After Eviction, Should a Landlord Sue for Past Rent?

November 25, 2013

Landlords usually come to me for help for two things: (1) getting possession of their property through an eviction and (2) getting paid the past rent that the tenant owes them.

While getting possession of the property is always worth it, the question of whether to sue for past damages is a little more complex. Ultimately there are two simple questions that must be considered from the very beginning. If you answer “No” to either of these questions, you should consider cutting your losses and moving on without taking legal action.

First: Do you have a valid claim?

Based on the facts and law, you need to know how likely a judge is to agree with you and award a judgment for past rent in your favor.

Two: Can you collect from the defendant?

Even if the facts and law are on your side, if the defendant doesn’t have money to pay a judgment, it may not be smart to file a lawsuit. You’ll have to pay your attorney and you may not get anything back at the end of the day.

If you cannot answer “Yes” to both of these, you may want to move on. It does you no good if you have an excellent claim that a judge would agree with, but the defendant is judgment proof and will never be able to pay you. A judgment in this situation probably isn’t worth the paper it’s printed on.

Keep in mind that the eviction itself–regaining possession–is different. As long as the old tenant is in the property, you cannot collect rent from a new tenant. As a result, you should always try to regain possession of the property as soon as you can, even if you cannot collect past rent due from that tenant.

About Gideon Alper

Gideon Alper
Gideon is a Florida attorney that focuses on gay adoption, LGBT estate planning, and second parent adoption.

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