Recourse for tenant refusing to pay for damage? VA

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Recourse for tenant refusing to pay for damage? VA

Joo Chung
Frederick, MD · Member since 2016 · 3 posts · 0 votes

Hi, this is my first post on BP. I'm glad to have found such a fantastic community of people! I hope I can not only learn a lot here, but also give back at least a little bit from the experiences that I've had over the years. Anyway, without further ado ...

I have a problem. Last November, very late at night, a tenant of mine broke the toilet inlet pipe, causing a flood that led to about 500 square feet of laminate flooring getting wet. All of the flooring needs to be replaced, because, as you may know, laminate flooring, once it gets wet, expands, leading to raised areas where the pieces join. Plus, there was an emergency call to the plumber to fix the pipe to the toilet (needed because the toilet wouldn't work otherwise).

I paid for the emergency plumbing repair, and have gotten estimates to replace the flooring, and have told the tenant to pay, since they caused the damage. The tenant absolutely refuses to pay, claiming that the pipe broke on its own, or some nonsense like that (although the tenant did admit to causing the pipe to break in other communications). 

Also, I've tried to schedule a time to have the floors done, but the tenant doesn't want me to have the work done, because the tenant doesn't want to pay for it. I know that I have the right, as landlord, to have the flooring work done as long as I give 24 hours notice. So, no problems there. 

I've offered to let the tenant pay in installments, I've offered discounts on the repair fees, and I've given months to come up with the money. Tenant simply will not pay. 

I was just going to deduct the cost of repairs from the security deposit, but based on estimates for flooring work, the tenant is going to end up owing me probably another thousand or more beyond what the deposit covers. 

In the lease, it says that the tenant is responsible for paying for damages caused by the tenant. There is no clause that says that damage payment will be deducted from rent payment (this is something I will be sure to include in the next tenant's lease). So, how do I get my repair costs covered? Do I have grounds for evicting the tenant? 

The property is located in the state of Virginia. 

Many thanks for any advice!

Oh, and another thing, the tenant had one of their friends call me and yell and accuse me of trying to take advantage of the tenant. Harassment ... ?

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Lynn McGeein
Real Estate Agent · Virginia Beach, VA · Member since 2012 · 2k+ posts · 1k+ votes
10y

 I'm not a lawyer, no legal advice, but if this happened to me, I would ask the plumber who did the emergency repair to write directly on the bill how the pipe was damaged so you have some sort of proof that it was actually damaged and not just an old burst pipe or something, then send the tenant a copy of the bill and request reimbursement for your payment within 30 days along with a copy of the lease terms that show he is responsible for damage he caused.  In the letter, I'd state that future repairs to the laminate flooring resulting from the damage will also be billed once repairs are made; however, this will be based on a percentage, how old the floors are already.  I had a tenant damage carpet after only 2 years, but I couldn't charge the whole cost of the new carpet as it had to be proportional, I think it's 5 years, so they were charged 3/5 and I had to pay the 2/5 part even though I shouldn't have had to pay anything had they not damaged them so I don't agree with that concept.  

You can also plan on small claims court, probably best before the lease ends as then you actually know his legal address.  I went to court with someone whose tenant blocked heat in the laundry room in winter to save money, and while he won a $3000 judgment for damages caused by the burst pipes, but he never recovered anything as the tenant just moved and apparently quit his job and left the state when his wages were garnished.   But I think having everything documented in writing, especially the repair bill showing damage, will help immensely, especially if the tenant does not want a judgment on his record.   

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  • Benjamin Timmins
    Landlord · Utica, MI · Member since 2015 · 190 posts · 99 votes
    10y

    I am not a lawyer, and you should definitely consult one.

    In my non legal opinion

    I would file for eviction do to tenant negligence. It will probably come down to a court fight. At the least you'll be able to get that tenant out and get it fixed before they damage it any more than it already is. As for collecting anything past what you have in the security deposit is unlikely, even if the judge orders it paid.

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  • Scott Weaner
    Rental Property Investor · Yardley, PA · Member since 2008 · 1k+ posts · 561 votes
    10y

    How about not fixing it until his lease expires, evicting, and taking the damage from the deposit?

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  • Gail K.
    Augusta, GA · Member since 2014 · 1k+ posts · 1k+ votes
    10y

    The tenant refuses to allow you to do the repairs because they do not wish to pay for them?  Have you got this is in writing?

    If so; fine.  Consider holding off on the repairs until they vacate the rental unit either through lease expiration or if you end up evicting them for some reason.  Then, as suggested, take what you can out of their security deposit, sue for the rest and discuss with an attorney whether wage or bank garnishment are possibilities in your state.


    Gail

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  • Lynn McGeein
    Real Estate Agent · Virginia Beach, VA · Member since 2012 · 2k+ posts · 1k+ votes
    10y

     I'm not a lawyer, no legal advice, but if this happened to me, I would ask the plumber who did the emergency repair to write directly on the bill how the pipe was damaged so you have some sort of proof that it was actually damaged and not just an old burst pipe or something, then send the tenant a copy of the bill and request reimbursement for your payment within 30 days along with a copy of the lease terms that show he is responsible for damage he caused.  In the letter, I'd state that future repairs to the laminate flooring resulting from the damage will also be billed once repairs are made; however, this will be based on a percentage, how old the floors are already.  I had a tenant damage carpet after only 2 years, but I couldn't charge the whole cost of the new carpet as it had to be proportional, I think it's 5 years, so they were charged 3/5 and I had to pay the 2/5 part even though I shouldn't have had to pay anything had they not damaged them so I don't agree with that concept.  

    You can also plan on small claims court, probably best before the lease ends as then you actually know his legal address.  I went to court with someone whose tenant blocked heat in the laundry room in winter to save money, and while he won a $3000 judgment for damages caused by the burst pipes, but he never recovered anything as the tenant just moved and apparently quit his job and left the state when his wages were garnished.   But I think having everything documented in writing, especially the repair bill showing damage, will help immensely, especially if the tenant does not want a judgment on his record.   

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  • Max T.
    Investor · Philadelphia, PA · Member since 2015 · 3k+ posts · 3k+ votes
    10y

    Most likely you will end up taking the security deposit, and then eating the extra costs. You can try taking them to court for it after the fact and you will probably win, but then you will just have a judgement. It may be difficult to collect. You can write off your losses for tax purposes. Hopefully there are not a lot of other damages.

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  • James Gaither
    Vendor · Pasadena, MD · Member since 2016 · 43 posts · 24 votes
    10y
    Lynn M. 's situation is all too common. Try to collect data on the tenant now-where they work, where they bank, etc., and serve them just prior to vacating (assuming they don't pay up). If you have an attorney's fee provision in your lease, you could even hire an attorney to do the leg work. But understand that you may never collect, so as it concerns any time/money you invest, treat it like its gone. One of the many things I find myself repeating to clients in this situation is to put as much effort as you can into screening potential tenants before hand. If they have a more established rental history, have been employed longer or their employment is stable, the more likely you can collect if something like this happens (and the more likely they are to pay/not damage items so as to avoid this altogether). But sometimes this just ends up being the cost of business no matter what you do. PM me if you have any additional questions.
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  • Joo Chung
    OP
    Frederick, MD · Member since 2016 · 3 posts · 0 votes
    10y

    Everyone, thank you for your input. I will most certainly be consulting a lawyer; later this week, in fact. But you all have helped me gain some perspective, thank you.

    Most of you seem to think that, even if I were to get a judgment against the tenant for reimbursement of damages (beyond the amount of the security deposit), the chance of me actually getting that above-and-beyond amount are slim. Some mentioned the possibility of wage garnishment, but then someone mentioned a case when a tenant avoided even that by quitting their job and skipping town. I'm not going to completely give up on the chance of getting reimbursed fully, but I guess I should prepare myself for the likely possibly that I will just have to write off the un-reimbursed part as a loss.

    There's a small wrinkle which I didn't mention initially. The tenant told me that, after breaking the pipe (by accidentally dropping the toilet cover on it, causing the cover to break in half ...), the tenant didn't know how to shut off the water. About twenty minutes went by before the tenant was able to find a neighbor (the unit is a condo) who found the shut off and turned it off. Now (here's the wrinkle), the valve would not shut off all the way; a small trickle remained. 

    The tenant's contention is that the (floor) damage would not have occurred had the water valve been able to be shut off completely. While this may be true if the valve had been shut off immediately, my contention is that, in the twenty minutes time it took for the tenant to get the neighbor, during which the water was coming out unabated, the damage to the floor had already been done. I asked for the plumber / building engineer's assessment and his agrees with mine (I have this in writing). 

    But to be completely honest, there is a part of me that can see the situation from the tenant's view, and can see how things could be put together into an argument supporting the tenant's position that they are not responsible for the floor damage. But then, this damage never would have happened had the tenant not dropped the toilet cover and broke the pipe in the first place. 

    I had discussed the situation with others outside of this forum, and they had said that I was being too understanding / soft; I had decided on a tougher approach, which is why I put things the way I did in my original post here. But the little wrinkle still bothers me, because there are times when I can see it from the tenant's POV. 

    What do you all think? Am I being too soft? Does the tenant have a valid case? 

    0Reply
  • James Gaither
    Vendor · Pasadena, MD · Member since 2016 · 43 posts · 24 votes
    10y
    If the professionals agree with you, and are willing to testify (written documents of that kind are subject to hearsay objections), then I would stand strong on your original position. It isn't soft to consider the other side-it is the way you should be thinking, especially if you are considering the legal route. But I think you are right on. Just be careful with who you speak with attorney-wise. If the attorney is not explaining the risks, and not giving you their honest expectations (and not well versed in LT matters) consider looking elsewhere. They should be able to talk to you for free. If you are at a loss about who to talk with, give me a shout.
    0Reply
  • Al Wilson
    Investor · Daphne, AL · Member since 2014 · 1k+ posts · 242 votes
    10y
    Legal question, so check with your lawyer.
    0Reply
  • Joo Chung
    OP
    Frederick, MD · Member since 2016 · 3 posts · 0 votes
    10y

    Thanks for all of the replies. The tenant has finally agreed to pay for the damages. What an incredible relief. Although the situation's not over yet, I've learned a lot from it. It's claimed that "pimpin' ain't easy", landlording ain't easy either. 

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  • Account Closed
    Investor · Henderson, NC · Member since 2016 · 484 posts · 208 votes
    10y
    Originally posted by @Lynn McGeein:

    I went to court with someone whose tenant blocked heat in the laundry room in winter to save money, and while he won a $3000 judgment for damages caused by the burst pipes, but he never recovered anything as the tenant just moved and apparently quit his job and left the state when his wages were garnished.   

     It's not that easy to hide from a judgement. It's easy to not collect your judgement if you are lazy. Every state is different of course, but, when you have a judgement, and somebody moves, you basically sue them again in that state to enforce the judgement there. Moving out of state or changing jobs does not prevent your wages and bank account from getting garnished, the best the tenant could hope for is to physically hide from you. It's hard to hide in this day when everybody posts everything to facebook and google knows everything about you. Just pay a couple bucks to one of the internet background search companies, you will likely find their new address.

    Additionally, judgements earn interest, and last for 10 years or more. Again, every state is different, but I have a judgement against somebody that owes me $1800. Right now it is not being paid and I'm not bothering to collect because it is earning 9% interest. I'll get my money when I get around to it.

    I have another ex tenant who technically owes me about $25,000 in rent due to a broken lease. I know he does not have that much money, I could never collect that even if I got every possession he owns. I'm still going to sue him, because he is only 31 years old, and in my state, judgements can be renewed every 10 years. That means 50 years from now, I will still be earning 9% interest, and I can still collect from this idiot if he ever gains any assets at any time in his entire life! If he dies before I do, then I can collect anything left in his estate.

    You could also sell the judgement to a collection company, they often pay something like 50% before actually collecting, and then do all the work for you.

    One more thing - I feel it is important to sue even if you do not plan on getting paid. This way the person has an unpaid judgement on their record, this acts as a warning to anybody who ever might do business with them in the future. (and a good motivator to pay you!)

    The only true way to hide from a judgement is to file for bankruptcy. Nothing else will make it go away if the debtor is persistent enough.

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  • Curtis BidwellPro Member
    Rental Property Investor · Olympia, WA · Member since 2014 · 777 posts · 744 votes
    10y

    @Joo Chung I require tenants to carry renters insurance (naming us as additional insured).  This would be handled through their insurance with no issue.  (Had a dog rip the carpet and insurance was great!  No fights, no struggle.  They put in a claim, we got a bid, received a check and had it fixed as soon as they moved out.  

    I have had tenants do damage and we have gone to small claims with them (small claims are for amounts up to $5k in Washington state).  We have had success with everyone that has shown up to the hearing with amounts ranging from $2k to $3500.  In most cases we take payments. One made payments for almost 5 years! 

    In your case, that amount of water concerns me as to mold issues under the laminate.  I wouldn't delay having it fixed. 

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  • Kevin Prentice
    Residential Real Estate Broker · Beaufort, SC · Member since 2016 · 53 posts · 41 votes
    10y

    How do you get your repair costs covered?  Well, short of.......

    1. He steps forward offering to do the right thing and pay for it
    2. You use your superior powers of influence and convince him to pay for it
    3. You use your negotiating skills to come to a mutually acceptable agreement. This option should be based on the answer to your own question of >>>>> "All, Some, or None".  Only you can decide whether you're Ok with "some" rather than risk the possibility of receiving nothing.   

    If the three choices listed above don't work out then you're stuck with either:

    A.  Stuffing it inside you (the "gunny sack" approach) until one day it comes out sideways and you end up going "Postal".

    B.  You end up taking some type of legal action. Here in Beaufort County, SC, the likely course of action would be Magistrate Court ($80 to file).

    Should you go with "B", then you'll be required to show proof that the tenant did in fact cause the damage due to some wrongful (negligent?) action.  In reading your post you stated the tenant "did admit to causing the pipe to break in other communications".  For your sake I hope his admittance was done in some type of written form. If you don't have anything in writing from him saying he did it....then your case is weakened. Something in writing from the plumber supporting your case would be very much needed.

    As for your floors being replaced, I would not replace the floors until the Lease has been terminated and your tenant has moved out.

    I'm not telling you what to do but..... All things considered, if it was me, I would strongly consider mitigating my loses and get the tenant out asap.  Therefore I would negotiate a mutually acceptable exit agreement.  From my standpoint I would shoot for the following negotiated outcome:

    • Lease is terminated immediately (Note: You will likely be required to provide him with a 30 day written notice....UNLESS, you can get him to agree to a lesser amount of days)
    • Loss of security deposit to mitigate the floor replacement cost. 
    • In exchange.....(so he feels he got something out of this mess and is motivated to get out quickly and not cause any further damage) I would release him from any additional costs associated with floor replacement above and beyond his security deposit amount. AND, you'll spare him the joy of having to face the judge in a court of laws. And lastly, there will be no "parting gifts" for playing.
    • Note: Make sure the tenant understands this agreement does not wipe away the possibility he could still be on the hook for additional deductions/damages to his original security deposit amount resulting from the findings of your property inspection walk-thru after he has vacated the property.  
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