Looking for advice on taking a tenant to Small Claims Court in Ontario
January 29, 2014 6:12 AM   Subscribe

I may need to take my tenant to Small Claims Court, and I would like some advice.

My tenant was arrested in early January and is currently out on bail but under restrictions as to what he can do as he must stay with his surety. I don't know what the charges are or whether he's likely to do jail time. He's agreed to give up the apartment and to pay for February in lieu of notice even though he won't be living here.

We've agreed on the amount that he owes me for back rent, which amounts to more than five months' rent. He has been behind on his rent for the past two years. He was struggling financially and having trouble paying his rent, and since he was showing intent to pay by giving me the rent or at least some rent nearly every month and paying down some of the arrears some months, I was trying to give him time to catch up. Then he gave me nothing for either December or January and it really got out of hand. He has promised to pay it all by giving me some money every month until it's all paid off, but honestly at this point I don't have much faith in his promises. Then there's the reality that if he goes to jail, he won't have any way to earn the money to pay me.

Besides the back rent, I am also wondering if I can sue him for what he did to my property. He left his apartment in the most horrible, disgusting mess I've ever seen. You can see pictures of the apartment as he left it beginning here, and pictures of the apartment as it was when he moved in on November 1, 2010 here. I have already spent 15 hours just cleaning out all the garbage (and wound up with cuts to my hands, headaches, and aggravated allergies, and it was especially hard on me to work this hard to due to my chronic fatigue issues, and it means lost income for me because I work freelance), and I estimate it will take another 25 hours to get the apartment clean. Am I entitled to sue for a cleaning charge? I think $600 seems like a reasonable amount (40 hours @ 15/hr). I will say that the apartment is *just* filthy. There seems to be little actual permanent damage, and what there is seems to be consistent with normal wear and tear, so I'm willing to pay for the supplies for the minor repairs and new paint job it needs myself.

What I was thinking I might do was to get my tenant to sign an agreement to pay me for the rent and the cleaning charge, with set terms as to how much he'll be paying me and when, with the understanding that if he fails to meet a payment that I will take him to court. Is this worth trying? My thinking is that it's worth trying because if it doesn't work the signed agreement will help me in court at least.

Any advice on how to take a tenant to small claims court, what I can and should sue him for, and what other options I might have would be welcome. Please just don't tell me I'm screwed and should do nothing or lecture me for how I've handled this. I know there's a very real chance I will never get what my tenant owes me, but I want to do everything I reasonably can to collect on his debt to me, so advise me on that aspect, please.
posted by orange swan to Law & Government (7 answers total) 1 user marked this as a favorite
I want to do everything I reasonably can to collect on his debt to me.

Getting a judgement against him, which is what your hypothetical written agreement would help with, seems like the easy part here. Do you suspect he has some assets (i.e. a car) that you could have seized? If not, this is probably an exercise in futility.
posted by jon1270 at 6:26 AM on January 29, 2014

Don't know anything about Canadian laws or taxes, but at the very least, could you deduct your losses (the unpaid back rent and the cleaning/repair charges) off your taxes? And did anyone (his parents, for instance) co-sign the lease? Then even if he doesn't or can't pay, you can probably make the co-signers pay, or else get a lien placed on their property --- after all, that's what co-signers are for: to guarentee you'd be paid.

You'll need to talk to a tax professional and probably also a lawyer, just to be sure.

(And if it makes you feel better, this all looks & sounds a lot like the one & only time I rented out my place.... good luck!)
posted by easily confused at 7:38 AM on January 29, 2014

Get the signed agreement. Correspond via email, not text or telephone. Get an acknowledgement in writing that he owes you the back rent. Absolutely charge him a reasonable cleaning fee, and try to get his acknowledgement that he owes that as well.

I don't know anything about Canadian small claims court, but this documentation (plus the pictures!) will help you tremendously, regardless of whether it seems initially futile/doesn't work. You can still go even if you can't get the documentation (and convince the judge using the pictures that a cleaning fee is warranted!), but in that case, I would gather everything you do have-ie. the lease and anything else. A lawyer would probably help but likely isn't necessary for small claims court, unless Canada is significantly different than the U.S. in this way -- from my experience as a mediator in small claims court in the U.S., next to no one had a lawyer and were able to still succinctly make out their case to the judge with the help of documentation. Oh, and a judgment will help unless he files for bankruptcy, although it may take awhile, and it might be to your advantage to be flexible with a (court-enforced) payment plan. Seconding comments above concerning looking to guarantors, co-signers, and all seizable assets, although the court may do this for you.

Seems to me like you are doing everything right, and sorry that you are in that position in the first place.
posted by likeatoaster at 9:36 AM on January 29, 2014

Have you considered heading down to the courthouse and seeing duty counsel? If you have everything organised and documented they should be willing to give you their opinion if you are doing everything by the book (for what it is worth, it sounds reasonable to me). You might want to get contact and emergency contact info for him in case you need to serve him.
posted by saucysault at 10:30 AM on January 29, 2014

Good gravy, those before and after pics!

Get the agreement for February rent and back rent in writing and signed by your ex-tenant if possible.

I don't know much about landlord/tenant law in Canada, but I would say it would be more than reasonable to sue him for the back rent and cleaning charges, particularly since you have those before and after photos. Here in the US, it's common practice to take a security deposit (in my experience as a tenant this usually equivalent to one month's rent in northeastern states but considerably lower in the mid-Atlantic states) and/or first and last month's rent as payment before a landlord will give the keys over to a new tenant. The stipulation here is that if your tenant damages the apartment you can refuse to give back his security deposit (or withhold the amount of repairs/cleaning) and if he doesn't pay his rent then at least you have the last month's rent. I'm not sure if it's the same way in Canada or if you did that.

Given that the Province of Ontario will likely be giving him free room and board for a while, I do think you're unlikely to collect, however, the court may be able to seize assets or order that he pay (and stipulate a payment plan).

Find a few cleaning services (here in the US these are companies like ServiceMaster or ServPro) and get WRITTEN estimates to have THEM clean it. Hire the one you like. This frees up your time and gives you a reasonable estimate to go after your former tenant for cleaning.

Get a recommendation for a lawyer or two who handles landlord/tenant law cases in your area. Good lawyers will give you a free consultation. You may also be to sue him for legal fees and court costs. At any rate, a lawyer should be able to tell you what your options are.
posted by tckma at 12:46 PM on January 29, 2014

I suggested this in your previous question re. this tenant, so apologies for repeating myself, but you might want to contact the Landlord Self-Help Centre - they're funded by Legal Aid Ontario specifically to advise landlords in situations like yours.
posted by iona at 3:53 PM on January 29, 2014

Here are some resources that you might find useful (sorry if you've come across them already):

Ministry of the Attorney General

30 mins of free legal advice from Pro Bono Law Ontario
posted by foxjacket at 6:46 AM on January 30, 2014

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