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5 Mistakes to avoid when suing your landlord in small claims court
You don’t want to sue your landlord. Your landlord doesn’t want to sue you. And neither of you wants to spend time together in small claims court. But if you’ve done everything you can to work out any problems directly with your landlord, and you still feel like legal action is the way to go, here are five 5 common renter mistakes to avoid in small claims court.
Renter mistake 1: Preparing and filing your lawsuit for small claims court incorrectly
Filing and preparing a claim against your landlord (or any other party, for that matter) isn’t hard, so long as you have taken the time to follow the correct steps.
Here are some tips for renters to prepare and file their lawsuit correctly:
1. Lawsuit forms
Many states have created forms for small claims court lawsuits instead of having to write the lawsuit from scratch. Make sure you go to the website of the small claims court where you will be filing your small claims court lawsuit to review which forms you will need.
2. Court fee waivers
Your small claims court may offer discounted small claims court fees if you are low income or on government benefits. This usually involves completing a few more forms to get your court fees waived.
3. Who to sue?
A common renter mistake to make when preparing their small claims court lawsuit is suing the property manager and not the landlord. The landlord is usually the one holding onto the renter’s security deposit and the property manager is assisting the landlord. Normally your landlord’s name is listed on the first few pages of your lease agreement. Make sure to write the information on your small claims court lawsuit exactly how it appears on your lease.
4. Address for your landlord
You will need to be able to list an address for your landlord on the small claims court lawsuit. Your landlord’s address may be listed on your lease or rental agreement. If you don’t know where your landlord lives, you can usually find this information from the county tax assessor’s office. Call the county tax assessor’s office in the county where the apartment you rented is located, and ask them who owns the property you lived at. The county tax assessor should be able to tell you the property owner’s name and address.
5. Where to sue?
There are thousands of small claims courts throughout the United States. You want to make sure you are suing your landlord in the correct small claims court. Keep in mind that most states don’t allow you to sue where it is most convenient to you, but rather, where it is most convenient for your landlord. Typically, you can sue in the small claims court closest to where the rented apartment was located or the court closest to where your landlord lives. If you moved out of state, you will likely have to sue in the state you used to live (unless your landlord also lives in your new state!).
6. How to file the small claims court lawsuit
Each small claims court has a different procedure on how to file your lawsuit, how many copies you will need, and how you can pay the court filing fees. One way to find this information is to go on the small claims court’s website or give the court a call.
Renter mistake 2: Serving your small claims court lawsuit incorrectly
Once the small claims court lawsuit is filed, you have to notify your landlord that you have sued them. This procedure is called “serving your lawsuit.”
Each state has its own rules for serving. For example, in California, your small claims court lawsuit should be served at least 30 days before your hearing date and you cannot serve your own lawsuit.
Here are the general rules for serving in small claims courts:
- You cannot serve your own small claims court lawsuit, rather someone other than you has to be the one to do the act of serving.
- The lawsuit doesn’t always have to be given directly to your landlord. The lawsuit may be given to someone they live with or someone in charge where they work.
- You may be able to complete the serving using certified mail. In some states only, the court clerk can serve using certified mail.
- You may have to file proof that the lawsuit has been served before the hearing or during the hearing.
- The sheriff may be able to serve your lawsuit or someone licensed to serve lawsuits, a process server, can be hired to complete the serving.
- There are different deadlines for when the lawsuit must be served by, usually, it has to be served with more than 30 days before your hearing date.
Make sure to review your state rules using the different bullet points listed above to make sure you serve your lawsuit currently! Otherwise, you risk the hearing getting rescheduled or the lawsuit may be closed.
Renter mistake 3: Not preparing your evidence for the small claims court hearing
Don’t show up to your small claims court hearing with your evidence in a state of disarray. You don’t want to leave money on the table because you didn’t bring enough evidence to your small claims court hearing or you couldn’t find your evidence during the small claims court hearing. The judge will likely be listening to 10-15 small claims court lawsuits in addition to yours so you want to make sure you have prepared your evidence before the hearing date.
Here are some tips on how to organize your evidence for your small claims court lawsuit against your landlord:
- Make sure you have brought sufficient copies of your evidence to the hearing with you, bring a copy for yourself, the judge, and your landlord.
- Make sure it is all together in a folder or binder.
- Make sure you know where everything is and why that piece of evidence is important. For example, you can add a table of contents to your evidence, page numbers, titles, and descriptions.
- Giving the judge their own evidence packet will allow them to keep it with them after the hearing in case they can’t make a decision on your lawsuit right away. This way they can flip through your evidence after the hearing instead of relying on their memory.
Here are some tips on the type of evidence you may be able to bring to your small claims court hearing against your landlord:
- Pictures or videos.
- Any communications you have had with your landlord relating to the lawsuit (text messages, emails, letters, etc.)
- Witness statements if they are helpful (for example, if someone was with you on the day you moved out, they can describe what they saw the apartment looked like).
- Any receipts or invoices.
You can also check out People Clerk’s evidence packet creator here.
Renter mistake 4: Not anticipating what your landlord will bring up at the hearing
A good exercise before the hearing is to think about what your landlord will bring up at the small claims court hearing. You should have some sense of what they will argue based on your previous interactions with them.
Here are some tips:
- If your small claims court lawsuit is about deductions to your security deposit, what did your landlord tell you when you asked them why they hadn’t returned your security deposit?
- Make a checklist of items you think your landlord will bring up, then write out bullet points of your response.
- Make sure to bring evidence with you that will respond to what your landlord will tell the judge. For example, if your landlord tells the judge that they returned $400 of your security deposit, you can point out to the judge that on your bank statement you see that your landlord only transferred $100 to your account.
Renter mistake 5: Interrupting during the hearing
While emotions may be high during the hearing, please don’t interrupt the judge or your landlord while they are speaking. The judge’s job is to make sure they can give as many people their day in court and the hearing will be slowed down if there are constant interruptions.
Here are some tips:
- When your landlord is telling the judge their side of the story, make sure you write down bullet points of what your response will be when the judge turns their attention to you.
- Use the phrase, “Your honor, may I include something or offer a correction.”
- When the judge is speaking, make sure to look at them so that you don’t accidentally interrupt.
- Avoid “cross-talk” which means don’t respond to what the landlord is saying while it is their turn to speak as you will have a chance to respond to what they said. If the judge would like you to respond right away, they will turn their attention to you requesting a response. If you feel the need to address what your landlord said right away, wait until there is a break in your landlord’s statement, and say “Your honor, may I respond to what the landlord just said or offer some clarification?”
- Make sure to answer the judge’s questions directly. Don’t avoid answering a yes or no question, but rather give a yes or no answer and then elaborate if you need to or ask “your honor may I tell you why I responded the way I did.”
Heading to court is not the outcome anybody really wants, and hopefully, you and your landlord can work together to resolve any differences. If you can’t come to an agreement, and you decided to head to small claims court to get your security deposit back or resolve another issue, make sure you are prepared and understand the ins and outs of the small claims court process. (Here is another article where we cover mistakes to avoid during our small claims hearing.)
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