily. However, some defendants ignore the judgment against them, thereby requiring you to enforce it. To collect the judgment, you have to take certain legal steps yourself.
First, you must locate the debtor. Then you must locate their assets, if any. The court can assist you in certain ways to collect the amount owed. An order of examination can be a valuable tool in learning about your debtor. This is a court proceeding where the debtor is brought in and questioned about their income and property for the sake of judgment collection. Additionally, you can subpoena third parties for information.
Once you’ve located the debtor’s assets, property, or income, your next step is to obtain a writ of execution, a court order that authorizes the sheriff to enforce the judgment. You have several options depending on the monetary damages. For some judgments, the judgment creditor can garnish the judgment debtor’s wages, levy a bank account, or even have a lien placed on their property. A thorough discussion of this aspect of the collection process is beyond the scope of this article, but there is a wealth of information on the Internet. Here’s a good place to start: https://dca.ca.gov/publications/small_claims/collect.shtml.
Reprinted with permission of the Small Property Owners of San Francisco Institute (SPOSFI) News. For more information on becoming a member of SPOSFI or to send a tax-deductible donation, please visit their website at www.smallprop.org or call (415) 647-2419.