Timeframe to notify tenant of damages exceeding deposit

[lakeside29]

What is the name of your state (only U.S. law)? Michigan - I know the law in MI* pertaining to damages coming out of Security Deposit. My Q is about notifying and suing for damages that exceed the deposit.
Though my tenant refused to pay last month's rent and in writing voluntarily forfeited the Security deposit to cover it, I intend to send the normally required Notification that unpaid rent was deducted from the security deposit, leaving zero to return. However, there are damages exceeding the security deposit - late fees, legal fees, unpaid utilities - not things that a new tenant could be alleged to have caused as time goes by, but fixed provable expenses during tenant's occupancy. There is also about $250 in damages caused by tenant as well. I don't yet have the repair and cleanup receipts as job is not finished. As I read the law, the 30-day timeframe relates to protecting tenant's money by making landlord prove any claims against the deposit. It's not concerned with an account of all damages, just those coming from the security deposit. Normally when sending this form you calculate any money still owing and call it a bill, but I want to limit the content to how the deposit was used. A bill will be ignored completely as tenant has a free attorney so I must direct things through him but he refuses to respond.

In Michigan you have up to 6 years to file a claim of damages (not specifically landlord/tenant case) so would like to file a claim in the future but it will be outside the 30 days. Why later? because Tenant's free attorney made threats to countersue for false allegations (which would never hold up) if we went to court to collect. I'm out of town, so travel & legal fees would make it unfeasible at this time. I was advised that judges in this economic climate are tending to be lenient even when tenants clearly violated their lease.

Does anyone know if I'm correct about the 30-day rqmt just being for keeping the security deposit? and what is the timeframe for suing for the other expenses/damages? I don't want to risk having tenant's free attorney contest a list sent to them and drag me to court right now.

(*Landlord must send Tenant itemized list of damages assessed against the Security Deposit w/in 30 days of moveout:
- if you dont comply - [url=http://tiny.cc/qwwxu]
-you have 45 days to sue tenant to keep deposit if tenant disputes accounting [url=http://tiny.cc/9amru]What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?

 

[Gail in Georgia]

Was the entire security deposit used for owed rent? Sounds like it was.

If so, this is what you document in your statement to the former tenant. The important issue is that the tenant receive this information before the required time period in Michigan (and frankly, I'd be sending this to the tenant, not his free attorney).

There is nothing stopping you from filing a lawsuit later for damages. However, if you wait too long there is likely to be a question as to whether these were important enough that you waited a significant period of time to address them via a lawsuit.

In addition, be careful on what you are claiming as late fees. If your tenant was consistently late with the rent but you ACCEPTED the rent minus the late fees, it will be argued that you waived these late fees and should not now be claiming them.

Gail

 

[lakeside29]

Thanks, more info

Thank you Gail. Yes, tenant was consistently late and no fees were previously assessed, but for last month, there was written notice of late fees sent certified. Unpaid rent alone eats up deposit. Lease had separate clause specifically advising that deposit may NOT be used for rent, which tenant signed but then violated by refusing to pay rent and saying 'use deposit'. I engaged an attorney for a short while who sent written notice to tenant that rent must be paid and late fees would accrue daily on unpaid rent.

It is the belligerant free attorney who is fouling the normal collection process. Tenant denied access to the rental for inspection, repairs or showing until it was vacated, delaying the re-rental, and refused to pay rent or commit to a moveout date, and when notified these were lease violations, threatened lawsuit for harrassment for merely contacting tenant. In desperation I engaged an attorney who called tenant to attempt a resolution, but tenant was rude and hung up. The next day her "attorney", apparently a personal friend, contacted me to say all contact with tenant must cease because it was emotionally upsetting. I ended my legal representation once tenant finally vacated because my costs got so high-- now tenant's attorney refuses to engage with me (hung up the phone and won't answer email). He previously instructed me to not contact his client directly but go through him on this matter, but then he won't talk to me - when am I free from that directive which puts me in a Catch 22?

His defense is that tenant is broke and he seems without ethics as he threatened retaliatory suit to allege false claims. I am out 1-2 month's rent after the deposit is applied, another month's rent in legal fees, along with unpaid utilities and actual cleanup and repair costs. It doesn't seem right that an attorney can stonewall like this and prevent me from seeking lawful damages but he could be a real problem in the courtroom. I'd like to work out a payment plan for even a few $ per month, but don't want to risk him suing me. In theory this tenant is collectable and garnishable but with a free experienced lawyer who apparently has some relationship to former tenant, it's not so easy to enforce the lease.

 

[Gail in Georgia]

Ignore this friend who claims to be an attorney. Wouldn't it be wonderful if everyone who owed money could simply tell creditors not to bother them because it was too "emotionally upsetting"? What this so called attorney is trying to do is frighten you or wear you down so that you'll simply go away on this issue.

Send the information regarding the status of the security deposit to the tenant within the required time frame. If you do not know the tenants current address, send it to the last known address (the rental property) and, if not forwarded, collect the notice and keep it, unopening in your tenants files in case they later claim you did not provide them with this information.

Then take dated pictures of the damage above normal wear and tear, repair these, and, if you do know where this tenants lives or works (so they can be served), begin the process of suing them for the cost of such.

Do not bother attempting to work out a payment plan with the former tenant. Do not attempt to contact them except as stated above. Work only through the court system.

It is likely that if you do decide to sue this person, they will likely file a countersuit because, after all, what have they got to lose doing so. So what?

Gail

 

[lakeside29]

Thanks. the "so what" part is that (a) I live in another city and (b) my legal costs to travel and appear in court to sue or defend are NOT free and (c) my own former attorney indicated there was a serious risk factor in that other attorney is loud and aggressive and would make the tenant appear a victim, and that judges are currently going not awarding landlords what they're due per contract but leaning toward favoring tenants if there is a plea of economic distress.

 

[Gail in Georgia]

Then, it appears, you need to decide whether it is worth your time and trouble to consider suing this person.

Keep in mind that winning is judgement is no guarantee you'll ever see a penny of this money. Some who lose a judgement voluntarily pay what they owe; some slither off into the night, hoping the creditor (you) will simply give you.

However, you have mentioned the former tenant is "garnishable" which implies they are working and wage garnishment is an option in Michigan. They may not be quite the destitute person they claim to be if they are working:

Self Help: Garnishment

Gail

P.S. Loud and aggressive attorneys tend to piss judges off.