Missing in Action, Presumed Deadbeat.

September 20, 2006 11:46 AM

I live in a house where the rent is shared amongst five people. One of those people left for Vancouver over a month ago, presumably because she had a good job offer where she could work unlimited hours. This was to be a 2-week "working vacation" and she told us she was going to use those two weeks to save up some money for paying her variously-accruing debts. She hasn't returned. We need to know what our options are.

A little more detail. We failed to get any sort of number where she could be reached, and feel a little stupid about this. She was supposed to be home well before rent was due for last month and wasn't. Supposedly we received a message on our machine from her, asking us to go in and pick up her cheque. We tried to call back this number, but got a business lines that hadn't heard of her.

Recently, I'd heard from one of her friends that she was supposed to be back last weekend, but she never was. And now, we've heard through the grapevine that she's supposed to come back this Thursday.

She owes us nearly $1300. She's two months in arrears on her portion of the rent, very nearly three now. She owes around $500 on her share of the phone bill. She's behind on utilities. She has two other "official" creditors that we know about. She's deeply in debt, and we're kind of worried about her simply coming home long enough to grab her stuff and leave us with her debt.

We're considering throwing a 2x4 over her door, preventing it from opening. She still has access to her room via her window, which she's used in the past when she's locked herself out of the house. This would mainly prevent her from removing her large, big-ticket items. Is this legal?

We're considering claiming her stuff, if we have any right to it, as abandoned and trying to recoup costs out of that. Is this legal, and if so, under what conditions?

We're considering renting out her room as quickly as possible to stop this cash hole in all our wallets. Is this legal?

We're considering calling the police and reporting her missing. While we are upset with her for debt issues, we are also genuinely concerned, as she's been gone a long while, and we only have anecdotal evidence to her welfare. Will the police be upset with us?

For reference, we're in Ontario, Canada.

Any more questions, I'll reply. We're kind of at our wits end, and none of us are in great financial shape ourselves. This is very nearly a make-or-break issue for each of us.

posted by Imperfect to work & money (29 comments total)

Who's on the lease?
posted by facetious at 11:53 AM on September 20, 2006

The details you haven't included are how your lease is set up. Is one of you on the lease and rest sub-letters? Do you all share the lease equally? Do you even have a lease?
posted by jacquilynne at 11:54 AM on September 20, 2006

Here is the for Ontario.

Are you all on the lease? Or is someone her landlord? Here is what to do if *your* tenant fails to pay rent.

How was the rental agreement set up?
posted by acoutu at 11:56 AM on September 20, 2006

Uh, forgot to close the first link. Second link starts with "tenant fails". Sorry.
posted by acoutu at 11:57 AM on September 20, 2006

Sorry. All of us are currently on the lease.
posted by Imperfect at 11:58 AM on September 20, 2006

You really need a Canadian lawyer's advice (i.e. possibly from a Law School legal aid clinic or public "renter's aid"-type place). This looks like a promising start.
posted by facetious at 12:07 PM on September 20, 2006

Ugh, I was really hoping to avoid ever being in one of those situations where you ask a question on AskMefi and you get 20 choruses of "Get a lawyer now!"

I guess that's one thing I'll have to tick off my list of "Things never to do".
posted by Imperfect at 12:16 PM on September 20, 2006

You have an ugly situation. What you're about to run into is "can't get blood from a stone", which means "if she has no money, you can't get any money from her".

I'm not going to suggest a lawyer, since you don't have the money for one. You could try Legal Aid, as suggested above.

You should NOT pay her portion of the rent. It appears that you have been, but you shouldn't. Let the landlord try to recoup from her. Pay the landlord the 4/5ths of the rent each month.

You SHOULD immediately enter her room, clear it out, and try to rent it to someone else.

You SHOULD tally her debts to you, itemize them, and print up an invoice of sorts (while it's fresh in your mind and you have receipts, bills, etc.)

You SHOULD NOT let her get any further in debt to any of you.

Past that, there are a few ways to proceed. You can sell her stuff and apply it to the money she owes you. This is not strictly legal, but, well, people have done it before. (If she were a commercial client, it would be legal - a landlord can hire a bailiff to seize a commercial tenant's property, sell it at auction, and apply the money toward back rent. But it's not legal for individual tenants as far as I know. You might call a bailiff company and ask, though - good way to get some free advice from guys who are routinely in the trenches, seizing property.)

You can try to bring a suit against her, which if successful would allow you to legally sell her stuff for the money owed you. Contact your local small claims court for ways to proceed.

Or you can just throw her stuff out on the street.

Is any of the stuff actually valuable?
posted by jellicle at 12:26 PM on September 20, 2006

The Law Society of Upper Canada recommends that lawyers give an initial half-hour consultation for free, and almost all lawyers in Ontario do.

They have a Lawyer Referral Service where they can put you in touch with a lawyer who has the appropriate specialty (and is available to see you). It's a $6.00 (900-number) phone call, but you get a half-hour consultation with the lawyer for free.

Your first goal should be to do whatever you can to avoid increasing her debt to you. If there's any shared bill which she could potentially be making charges to while not in the house, get her name taken off the account now (seriously: stop reading right now and pick up the phone)
posted by winston at 12:26 PM on September 20, 2006 [1 favorite has favorites]

Don't throw her stuff out on the street, that's lousy. Can you call her parents to let them know what's going on?
posted by Mr. Gunn at 1:09 PM on September 20, 2006

Do you have a contact number for a family member or partner or something, someone closer than the mutual friends you mentioned? Could you call them and explain the situation - you are concerned, there is a financial issue, can you help us locate her?

IANAL, but you may find this other pamphlet on ORHT useful - Disposal of Abandoned Property. Since you are all on the lease, could you go to the landlord and explain the situation? If he agrees to terminate the tenancy for this one missing person because she abandoned the apartment (which he/she may not be able to do if you're all on the same agreement, but maybe, again a lawyer will help here). Then the landlord could perhaps claim the property, and sell it. That doesn't help you necessarily directly, but if you go to the landlord now, maybe you could convince him/her to take these steps, they may be willing to sell the abandoned property and apply the proceedings to the outstanding rent that she owes (so you don't all have to pay it). Getting the landlord to terminate also means they have to make some effort to find her I think, so that may be a way of getting in touch with her. Again, IANAL, so if you can find some inexpensive legal aid, that would be the best. If you could let us know what community you are in, I can potentially see what's available if it's close to where I am in Hamilton.
posted by Cyrie at 1:25 PM on September 20, 2006

In addition to the Law Society of Upper Canada, you might get help from the legal aid clinic "Advocacy Centre for Tenants Ontario".
posted by ChuckLeChuck at 1:29 PM on September 20, 2006

You should NOT pay her portion of the rent.

I don't know bupkus about Canadian law, so this may not apply but -- in the U.S. it's common for renters to be "jointly and severally" responsible for rent. In essence, you'd automatically owe whatever the deadbeat roommate fails to pay. Sucks, don't it? Anyway, hopefully your lease and Toronto law have no similar provision; but I'd recommend checking before suspending further payments on her behalf. It would suck much more if you got stuck with the bad credit or eviction because of someone else's debts.
posted by nakedcodemonkey at 1:34 PM on September 20, 2006

If what everybody else says about your not being responsible for her rent actually turns out to be true, you will be able to get money out of her eventually. Not in time to make your current situation any easier, but eventually, i.e. when she gets some money, buys some property with it and then sells it, because you'll have a lien against her.

First, though, you've got to go through small claims court against her, which blows, and you have my sympathy.

Well done, you, by the way, for making sure everyone who lives in your house is under legal contract for their individual rent. Very smart.
posted by catesbie at 1:46 PM on September 20, 2006

Well, actually, under the terms of the lease, we're all liable if any of us should fail to pay a portion of the rent, hence why we've been paying since.

I'll give a lawer a call tomorrow morning, see if I can't get that half-hour consultation.

We'd like to call her mother, except we don't have her number. We'd look it up, except her last name is Smith, and this kind of excludes any reasonable search for her in the phone book.

No-one in the house wants to be a jerk to her, but we're all interested in serving our interests first. We've been covering for her for about a month now and she's made no attempt to contact us. Please undestand that none of us are particularly mean, but neither do we appreciate being taken advantage of if that turns out to be what she was doing.
posted by Imperfect at 2:01 PM on September 20, 2006

Woah. Pay her portion. The landlord doesn't care who owes what to whom, or how you have decided to split up responsibilities. If there's a lease saying the landlord must get $X, he must get $X, no matter what, no matter how. That is Ontario law. You can't withhold rent for almost any reason, and certainly not because one of the people on the lease took off. You are not "individually responsible for your portions of the rent" unless it specifically says so on the lease, with dollar values, which I'm sure it doesn't. Well, I guess it could, but why on Earth would a landlord agree to such a thing?

Also, do not sell anything, dispose of anything, etc. You are in a situation that has nothing to do with tenant law and everything to do with small claims. Your friend contracted to pay her portion of the rent. She did not, and owes the rest of you money under that obligation (and the rest, with the phone and whatever). Before you sell anything or take anything of hers, you need to go to small claims court and obtain a judgment against her. Otherwise she can sue you for the theft of her property.

Document everything, *pay your rent in full*, execute due dilligence in trying to find this person, terminate all rights they have to common accounts, try to find a cheap lawyer and take her to small claims to obtain a judgement, an order of seizure or a garnishment.
posted by loquax at 2:04 PM on September 20, 2006

IANAL, but I endured a similar problem to this in college, and my collegiate legal aid dept told me that we needed to pay our rent as agreed in our contract, even if all parties were no longer contributing. Then again, in our lease (in California), the phrase "jointly and severally liable" appears many times.

In the end, we were advised to fully honor the contract with our landlord, and try to settle up with our MIA 4th roommate out of court first, and then in small claims if this first plan absolutely didn't work. We settled for less and made a payment plan that was suitable for all without ever stepping foot in court. With about $2100 in debt accumulated, he was able to pay back $1800 within the 6 months left in our lease and he also forfeited his portion of the security deposit (which was more than the difference between what he paid and what he owed).

I received a lot of advice at the time (from my parents, other friends, etc.) to go to small claims and try to get the money as quickly as possible, but like it's been said - this will result in the headache/expense of small claims (time off work, etc.) as well as the very real possibility that this person cannot pay for the sum all at once.
posted by littlelebowskiurbanachiever at 2:32 PM on September 20, 2006

To clear that portion up, we've never withheld rent, nor will we withhold rent.

We are concerned about putting that room back to rent-generating purposes, and getting roommates in there that can pay the bills. Any further advice about "repurposing" her room?
posted by Imperfect at 2:40 PM on September 20, 2006

I'm a landlord, and I always make it clear that the tenant group is responsible for the whole rent, otherwise, it's a rooming house, and not what I want.

You're extremely unlikely to see any money from this person. I think jellicle has it right. If any utilities are in her name, have them cut off, and reinstalled in a new tenant name. You may be able to backtrack and find her via any mail delivered or phone calls.

Who has her security deposit? If it's available, you can get a new roomie, have them contribute a new security amount, and recover a little. Put her stuff somewhere reasonably safe. If it's of value, get the word to her friends that you'll try to sell it, fairly, to defray some debt.

Each roommate should cover a utility, so no one gets screwed too badly in cases like this. One peron has the phone in her name, another the electricity, etc. I recommend to tenants that they have written agrements about this stuff.
posted by theora55 at 3:20 PM on September 20, 2006

Any further advice about "repurposing" her room?

That you should be able to do. It's been long enough. I would ask the landlord to rip up the lease with them on it and draw up a new one with the four of you. Then sublet the other room (with the landlord's permission, which they cannot unreasonably withhold) with that other person accountable to the four of you. Store the deadbeat's stuff in the basement or something until you can sort out your claim against them for back rent and expenses.

The problem is that the landlord may refuse to remove the deadbeat from the lease without their permission, as technically, as long as the rent is being paid, they have the legal right to live there. That's why you may need to go through the legal excersise of "giving two months notice" to the landlord, while at the same time signing a new lease amongst the four of you to begin possession as soon as that two months is up, if you follow. The only thing I would do is send a peice of registered mail to any address you think the deadbeat may be at, even if it gets returned to legally show that you made an honest attempt to reach them before you dissolved the lease. Then you should be able to sublet the other room (legally) as soon as the two months is up.
posted by loquax at 3:20 PM on September 20, 2006

It doesn't seem like creating a lease situation where they're subletting the other room is a good long term solution. That just sets them up to have this happen again, except all the legal liability to pay the main rent is on the four of them while whoever the fifth is is only legally on the hook for their part to the four roommates, so the landlord really doesn't care even more.
posted by jacquilynne at 3:49 PM on September 20, 2006

We're not looking to sublet the room. If she's gone, she's gone. Any new tennant will sign the lease the same as the others. Yes, it does create much the same situation, but hopefully we'll vet this new roommate with a little more scrutiny, and require more in the way of emergency contact information (parents, etc) before they move in.

It would be nice to avoid that liability again, but the reality is (I figure) that most people in shared living arrangements are in the same situation, and the best way to deal with it (in the future, anyway) is just not to be so naive regarding our roommates.

Am I right on this?
posted by Imperfect at 4:08 PM on September 20, 2006

I've just been dealing with a severely fucked up roommate situation. So...

1) You are definitely jointly and severally liable for rent, unless otherwise stated on the lease, which is unlikely.

2) You have zero rights. Your landlord does, and it's your landlord that needs to deal with property/etc. How well this works depends on your relationship with the landlord. A lease could be dissolved very quickly if she is evicted--there are several grounds under which the landlord can evict, some of which are very nebulous and easy to spin, if necessary. The ORHT website has all the forms. I strongly suggest you read them.

3) Do what was suggested about utilities. One in each person's name. Much simpler. Or, everything in one person's name (or two or whatnot), with the proviso that $X must be put into a kitty at the same time as rent is due, or you don't get to use the phone/watch tV/etc.

4) Subletting may be a better way to go. If she had sublet from you, for example, you would have been the de facto landlord--giving you all sorts of rights regarding eviction, sale & disposal of property, etc.
posted by dirtynumbangelboy at 6:44 PM on September 20, 2006

Just wanted to second (third?) that subletting to the new tenant is definetly better than getting a new "jointly and severally liable" lease with all five of you.

Hell, given how badly you got screwed on it the first time (hence this post) how could you think that doing the exact same thing again could possibly be better than the alternative?
posted by Riemann at 7:13 PM on September 20, 2006

This happened to a buddy of mine last year - except he owns the place, and a friend of ours was renting out a room to help him with the mortgage. He went back to Greece for his grandmother's funeral, and 2 months later called and said he'd be coming back in a week. We never heard from him again. He'd been living in Canada for 20 years, almost, and just up and left, never to return. My buddy ended up throwing out most of his stuff (including his bed and porn collection, ew) but gave the big ticket items (TV, stereo, a TON of art supplies) to friends.

How long, exactly, has this roommate been gone without contacting you? Can you not lock her window to prevent her from getting in that way? I'd put a padlock on her door, lock the window, and put a sign on her door saying "Yeah, you owe us 2+ months' rent, on top of many other things. You ain't gettin your stuff till you pony up".

Also - if you are planning on taking a new roommate to replace her, I would consider changing the locks. She still has a key to your house, after all.
posted by antifuse at 1:16 AM on September 21, 2006

antifuse writes "'Yeah, you owe us 2+ months" rent, on top of many other things. You ain't gettin your stuff till you pony up'. "

Unfortunately, that's illegal. If they want money out of her, they have to go to small claims court. They have no legal right to take her stuff. None. She could have them charged with theft under.

As I said above, the landlord has some legal rights--but since he's getting his money, he has no leg to stand on when it comes to this twat's stuff.
posted by dirtynumbangelboy at 6:23 AM on September 24, 2006

Unfortunately, that's illegal. If they want money out of her, they have to go to small claims court. They have no legal right to take her stuff. None. She could have them charged with theft under.

Ok then: "We threw out your shit. It's in the landfill across town. That's what happens when you hang people out to dry, deadbeat. And your room has been rented." - you don't get your money back, but perhaps a bit more satisfying.
posted by antifuse at 12:43 AM on September 25, 2006

...and you can be charged with theft, wilful damage to property, etc. How satisfying is that?
posted by dirtynumbangelboy at 6:56 PM on September 26, 2006

...and you can be charged with theft, wilful damage to property, etc. How satisfying is that?

At what point, though, does it become abandoned property? Surely, the roommates are not expected to store this woman's items forever, until she decides to return for them? She left, provided no contact information, and is not providing her share of the rent, and has yet to provide any concrete information on when she is returning (having passed her two week original return date). Are her current roommates supposed to wait until they are evicted for nonpayment of rent?
posted by antifuse at 3:20 AM on September 27, 2006