I’m willing to bet that the issue of collecting money against a tenant is one of the most frequent topics that landlords ask regarding tenants. This is an important matter that landlords should carefully consider when faced with such a problem.
What Type of Money Is Being Pursued?
On this topic, the first initial question that needs to be determined is the type of money that the landlord wishes to pursue against the tenant. Generally, there are three types of damages: (1) unpaid rent (2) damages to the apartment and (3) attorney fees.
The first two types of owed money, unpaid rent and damages to the apartment, speak for themselves: if a tenant owes a landlord money, or damages the apartment, the landlord has a legal cause of action against the tenant.
Attorney fees are a different matter. A landlord generally only has a right to collect attorney fees against a tenant if there is a written agreement providing for this. If there is no such agreement, the American Rule on legal fees generally controls, which does not allow a party to collect legal fees against an opposing party.
Options for Collecting Money Against a Tenant
Options for collecting money against a tenant generally consist of the following: (1) a security deposit (2) eviction case or (3) a civil action.
Security Deposit: Massachusetts’s security deposit law permits a landlord to use a security deposit for unpaid rent and damage to a rental unit. If a landlord has a security deposit, and a tenant owes rent or has committed damage to the apartment, a landlord (using the proper procedures) may deduct such expenses against the deposit. A landlord, however, must be extremely careful in handling a security deposit, as a failure to comply with this law can result in treble damages, costs, and attorney fees.
Eviction: If a landlord is pursuing an eviction against a tenant, they have the option of seeking unpaid rent as part of the eviction case. This, however, is the only money that may be pursued in an eviction : a landlord is not entitled to any other damages in one of these cases, such as damages to an apartment. For that, the landlord must pursue a separate civil action.
Civil Action: A landlord may pursue a civil action against a tenant for any type of owed money. If the damages are under $7,000, the landlord can go to small claims court; if the damages are greater, they would need to file a regular civil action.
While a landlord can attempt to collect money against a tenant, doing so is not always prudent. If the tenant does not have employment or assets, attempting to enforce a judgment against a tenant can be extremely difficult.
Moreover, in the context of an eviction, it is worth considering whether collecting such money is more important than obtaining immediate possession of the apartment. This is an important consideration in determining whether to fight or settle an eviction case with a tenant.
Collecting money against a tenant is not an easy endeavor. Before making a decision on this important topic, speak to an experienced landlord-tenant attorney for help in making this decision.