Let's sue the landlord
July 24, 2016 6:52 PM   Subscribe

My former landlord is past due on returning my security deposit. I reminded her after the legal deadline and told her to get it to me in the next week. Now the week is past and I have questions about suing her in small claims court. Several questions inside.

I texted her this morning and told her that I would be filing suit tomorrow. She (predictably) told me the check is in the mail. I told her I’ll believe it when I see it and that I would be open to settling if she pays me what she owes me. She has a long history of trying to avoid financial obligations and was generally a terrible landlord (a precipitating factor in moving was that she claimed she would make repairs after a heater exploded above my ceiling and left several large cracks, then gave me the runaround for months), so I’m not disposed to give her the benefit of the doubt. I’m pretty sure she was trying to screw me on this. I am pretty shy and she repeatedly took advantage of the fact that I was unwilling to rock the boat as a tenant, so she probably thought I would be unwilling to sue.

She’s said via text that she planned to pay me the full amount, so there’s no question about whether I damaged the apartment. The week deadline between reminding her and suing is admittedly short, but if she had mailed me the check by Wednesday it would have certainly gotten here in time. Plus, in total, it’s now been almost eight weeks since I moved out, so it isn’t like she hasn’t had plenty of time. She’s clearly solvent, by the way, so this isn’t a matter of her being unable to pay.

This is in Maryland.

I've never done anything like this before so I have a bunch of questions about what my next steps should be.

1) I usually paid rent to an LLC operated by the landlord, but I'm pretty sure that my security deposit was made out to her personally. Do I sue her, the LLC, or both?

2) She had me send rent checks to a post office box, but public records show the address of her LLC is a private house that I'm sure is hers. I would prefer having her served by a sheriff at her house rather than at the PO Box through certified mail. Is there any reason why I shouldn't do this?

3) If I understand correctly, the law says that I can sue for three times the cost of the security deposit. The total amount would still be within small claims court limits. Is there any reason not to seek the maximum amount?

4) I think it's likely that she'll be willing to settle. Of course I'll ask for the full deposit, interest, and court costs, but is it inappropriate to ask for damages over that amount? I have no direct monetary damages but it has cost me time and meant I have to tighten my belt for the month. Do I say something like, "Given the substantial inconvenience this has caused me, I'd like $200 above the other money you owe me if you'd like to settle the case"?

4a) Whether or not it's appropriate to ask for additional damages -- if she actually does send me a check for the amount of the security deposit, it will now no longer cover what she owes me. How do I go about getting the remainder? If I want to settle, do I just say, "Thank you for the $xxx. You now owe me $xxx for legal fees and damages. Mail me a check for that amount and I'll drop the suit." Or do I wait for her to make a settlement offer?

5) Do I even have to settle? If she offered the deposit, interest, and court costs but not damages, would I stand to lose at all by going through with the suit? I have a flexible work schedule that gives me several weekdays off, so it would cause no great additional inconvenience to actually go before a judge. If there was no possible downside and I would be nearly certain to collect the deposit, interest, and court costs regardless of what I did, I'm disposed to pursue it in search of additional damages even if it's uncertain that I would actually get any.

6) The most important evidence I have is a chain of text messages with her. We communicated entirely over text so it's all pretty clearly laid out there. Is there anything special I have to do to present and validate the messages in court?

Thanks for any help!
posted by anonymous to Law & Government (10 answers total) 1 user marked this as a favorite
3) No, and settling for the actual amount is doing her a HUGE favor. She's breaking the law, and aside from the number of dollars, avoiding the public record of a court judgement prevents others from learning what kind of landlord she is prior to signing a lease.

6) In California, you don't need to sweat it (but print/bring any communications) and for deadline things like this just can't think MD is any different. It's pretty much, "has it been over 30 days? Did you return the deposit within that time? You lose, pay anon 3x."
posted by rhizome at 7:49 PM on July 24, 2016 [3 favorites]

I'm not a lawyer, but I can tell you what happened when I hired one to sue my landlord under similar circumstances.

My landlord was past due on returning my security deposit and wasn't returning my calls. My lawyer filed suit against my landlord, around which time the check appeared. I'm sure that my landlord noticed our attempt to serve her, put the check in the mail, and then accepted service. She claimed otherwise.

Despite having my deposit back, I pressed on for damages, because the payment was still late, and I wanted to recoup the cost of my lawyer. I made an offer for 2x, which my landlord rejected, so months later, we ended up in court. My landlord pleaded oversight, and the judge gave me nothing. I was not allowed to appeal.

My lawyer was outraged and waived his fee, but the emotional cost to me made the whole experience not worth it. If I had to do it over again, I'd send a certified demand letter (with proof of delivery) first and walk away if that was sufficient to get my deposit back.
posted by all the marbles at 8:00 PM on July 24, 2016 [2 favorites]

You probably won't get a good reference from a landlord you have sued, which is a factor if you plan to rent again in the future.
posted by w0mbat at 8:03 PM on July 24, 2016 [1 favorite]

(rhizome, I was so sure that my state's laws about late return of a security deposit made the damages mandatory. The judge disagreed, and only her opinion mattered in the end.)
posted by all the marbles at 8:23 PM on July 24, 2016

That sucks, but there's still a judgment against her in the public record. Try it!
posted by rhizome at 1:58 AM on July 25, 2016

This is very, very location dependent. Have you called your local tenancy hotline? They probably have the best insight into the norms where you live.

Also, I'd put out a call on Facebook or other local social media for anyone in your location who's had experience in suing over a late bond return. There might be some friend of a friend who's been through this and can give you an idea of what to expect. If all the marbles is in Maryland for example, I wouldn't consider going to court.

A definite possible downside to taking her to court is if you have to disclose previous landlord's names on rental applications in your area. If she's vindictive, she could tell them anything, but the truth may be enough to get your application rejected, as some rental agents may consider suing a red flag for a high drama tenant, irrelevant of how justified it was.
posted by kjs4 at 1:59 AM on July 25, 2016

My one piece of advice here, having just taken my landlord to small claims, is to cease back-and-forth-texting with the landlord, and begin the process of filing your suit today. You gave your warning, continue forward. If you actually receive a check, it's easy to simply stop the process as soon as that check clears. Likely as soon as your landlord receives your official correspondence, they will actually send the check.

(In California, we have to write a letter making the "demand" first, before filing the suit, with a due date by which the potential defendant must comply with the demand. If they don't comply by that date, then we can file the suit.)
posted by latkes at 7:29 AM on July 25, 2016 [1 favorite]

Seconding the idea that there is likely some kind of local legal assistance group that will help you with all of this. Also, generally, there is often a form compliant you can file in small claims court just by filling in a few blanks. The clerk's office in the court may have some pointers for you on this. It is also possible that a contingency fee plaintiff's attorney would take the case for a portion of any recovery (e.g., ~30%).

Generally, there is a big hassle factor in pursuing something in court (small claims or otherwise). So - very generally - your best bet is to try to leverage a settlement early in the process either before you file the suit (as you are doing) or soon after. What you have to lose by taking the case through trial is generally a lot of time and aggravation. You'll have to do your own cost/benefit analysis on that versus taking a settlement that is less than your maximum possible recovery.

If the law allows you to ask for 3x the deposit, you should ask for it. You could add some generalized line for "all other damages and relief the Court finds appropriate," but note that you are unlikely to recover anything for inconvenience/time spent/hassle.
posted by Mid at 7:30 AM on July 25, 2016

Generally, you sue whoever is listed as the owner/landlord on the lease. Whether that is her or the LLC, you can't serve a post office box, so if you're going with document service rather than registered mail, then yes, the address of the LLC would be the most likely place. Don't forget to include cost of service in your filing.

Residential Tenancies laws vary by state. Suing to get your security deposit back is not quite the same as suing for other moneys in small claims court, though it looks like the same $5000 limit applies. So, first, find a copy of the Maryland law and read it. Here are some links: [1], [2], [3]. Consulting legal aid is a good idea as well. There may be a free tenant clinic that you can go to. If you don't meet the income requirements, they won't help you with your case for free, but should be able to recommend a lawyer. Having someone to at least help you prepare your case is helpful. (I'm not finding any tenants unions or tenant's rights groups you could consult on a quick search, but such groups can be very helpful resources as well.)

You can usually (in many jurisdictions) ask for damages due to general hassle. You can consult a lawyer or search online for relevant caselaw (I don't know which site to use for Maryland, sorry, but calling a law library and speaking to a reference librarian would help with this) to find the correct terminology to use. Searching recent caselaw will also give you an indication of how much money judges tend to award for this sort of damages, so you'll have a better sense going in of what to ask for and how to argue for it. In my area, for example, $500 seems to be a sort of standard amount for general damages in tenant disputes against landlords, for no particular good reason aside from that was what has been awarded in similar cases in the past.

The potential downside to asking for the full amount is the possibility of annoying the judge who will be deciding your case. The judge will have some leeway in deciding how much to award you, and this may depend on factors such as the judge's own politics and prejudices regarding landlords versus tenants, or how sympathetic and reasonable the judge deems you to be versus your landlord. (Which is part of where having a tenants group helping you out can be useful: having people supporting you sitting in the benches watching the proceedings can send a signal to the judge about how you are regarded in the community versus your landlord, or about potential political fallout of the decision in contentious cases (though it doesn't sound like your case will be particularly contentious).)

But also, it sounds like there were some maintenance issues that affected your use and quiet enjoyment of the apartment while you were living in it, so you may be able to argue for a partial rent refund, depending on the circumstances. Check your lease and the local residential tenancies law to see if any clauses aside from the security deposit one have been violated.

Other, more specific cost that you can ask for include:

* interest on the security deposit - you can specify Maryland's current percent interest that landlords are supposed to return security deposits with, for the time from the date that you paid the security deposit (a specific date that you can and should write down in your filing) to the time the security deposit is paid (an unknown future date), rather than a specific amount

* all of the filing fees

* lawyer consultation fees if allowed by small claims court - this is not always allowed at the small claims court level, so check local laws/regulations

* cost of preparing evidence for your filing and hearing (eg. printing costs, if applicable)

* cost of taking time off work if applicable, travel costs if applicable (those of us with somewhat flexible jobs and our own cars, which it sounds like includes you, can't feasibly claim cost of taking time off work and cost of public transportation to the relevant offices, but for many folks taking an hour off work to go file, including the public transportation cost to get there and back, is a real cost that other potential readers of this thread can and should claim)

Do print out all of your evidence. It is better to be over-prepared than under-prepared. For the hearing, you may need three copies of everything: one for the court, one for the defendant (your landlord), and one to keep for your own records. Organize everything nicely in a neat folder or small binder, giving each piece of evidence an index number for future reference - basically, you want to make writing up the decision as easy as possible for the judge, and also be as clear, direct, and concise as possible in making your own case.

As latkes notes, stop other back-and-forth with your landlord at this point. The next she hears from you should be the notice of filing service, which will include the total amount (beyond just the security deposit) that you are requesting. So if she sends you an actual check for just the security deposit, you'll have to decide whether the extra amount is worth the hassle for you or not, but you'll know at least that she is specifically ignoring the rest of your costs if she does that. Also, seconding the suggestion to make sure the check clears before dropping your case, if the landlord does send you a check and that's sufficient for you.

Regarding the potential downsides of not settling: that will vary quite a lot by jurisdiction. Maryland should be much saner than where I am - I think your small claims court has actual judges, for example, not local lawyers who serve as small claims court adjudicators a few nights a month - and from the details you've provided, it seems pretty clear cut that you should get your security deposit back, but... if you do go to court, there is a potential that your landlord could mount a defense that you left the unit with damages beyond normal wear and tear. Do you have an out-inspection signed by the landlord, photos, or other evidence of the move-out condition beyond the correspondence from the landlord indicating her intention to give you the entire security deposit back (which should count as equivalent to an out-inspection, but...)? The whole small claims court process can be a bit of a hassle, too, depending a bit on your own personality. A judge is unlikely to award you damages for that particular hassle if the landlord offered to pay the security deposit plus interest and filing fees and it was your decision to proceed with the small claims court case anyway. If you can make a case for a more significant rent refund, on the other hand, and the landlord hasn't offered to pay that, then proceeding with the hearing may be a good option.

Caveats re above advice: I have been a tenant advocate (for myself and for others) but IANAL, particulars of your situation not mentioned in your ask may affect the situation.
posted by eviemath at 8:19 AM on July 25, 2016 [2 favorites]

I am not a lawyer. This is not legal advice.

A quick check of the Maryland Office of the Attorney General's page about rental rights tells me that MD law says the deposit (minus damages) must be returned to you within 45 days of the end of tenancy, and that you're also owed interest (there's an unlinked reference to the Maryland Department of Housing interest calculator). If the landlord has not, at the 45 day mark, provided you a list of damages that reduce the security deposit, the landlord loses the right to withhold any part of the deposit. If the deposit + interest - delineated damages is not returned within 45 days, you have the right to sue for 3x the deposit plus reasonable attorney's fees. It does NOT appear that you can include interest in your damages calculation.

I would not consider settling, at this point. Start court proceedings suing for what you're entitled to (which, if it's been "almost 8 weeks", sounds like 3x) and, if she's paid some portion of the total before the case gets to court, make sure the judge is aware of the payment. Letting her skate with a settlement will not discourage her from doing this to the next tenant as well.
posted by hanov3r at 12:56 PM on July 25, 2016 [2 favorites]

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