Rules for suing over back rent, property damage

Rent it Right

Q: We rented our single-family house in California to a family — husband and wife and two children who were over 18. All of our dealings were with the wife, and she’s the only one who signed the lease, though it was understood that all four of them would live there.

We had to give them a pay-or-quit notice, and they chose to leave — leaving us with several months of back rent, plus $5,000 worth of damage that the security deposit won’t begin to cover. The husband has a job, and we think the children do, too, but the wife doesn’t work. Can we sue the husband and kids, even though they didn’t sign the lease? –Steve E.

A: You have two types of claims against this family. One is based on failure to pay rent in violation of a lease clause, which makes it a contract claim. The other is based on damage to the premises, which is a tort claim.

Let’s look at the rent issue first. Because the family has moved out, you won’t be filing an eviction lawsuit (in which you could also ask for back rent). Instead, you’ll have to go to small claims court (or regular trial court, if the amount you’re seeking exceeds the limit for cases in small claims court in your state).

Your claims will be rather straightforward, based on failure to pay the rent agreed to in the lease. You delivered the housing; the tenant failed to deliver the rent. Simple.

And yet … you have only one tenant on the lease. The others were openly living there, with your consent. Ironically, if you wanted to evict, most states would require you to file against not only the "official" resident, but the three others too, because your apparent acceptance of them as permanent residents gives them standing as tenants.

But they don’t get standing unless they want it. And of course, in the present situation, they won’t want to be considered tenants. They’d prefer to be considered long-term guests, who have no legal relationship — and therefore, no obligations — to the owner.

Does this mean that you can’t name the husband and kids in your contract claim for back rent? No; you can at least name the husband in your claim. In California, which is a "community property" state, spouses are legally responsible for each other’s debts.

You could name the husband even if he wasn’t living there, simply because the debt was incurred by his spouse while the marriage was intact. Making the husband a defendant will mean that his salary can be garnished if you win and can’t collect otherwise. But as for the kids, you’re probably out of luck, because they aren’t part of the marital community. They can maintain their status as long-term guests.

Only a handful of states are "community property" states: Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington and Wisconsin (in Alaska, couples can create community property by written agreement). Other states follow the "common law" rules, in which spouses are not automatically responsible for each other’s debts.

However, debts incurred by one spouse are owed by both spouses if the debt benefits the marriage (for example, the debt was for food, clothing, child care, shelter or necessary household items). Because this debt was to house both spouses, it’s likely that in common-law states, too, the husband could be held responsible for the back rent.

Your ability to go after the entire family for the damage is much broader. People who ruin property belonging to others can be sued for the tort of conversion, or the destruction of property. It doesn’t matter whether they are lease-signing tenants, guests, or even the neighborhood hoodlums. So with respect to the damage claims, all of the people whom you think are responsible are potential defendants, regardless of whether their names are on the lease.

Q: We’re dealing with a bedbug problem at our 10-unit complex. The whole building needs to be treated, and most tenants are cooperating. But two households refuse to clean or vacate while we do the treatment. They dispute the need to have a buildingwide approach, and if they do clean and vacate, they expect to be paid. What can we do about this? –Susan G.

A: Good for you for your aggressive response to the bedbug problem. All too often, owners attempt a less expensive approach, trying to treat only selected units even in the face of evidence that the infestation has spread beyond the source. Worse, some have attempted to do the work themselves, using harsh chemicals that do no good and even cause collateral harm.

When an infestation has spread within a multifamily building, it takes cooperation among all residents for the building to be effectively treated. Even innocent tenants, who simply had the bad luck of living next to the source unit, face significant annoyance, if not disruption of their lives.

If their units are infested, they must scrupulously clean and declutter, to allow the fumigators to do their work. Infested clothing and furniture must sometimes be heat-treated to remove the bugs, or even thrown out. All of this is not fun, to say the least. But refusing to cooperate means that the bugs will surely resurface, to everyone’s dismay.

You’re not alone in encountering tenants who feel that an all-out approach is unwarranted or want someone else to pay for the time and trouble it takes to join in the eradication effort. Your first response should be to sympathize but educate; consider sending them to any number of helpful websites that make it clear that a piecemeal approach in a multifamily setting is ineffective. Bedbugger.com is a good place to start.

Landlords and tenants have been tussling over who’s responsible for eradication for years. The law is simple enough: Landlords are responsible for keeping multifamily structures free from such vermin. If a tenant has introduced or otherwise caused the problem, however, the cost of dealing with it can be laid at his door. But with bedbugs, it’s practically impossible to trace the cause of the outbreak.

Consequently, landlords almost always end up paying. But whether they should also pay for collateral expenses, such as those your tenants are demanding, is another matter.

Arizona is currently considering a bill, SB 1306, that addresses these vexing issues. Besides prohibiting the rental of rentals that the landlord knows are infested, it requires landlords to educate tenants on the nature of the problem and the landlord’s and tenants’ legal duties once an infestation is found.

Expenses for treatment are placed squarely on the landlord (though using traditional legal principals, the landlord could still look to a tenant for reimbursement if the landlord believes it can prove that the tenant introduced the problem).

The bill is tough on tenants, requiring them to report in writing any evidence of bedbugs, to allow access for treatment, and to refrain from self-help measures or treatments undertaken by unlicensed persons. Tenants who fail to comply with these rules face the prospect of paying for mitigation costs.

Some tenant advocates have objected to parts of the bill. But it’s hard to imagine how an owner can successfully treat an entire building if some residents balk. To prevent such noncompliance, the law has to have a hammer. True, it’s not nice and not fair to have to turn your life upside down because someone else in the building brought in the critters, but refusal to go along may simply make matters worse for everyone.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.

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