How do I collect rent from an evicted sublessee?
April 19, 2005 8:20 AM   Subscribe

I have been subletting an apartment in Wisconsin for the past few months, and I just found out that my sublessee hasn't paid any rent. He was evicted a month ago. Is it possible for me to recover the rent (for which I am ultimately responsible, according to the lease terms) from him in small claims court?

In February, I got a call from the utility company telling me that the electricity bills were being returned as undeliverable, and asking me if I knew how to contact the sublessee. I called the rental company, who told me that he hadn't paid a dime since moving in in mid-November. This was news to me. It turns out he'd been out of work since his place of employment had had a fire. They worked out a payment plan with him, however, and he told me that he had found work.

Cut to today, when I receive a call from the rental company's lawyer telling me that they evicted him on March 11. The reason they called, however, was to ask me to move my things out of the apartment since there was a new tenant who wanted to move in soon (I was renting the apartment to the sublessee with furnishings).

The total rent will be about $3,000. I should be able to find the sublessee (we have a copy of his driver's license), but how hard is it to bring someone to small claims court, particularly from out of state? Also, was my rental company negligent in failing to inform me that he was delinquent in his rent, and that they had evicted him (they waited a month and a week to tell me)?
posted by UKnowForKids to Law & Government (12 answers total)
Or am I just screwed? (I fear that this is the case).
posted by UKnowForKids at 8:22 AM on April 19, 2005

If you can get a hold of him you definitely should be able to take him to small claims court. IANAL but, isn't a sublease between you and the subleasor? Therefor, it might not have been the rental companies responsibility to tell you about his problems, but they probably put notices on the door or something.
posted by drezdn at 8:28 AM on April 19, 2005

IANAL, nor play one on TV
However, it seems very strange to me that the sublessee was not paying rent to YOU. If the rental company was collecting the rent, how is it you are responsible?

When they chose to collect rent and latter, evict the sublessee, they stepped in to the matter between you and the sublessee. It wouldn't surprise me if they must then accept some responsibility themselves. Most especially as they did not notify you of the situation.

This would be dictated by the terms of your lease and the Wisconsin laws governing such situations. I never had to deal with subletting in Wisconsin, so I'm clueless. But the laws in general are slanted against landlords in favor of tenants (I've been both in Wisconsin).

I do wonder, did you effectively pay any sort of fee to the rental company for "managing" the sublease for you? This sounds like what they were doing, since they collected the rent and evicted your tenant.
posted by Goofyy at 8:36 AM on April 19, 2005

Goofyy, I'm responsible because the subleasing contract that the sublessee and I signed says that I'm ultimately responsible. There was a $100 subleasing fee, but I think that was to cover the cost of meeting with their lawyer, preparing the paperwork, etc. There is a tenant's resource center in Madison - I'll probably contact them today.
posted by UKnowForKids at 8:47 AM on April 19, 2005

I had problems with a roomate in Missouri, and I found out that there, you can sue people in small claims court for up to $2000. Just the threat of a suit was enough to get me the $900 he owed me, and we're actually still friends.

I don't think you have to be able to find the person to launch a suit. It helps on the reward side if you can find them, though. If they're not willing to pay, the judge can order the money to be garnished from their wages.

For cases of more than $2000, you have to sue in real court, though with legal costs you may just be better going through small claims and eating the $1000. It's a fair bet that Wisconsin has a similar system to Missouri's.
posted by nyterrant at 8:52 AM on April 19, 2005

nyterrant, it looks like I can sue for up to $5,000 in Wisconsin small claims court, which is handy. It's the collection side that I'm worried about, though. I think the rental company has his mother's address, though, which should help me find him. I can also go to his former employer in Madison, who might know where he is now - I think they are friends.
posted by UKnowForKids at 8:58 AM on April 19, 2005

"I think the rental company has his mother's address... I can also go to his former employer..."

Assuming that either will tell you where he is.

Also, to garnish you must know where he works, and if he is no longer in Wisconsin, garnishment could be quite difficult.
posted by mischief at 9:07 AM on April 19, 2005

Sublessors are always on the hook to the landlord if the sublessee skips out on the rent. The fact that you expressly stated so in your contract is just redundant, and didn't hurt you any extra.

It doesn't sound like the landlord delayed excessively long in informing you, but it's hard to tell. The fact that they have found a new tenant probably speaks to the fact that they engaged in good-faith mitigation of damages, but who knows (this is for a court to decide if you want to attempt to sue the landlord).

If you receive a court judgement for the amount due against the sublessor (which in all probability you will), it is the state marshall/sheriff who will do the actual collection. If the sublessor has left the state, you will have to send a copy of the judgement to the marshall/sheriff's office in the sublessee's current state of residence to get them to enforce the judgement. Contact your local lawyer or marshall/sheriff for details.

* - I am not a lawyer, you should get your own lawyer to answer specific legal questions
posted by falconred at 9:32 AM on April 19, 2005

IAAL, but not in Wis. This advice is not legal advice and is worth what you're paying for it.

You probably can get the unpaid rent from the subtenant, based on your sublease agreement -- if you can find him and if he has any money. On the other hand, if the sublease is illegal, the courts leave you where they find you.

If the landlord agreed to the sublease, or there is a clause in your lease permitting subletting, the landlord should be able to recover from the subtenant, but you'll almost always remain on the hook.

You may not be able to go into small claims court, but instead have to file a full-fledged (meaning expensive, with a lawyer) lawsuit. Local statutes vary on what kinds of claims the small claims court can hear. Typically, they're for sale of goods contracts, but some states let you recover for other kinds of claims. The best place to check is with the small claims court clerk's office.

Remember also that the subtenant may not respond to the small claims court summons. You'll get a default judgment, but you'll still have to find the guy and get the sheriff, marshall or whoever to schedule a seizure and sale of his assets.
posted by KRS at 11:23 AM on April 19, 2005

The Wisconsin Court System publishes a guide to small claims court that you may find helpful.
posted by greasy_skillet at 12:48 PM on April 19, 2005

Thanks, greasy_skillet - that was the first thing I found and printed today. Quite handy.
posted by UKnowForKids at 12:58 PM on April 19, 2005

I would have thought the key issue is whether the subleasee has any funds to pay a judgemeny against him. Given you say he was out of work and has other debts it is worth ascertaining whether he has any cash before sueing - otherwise you could just be throwing good money after bad. Not that I know anything about US law...
posted by prentiz at 4:50 PM on April 19, 2005

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