Have you ever been sued by your tenant because you did not return their entire security deposit? Has your tenant ever left your building and destroyed your unit? If the answer is yes to either of these questions, then it would be beneficial for you to learn more about small claims and the process.
First, as a landlord, before you rent to a tenant make sure that you do a pre-rental walk-through and have your tenant sign the Move- In / Move-Out Checklist [AOA Form 131] checking off the form that everything is in good condition. I would suggest that you also take pictures so that you have backup evidence of the condition of the property when you rented it to the defendant. In the same regard, once your tenant vacates, you need to do an inspection and take pictures of the entire rental unit.
If you have been sued by your tenant in small claims for failure to return their security deposit, you need to act proactively. If the tenant left owing you rent or damaged the property and they sue you in small claims, you need to file a DEFENDANT’S CLAIM. Essentially, this is a form that you get from the clerk’s office and you have to file it and serve it on the plaintiff or the person who is suing you. On the form, make sure that you properly itemize all rent and or damages that the tenant owes you for. By filing a defendant’s claim, you are technically cross-complaining in the small claims case and stating that you don’t owe the tenant any money rather …they owe you money!! This really helps because it detracts from a judge only thinking that you didn’t return a deposit.
Judge Pro Temp and Commissioners
I always advise my clients to never stipulate to a judge pro temp. A judge pro temp is a regular attorney who volunteers for the day to sit in the courtroom. This attorney will more than likely know nothing about the law regarding your specific case; rather they will base their decision on what they think is fair and usually that errs on the tenant’s side. As such, I would advise you not to sign the form the bailiff gives you to agree to have a judge pro temp hear your case. Further, in many courts I would also not stipulate to the commissioner to hear the case either – especially in Los Angeles courts. L.A. commissioners have a tendency to be very liberal minded and pro tenant. Your best bet is to hold out to have a real judge hear your case. Make sure to bring with you the security deposit disposition form you mailed to the tenant within 21 days from the day they vacated the property.
Be prepared for court. There is nothing that makes a judge more furious than having someone rustle a bunch of papers and look for things when you are in his court. Normally, the judge only allows about five minutes per case. That means that you will get about 2-3 minutes to present your side. Be precise and succinct and make a draft of what you want to say.
Try to be impartial and do not allow any personal animosity about your tenant to show with the judge. You want to limit your discussion to explaining why you don’t owe the tenant any money so you need to show receipts of work done and pictures of the damage to the premises and proof of repairs with invoices. After you have explained why you don’t owe the tenant anything, switch gears and tell the judge that, in fact, the tenant owes you money either for rent that is unpaid or for damages above and beyond the amount of the security deposit that you had with the tenant.
Appeal the Ruling
The judge almost always will take the matter under submission and you will get a ruling in the mail. If the judge has ruled against you, you can always file a small claims appeal. At that point, you can hire an attorney. Our office routinely files small claims appeals and many times we get the judgment overturned or the award lowered. At the appeal stage, you can be represented entirely by an attorney when you go to court and you can recover the attorney fees you spent if it is in your agreement.
The same rules apply if the tenant vacated the property and the security deposit does not cover the damages – you can sue the tenant in small claims court for the balance. Note: It is always a good idea to get the tenant’s forwarding address when they vacate. All you have to do is ask the tenant for their new address because you need to send them the security deposit accounting. You will then have to file the lawsuit and serve it on your tenant.
Attorney Helen Grayce Long is an attorney at Fast Eviction Service. She attended UC Berkeley and graduated with a bachelor of arts. She then attended the University of San Francisco School of Law. Grayce has been an attorney for 25 years and specializes in Real Estate Law. She’s done landlord/tenant work throughout the state of California with an emphasis on Rent Control law. For more information, call (800) 686-8686, email [email protected] or visit www.fastevictionservice.com