Making effective case for damages

How to make an effective case for damages owed to the court against your former tenant

Landlords want to obtain the best result possible when proceeding against a former tenant for damages owed. In order to do so, they need to immediately get to the crux of the matter by laying out what is owed and why it is owed in an organized and efficient manner. This seems like a simple concept but you might be surprised at how confusing some landlords make the process.

The first concept to understand is the burden of proof. A landlord must prove by a preponderance of the evidence (or the greater weight of the evidence) damages to the premises caused by the tenant that are beyond ordinary wear and tear. What is ordinary wear and tear? The concept and its meaning may differ from judge to judge. It is safe to say that ordinary wear and tear is what is reasonable and damage beyond ordinary wear and tear is what is considered unreasonable.

How do you prove damages beyond ordinary wear and tear? The best method is to have photographs of the premises prior to the tenant’s move in and a corresponding set of photographs documenting the condition of the premises after the tenant’s move out. A landlord should focus on items that are generally a problem for tenants including cleanliness of appliances; condition of carpeting/flooring; cleanliness of unit; condition of paint; etc.

How do you present your case to the court of damages against a tenant? I recommend preparing one simple document for presentation to the court.

This document is an itemization of all the damages. An itemization is a listing of each and everything owed by the tenant. It should consist of a few basic categories of damages: (1) unpaid rent; (2) late charges; (3) unpaid utilities; (4) damages beyond ordinary wear and tear; and (5) a credit for the tenant’s security deposit. There may be additional categories but these are the main ones.

As a landlord, you should begin your itemization of damages with what rent is still owing and list the amounts by month. You want the judge to be able to glance at your itemization and instantly understand why you are asking for $2500 in unpaid rent. If you have listed that the tenant has failed to pay March, April, May, June and July rent at $500 per month, then the judge should immediately understand where you obtained your $2500 figure.

Similarly, if you are asking for $250 in late charges, you should list out each month the tenant was late on rent. If the tenant failed to pay March through July rent, then list out each month with a corresponding $50 a month late charge. It should be painfully clear to the judge why you are asking for $250 in late fees.

The same method applies to showing what is owed for utilities. Judges hate large figures with no explanation. You do not want to simply list “Unpaid utilities = $989.24” and submit that to the court. You need to break down what is owed for each month and do so for each utility.

January 2014 – $89.48 unpaid gas bill (see attached Jan. 2014 gas bill);

January 2014 – $53.98 unpaid electric bill (see attached Jan. 2014 electric bill);

February 2014 – $85.23 unpaid gas bill (see attached Feb. 2014 gas bill);

Jan.-Mar. 2014 – $112.32 unpaid water bill (see attached Jan.-Mar. 2014 water bill)

You also need to include copies of the bills. I have seen numerous instances where a judge will require a damages hearing because the landlord did not include a water bill to substantiate their claim for $765.23 in damages for an unpaid water bill. A damages hearing means that you will have to make an extra trip to court to conclude your case. That trip may require you to take off work or change your plans in some inconvenient way because you failed to attach a water bill to your itemization. That is a huge inconvenience for such a basic mistake.

Your next category on your damages itemization will be damages to the premises beyond ordinary wear and tear. In your itemization, include a detailed description of what was done, why it was beyond ordinary wear and tear and the cost for each repair. If possible, you should include pictures of the item before the tenant moved in and after he or she moved out. Have a separate item number for each listing on the damages itemization. When you include documents, invoices, quotes, and pictures to support each listing on the itemization, you should label the corresponding documents/pictures with that same item number.

For example, your itemization may look like this:

Item 3 – Replace toilet seat cover in 1st floor bathroom (cover broken in half by tenant) – cost = $60.

Attach pictures of the toilet before and after the tenancy as well as a copy of the invoice/receipt supporting the charge and label each picture and document as “item 3”. Do the same with each listing on your itemization. If the judge needs to refer to any supporting documentation for a particular charge, it can be easily and quickly done. I’ve included a good example of an itemization that deals with damages to the premises only. A more complete itemization would include all other damages including unpaid rent, late fees and utilities.

If you look at the itemization, you will see how each item number has corresponding pictures. This correspondence results in greater efficiency and quicker understanding of why the landlord made the charges. I would have just included invoices and receipts along with the photographs to further support the damages request.

Finally, you should conclude your itemization with any credits owed to the tenant. The most popular one is for the security deposit. Judges will disregard any request for damages if no indication is made as to where the security deposit went.

Hopefully, these suggestions give you a better idea of how to present your damages case to a judge. Always keep in mind that judges are very busy people and typically want to get to the crux of the matter quickly. Present what is necessary to prove your case in a timely and efficient manner and judges are more likely to rule more favorably in your interest.