Will I be able to sue a former tenant after termination?

Question

I rent out an old duplex in MA and our tenant's dog have been an absolute nightmare for the past 6 months, pooping and peeing on floors, basically using the kitchen and upstairs bedrooms as toilets. This will likely result in thousands in damages to tens of thousands if everything with urine from subflooring to joists have to be replaced.

The tenant signed a termination agreement (I haven't signed yet) agreeing to leave as soon as possible. However, due to the high amount of damages that won't be fully covered with the security deposit, I am thinking that it is worth it to sue for the damages after the tenant has left.

However I have a mutual release clause in the termination agreement:

On the Termination Date, Landlord and Tenant shall be fully and unconditionally released and discharged from all claims and obligations arising out of the Lease Agreement.

Is it a mistake to put this clause in if I am planning on suing after the tenant leaves? Can I still sue for pet damages if there is such a clause on the termination agreement? Is it even worth it? If I can sue, how should I go about doing so? Been a landlord for a few years now but never had problems get so bad that I needed to sue.

Let me know if any additional information from the lease or termination agreement is needed. Any help will be appreciated. Thanks!

Nathan Gesner · Answer

You should never sign such an agreement. You never know the full extent of damages until the tenants are completely out so I wouldn't even sign this type of agreement with a good tenant.

In your situation, I wouldn't have any written agreement. I would start by serving them a Notice To Cure Or Quit that says they have XX hours (or days) to clean up, repair the damages, and pass another inspection or they can choose to vacate. They are unlikely to fix anything and will hopefully leave, at which point you can renovate and then sue them for damages. If they refuse to leave, then you start the eviction process and pursue removing them and getting a judgment for the renovations.

Steve Hall · Answer

@David Deng

This is why many landlords don't allow pets, like @Thomas S.

The expense and down time for this repair is your cost for this hard-learned lesson. If you said NO PETS, then that would be different. Then you could evict them once you discover that they had pets, instead of have to thy the "termination agreement" method.

So now you are stuck trying to get them out.  I would NEVER draft any document releasing myself from the ability to make a claim. Instead my document would say that the tenant is released from any early termination fee (sort of like cash for keys), however tenant shall remain liable for any and all damages.

Be sure to send any required security deposit notice if your state requires it, and then keep the money. Keep any pet deposit as well. If the amount of damage beyond that is less than $3,000, you could try a small claims suit, but I can tell you that your odds of winning are low. (They will most likely try to get you to settle for something in mediation) and even IF you prevail, your collection on your judgment is unlikely to be successful. Hiring a collection agency, just gives away 50% of the judgment.

Another option, mentioned in this thread, is to charge the tenant a fee while continuing to allow them to rent there. Such an added fee would be due and payable as rent. If it were not paid, then you could evict.

Will I be able to sue a former tenant after termination?

2 Replies