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When you can and can’t sue your landlord
Understand your tenant right’s and when to take action
Going to court is stressful, often expensive, and frankly, it should really be your last resort. However, if you believe you need to pursue your rights as a renter and are trying to figure out next steps, you have three options — you can sue in court, settle out of court or file a small claims case. We’ve outlined some information below that can help you assess your options, consider the costs and (hopefully) find a path forward.
Tenant/landlord lawsuit guide: Should you sue or settle with your landlord?
|Issue||Sue, settle or other?||Explanation|
|Your apartment is uninhabitable||File a complaint or sue||If conditions are extreme, like toxic mold or crumbling infrastructure, you may have grounds to sue for enough money to make it worthwhile.|
Another option is to file a building complaint with the local authorities. A city inspector will investigate the complaint and assess a fine and/or requirement to fix by a certain date.
|Your landlord refuses to make repairs||Settle||In most cases, these repairs are minor, and the legal costs associated with suing would be too much, so it’s best to try to talk to your landlord about it.|
If you have a rent board in your city, you could request a hearing. This process is meant to be tenant-friendly and is conducted without lawyers.
|Your landlord owes you money||Settle||In most cases, these are out-of-pocket expenses that you want reimbursement for. Since they are small amounts, it makes more sense to talk to your landlord.|
|Not giving back your security deposit||Sue||If your landlord refuses to return your deposit and cuts off communication (“ghosts” you), then you may have no recourse but to sue to get your security deposit back.|
|Illegally keeping a portion of your security deposit||Depends||If your landlord claims that you damaged the apartment, or that you have unpaid utility bills or other, they may keep part of your deposit. If they only keep a small portion, then a lawsuit or effort to take them to small claims court may cost you more.|
|You slipped and fell due to a safety issue on the property||Sue||If you injured yourself on your landlord’s property and it was their fault, you have grounds to sue, and could potentially walk away with a significant reward.|
|You were unlawfully evicted||Sue||Your landlord evicts you from the property for reasons not spelled out in the lease, against the local housing laws or without following the proper legal procedures. Often, a lawsuit may be your only recourse to reclaim your belongings and collect damages.|
|You’re a victim of housing discrimination||Sue||You were treated unfairly on the basis of race, color, national origin, religion, sex, familial status, disability or the perception of any of these characteristics. If you feel you have a case, a lawsuit could be the right avenue for you to pursue.|
|Entering your property illegally||Settle||Except in cases of an emergency, your landlord needs to give you notice and reason to enter your property, but unless they do something shocking while in there, you likely won’t have a lucrative case to bring to court.|
|Your credit was used illegally to deny you or require a cosigner||Varies by state||The ways your landlord can use your credit score after accessing it vary from state to state.|
|Your lease includes illegal clauses||Settle||There are a number of clauses that may end up in your lease that are illegal, such as making you responsible for all repairs or other state-specific matters. These are typically low-value lawsuit targets, so settling is usually best here.|
|Your landlord is charging you extra fees not documented in your lease||Settle||Your lease is a contract, and you’re expected to adhere to all the (legal) clauses in it. If your landlord tries to charge you additional fees that aren’t covered in the lease, it’s often modest amounts, and it makes more sense to talk to them rather than bringing them to court.|
How attorneys decide to take your case to sue or not
Just because you have been wronged, doesn’t mean an attorney will take your case. Most attorneys representing tenants against landlords do so on contingency payment — meaning they only get paid if you win. Thus, for all practical purposes, they will only take a case when your chances of winning are good.
Here are two ways to improve the likelihood of an attorney representing your case:
- First, have good documentation including images if applicable. Document everything that went wrong and organize your facts before you talk to an attorney.
- Second, check your lease agreement for a clause that says, “prevailing party to recover their attorney fees.” This means that your attorney fees are 100 percent covered if you win. For example, if your award is to recover a repair is only worth $10,000 it won’t be enough to cover attorney fees too. This clause is in about 50 percent of all leases and makes sure your landlord pays for your attorney fees if you win. If you don’t have this clause in your contract, then payment defaults to your state rule.
“One of the hardest things to do is to tell a potential client that we can’t take their case even though we think their landlord wronged them and they deserve to win. We work primarily on contingency, so we only get paid if we win. That means we’re looking for the best cases. But “best” doesn’t always mean clear liability or large damages. We look for cases with clear documentation of the facts – e.g., pictures of a flood, emails asking the landlord for repairs, and receipts for out-of-pocket expenses. We also consider whether the client can recover attorney fees. If the lease allows the prevailing party to recover their attorney fees, that might convert a marginal case into a very good case.”
— Alex Merchant, Attorney with Elke & Merchant, LLP.
Pros and cons of suing your landlord
If you have a legal reason to sue your landlord, suing still may not be the best option. Carefully think through the pros and cons of the potential case before you file your suit.
- Potentially forcing a settlement: Your landlord doesn’t want to go to court either. Sometimes the notification of your intention to sue is enough to motivate your landlord to settle.
- Getting the money you are owed: If you’re owed money and you win your suit, the court will rule that your landlord must pay you immediately.
- Receiving damages: Depending on the laws in your state and the nature of the case, you may be eligible for damages in addition to the money that’s owed to you. For example, if your apartment is uninhabitable and your landlord failed to correct the situation after multiple requests, you could be awarded damages for pain and suffering.
- You could lose: Deciding to sue your landlord is not a guarantee of victory. You can go through all the hassle and expense of a lawsuit and still lose.
- It’s expensive: Not only do you have court costs and filing fees to pay, but you have to pay your attorney as well.
- Countersuits: Check your lease agreement. Your landlord may file a countersuit against you and if you lose, you could also be responsible for their court costs, attorney fees and damages.
When to settle directly with your landlord vs. suing
Where possible, it’s a good idea to try to settle with the landlord outside of court. That way, you and your landlord are in control of the outcome, assuming you can reach an agreement. Unless you have a large settlement dispute, the legal fees could far outweigh the award of money and damages.
So, study up. Read Renters Rights and your state Landlord-Tenant laws to know what the penalties are for your state. For example, if you cleaned your oven when you moved out but still had a hundred dollars wrongfully deducted from your $500 deposit for cleaning the drip pan, you can use the penalties as leverage. If the landlord failed to give you a refund statement within the time prescribed by your state (e.g, 30 days) of vacating and intentionally withheld the deposit, you can seek 1-3x the deposit amount, depending on your state. Let’s say your state allows for 2x the deposit. Your landlord may not want to risk owing you $1000 instead of $500 and may agree to settle rather than take the risk.
If the total expected award is not more than a certain amount, many tenant-landlord attorneys won’t take your case. It is not worth their time because your award (assuming you’re successful) won’t cover their fees.
Small Claims Court: Taking your landlord to court
If you can’t settle and the conflict is too small to justify an attorney, then small claims court may work for you. This option is available to you and doesn’t require a lawyer.
- First, find out your state’s limits to how much you can sue for — it typically ranges between $2500-25,000 and how long you have to file (usually 2-15 years depending on the state).
- File your complaint with the local clerk in your courthouse. You will need to describe the charges you are making against your landlord and bring documentation. There’s usually about a $50 filing fee.
- Within 30 days of filing the landlord (defendant) needs to answer the complaint.
Even if the amount your landlord owes you is small, and suing with an attorney doesn’t make sense — you might be able to sue in small claims court and get the money you are owed. Small claims court is meant to proceed without attorneys and it is the easiest way to handle the majority of conflicts. For example, if your dispute is under $5000, then it doesn’t make sense to pay attorney fees.
Examples of renter issues with large award potential
|Personal injury||If you’re hurt on your landlord’s property (say, you slip and fall on the porch that they neglected to shovel and salt), you can pursue a personal lawsuit against your landlord.||$3,000-$50,000 depending on circumstances|
|Inhabitability||Property that’s not safe to live in, such as a place with dangerous mold.||Typically, the difference between the fair market value of your place and the rent you’ve been paying|
|Housing discrimination||Landlords cannot discriminate against you for reasons of race, religion, disability, sex, age or national origin.||It varies, but it could be thousands or tens of thousands of dollars.|
|Illegal eviction||Your landlord must follow a specific set of steps (which differ by state) in order to evict you from the premises. If they don’t, you may be able to sue.||Varies by state, but you can receive an amount per day you’re removed from the property.|
How much does a landlord-tenant lawyer cost?
1. Contingency Fee
If you’re filing a lawsuit over a landlord/tenant dispute that could result in a large settlement or court award, your lawyer will charge a contingency fee. Under this fee arrangement, you don’t pay anything upfront, but you agree to pay a certain percentage of the award. Percentage fees can vary, according to Lawyers.com, they typically are about 30-40 percent of the payout, depending on the complexities of the case.
Most landlord-tenant lawyers bill clients by the hour (usually in 10- or 15-minute increments). The average minimum we found was $225 per hour, while the maximum was $450 per hour. You may also need to pay a tenant attorney by the hour in the case of needing a review or advice such as on a settlement agreement.
3. Free consultation
Many landlord-tenant attorneys will offer a free consultation of 30 minutes or less to help you decide if you have a case or need representation.
Tenant/landlord lawsuits are tricky
If you have a legitimate dispute with your landlord, you likely have a right to sue. You deserve to get what’s owed to you, whether it’s your security deposit or damages from unsafe conditions. But there are steps you can take first, like trying to talk to your landlord or seeing if a lawsuit is worth your time and money. If you do determine that a lawsuit is the right way to go, then be sure to consult an attorney. Your lawyer will be invaluable in confirming if a lawsuit is a good idea and will help you proceed. We hope you don’t end up in this type of situation, but if you do, explore your legal rights and find a way to settle your dispute with your landlord or property management company.
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