Landlords take several steps to ensure they aren’t out of pocket if a tenant stops paying. For example, you might take a deposit of two month’s rent to recover your losses if your tenant skips rent. In some cases, you may only take one.
But what do you do if your evicted tenant still owes back rent, even after you kept their deposit?
You have the right to take your former tenant to court to recover your lost rent up to a sum of $5,000. However, you need a strategy to be successful.
Here’s what you need to know about using the small claims court to ask for rent.
It’s All About Your Rental Agreement
In an ideal scenario, your former tenant signed a written rental agreement or lease (a contract) that dictated:
- The cost of rent
- When rent was due
- How to deliver rent
- What happens if they failed to pay
Your lease also needs to cover what you expect from the tenant when they move out. This is particularly important for month-to-month tenants. You must specify how much notice they need to give.
These rental agreements aren’t only good business practice. They’re also the key to unlocking your lawsuit.
Without the written agreement, all you have is the oral agreement. While that’s better than nothing at all, it’s less likely to stand up, even in small claims court. The burden of proof is then on you to prove what the tenant owes, when, and how the tenant violated the agreement.
The former tenant can then argue that you didn’t have a standing arrangement for them to pay a specific amount or remain in the property for a set period. If you can’t prove otherwise, the judge could rule in favor of the tenant.
Usually, receipts will help your case without a lease. You’ll also need to provide your business records.
Having a lease is particularly important if you’re seeking back rent from a month-to-month tenant who moved out. If your contract didn’t specify that they needed to provide 30 days’ notice, and they moved out abruptly, then you’ll have a harder time getting back rent.
You should have rental agreements with all tenants, even your month-to-month agreements. If you don’t already have these, make it a priority to start producing them ASAP.
What You’re Owed if a Tenant Breaks a Fixed Term Lease
If a tenant signs a fixed-term lease, they must pay rent for the full-term. There are only exceptions in two cases:
- They left the property early for a protected reason
- You found a new tenant for the rest of their term
It’s your duty as a landlord to find a new tenant for the rest of the lease. You cannot let the property sit vacant without advertising or showing it and continue to pursue the previous tenant for back rent.
For example, if the tenant leaves six months into their contract, then you must look for a new tenant. If you can’t show the court that you advertised and showed the property, you may struggle to collect the entire amount due.
You can, however, ask for rent in the intervening period as well as reasonable advertising expenses.
What You’re Owed if a Tenant Breaks a Month-to-Month Lease
When a tenant breaks a month-to-month lease, they’ll rarely owe any more than a few weeks of pro-rated rent.
In these cases, it’s simpler to keep the security deposit and call it even. The only reason you might sue is if they did serious damage to the apartment (beyond normal wear and tear covered by law), and the deposit doesn’t cover it.
How to Take a Tenant to Small Claims Court
If you’re still owed money, you have the option to take the ex-tenant to Florida small claims court. Once you file the case, you ask the court to force the tenants to pay the debt in full. You can also ask the court to force them to pay interest.
However, the court does not collect the money on your behalf. If the tenant doesn’t pay, you may need to ask an attorney for help.
It’s important to attend small claims court with a solid case. You should have proof that the tenant broke their contractual obligations and owes you money legitimately.
For example, if the tenant moved out of the apartment because they argue that the unit is uninhabitable according to Florida law and refused to pay rent, not only are their actions protected, but you’re also unlikely to win your case.
When Is Small Claims Court a Good Idea?
It’s a bad idea to try small claims court for every dollar you’re owed, especially if you have a portfolio of rental properties.
Taking a tenant to court over one month (or less) of rent is usually not worthwhile. You can write the rent off as a loss on your taxes and be more careful in the future.
Additionally, you don’t want to develop a reputation with the court or in the community as a landlord who’s unfair or who sues thoughtlessly.
If a tenant owes you at least two months in rent or disputes the contract, then a case is usually worth the effort. However, remember that small claims court comes with a maximum ask of $5,000.
Are You Owed Back Rent?
Collecting back rent from a former tenant isn’t easy. In many cases, they didn’t pay because they don’t have the money.
However, other cases are a matter of contract dispute. These cases are worth taking to small claims court to recover your losses.
Do you need help with lease enforcement or dispute resolution? Contact us for assistance with your real estate law needs in South Florida.
