How To Sue A Tenant For Damages

Unfortunately, not all tenant-landlord relationships work out smoothly. When a tenant breaches their lease agreement or causes damage to the property, a landlord may have to resort to legal action to protect their rights and interests.

In this article, we will guide you through how to sue a tenant in small claims court, provide examples of common lawsuits filed against tenants, and more. 

Did you know we have a free tool powered by AI that helps you create a demand letter to your tenant? Check out our demand letter tool.

You can file a small claims lawsuit against a tenant in small claims court. In fact, lawsuits relating to landlord/tenant issues are very common in small claims courts. Here are some quick facts about suing a tenant in small claims court. 

Most common lawsuits against tenants in small claims: 

• Disputes over security deposits (because you have taken the maximum amount of deductions from the tenant’s security deposit, but they still owe more). 

• Disputes over property damage.

• Disputes over unpaid rent or utility bills.

• Disputes over breach of the lease. 

You must list the amount of money you are suing your tenant for: 

• In most small claims courts, you cannot sue your tenant to force them to do something. For example, if they broke a window or door, you can’t sue them in small claims to force them to fix the damaged property. 

• Instead, you are required to sue for an amount of money that your tenant owes you. In the example above, you wouldn’t sue to force them to make the repairs, you would sue for the money needed to hire someone to make the repairs. 

When to file the lawsuit: 

• While you can sue a tenant that is still living in the rental property, be aware that this could lead to a strained relationship between you and your tenant. 

• However, waiting to file a lawsuit may not be a good idea because you run the risk of missing the deadline to file (statute of limitations), and you begin to lose evidence and credibility. 

Pros of filing a lawsuit against a tenant in small claims: 

• You could finally resolve a dispute you have been dealing with for a while. 

• Suing in small claims is relatively quick and affordable (especially if you use JusticeDirect to help you). 

Risks of filing a lawsuit against a tenant in small claims: 

• You could win and still not see the money. Courts don’t help you collect money judgments, they just award you money after you prove your case. It is up to you to collect money from your tenant once a decision is made on your case. 

• Your relationship with your tenant may become strained. 

• You have to spend money to pursue a small claims lawsuit against your tenant. 

Property Damage

You can sue a tenant for property damage in small claims courts. Most state security deposit laws allow landlords to keep a portion or all of a tenant’s security deposit to cover the costs of property damage. However, these laws often state that while a landlord can deduct for property damage, they can’t deduct for “normal wear and tear.” This means that landlords cannot sue tenants just for damages caused by normal wear and tear.

What is the difference between property damage and normal wear and tear? 

• Normal wear and tear refers to the natural deterioration that happens to a property over time due to regular use. Examples of this include scuffed floors, faded paint, and small holes in the walls where pictures were hung up. When determining whether something is considered "normal wear and tear," important factors to consider include the age of the property and how long you occupied it for.

• Property damage is any damage that goes beyond what is normal wear and tear in a rental property due to regular use. This can include things like broken windows, and stains on carpets or walls that are more than what is considered normal wear and tear.

If the cost of property damage exceeds the security deposit and is not covered by it, you may take legal action against the tenant in small claims court to recover the remaining amount needed.

Security Deposits

As a landlord, you can withhold a security deposit from your tenant to cover unpaid rent, property damage, and other breaches of the lease. If the tenant disputes your claim or even sues you for the disputed security deposit, you may need to take legal action and file a small claims lawsuit or countersue for the security deposit.

Before taking legal action, it is important that you review your state’s security deposit laws to make sure you are rightfully withholding or claiming the security deposit. Rules around security deposits can vary by state and local laws, that is why we have created a 50-state guide to security deposit laws.

We also have more in-depth guides on security deposit laws in California, New York, and Texas. 

Unpaid Rent 

Many of our clients want to know how to sue for unpaid rent or back rent because these are very common issues in small claims court. 

Be aware, back rent and unpaid rent refer to slightly different claims:

• Unpaid rent refers to rent that is currently due and has not been paid by the tenant to the landlord. In other words, it's rent that is currently outstanding and needs to be paid as soon as possible to avoid further consequences.

• Back rent refers to rent that was due in the past but has not been paid. It's rent that has accumulated over a period of time, usually because the tenant has failed to pay rent for several months. 

• While both unpaid rent and back rent involve rent that has not been paid, unpaid rent is more immediate, while back rent is a larger amount that has accumulated over a longer period of time. 

• Ultimately, you can sue for both in small claims court just make sure you use the right term when filing your lawsuit so the judge understands what it is you are seeking compensation for. 

Here are some considerations landlords should take before suing for unpaid rent or back rent: 

• Landlords are generally required to provide tenants with notice before taking legal action for unpaid rent. The notice period can vary by state and local laws, but typically ranges from 3 to 30 days.

• If you are trying to recover back rent that occurred during the COVID-19 pandemic, there are likely additional rules and requirements that you should look into before taking legal action. 

• In most cases, you can file an eviction claim against your tenant and sue to recover for unpaid rent at the same time. 

Breach of Lease Terms 

As a landlord, you are able to sue a tenant for breaching the terms of a lease agreement. This is because a lease is a type of contract. When parties sign a contract, they agree to follow the terms of the contract. When one party violates a term in the contract, the other party can sue to recover damages due to the breach.

Here are some examples of possible breaches of lease terms: 

• Your tenant sublet the property without permission.

• Your tenant has unauthorized pets or guests.

• Your tenant is using the property for illegal activities.

• Your tenant terminated the lease early and failed to pay the required early termination fee. 

• Your tenant has failed to pay utility bills per the lease. 

Collect All Evidence

To be successful in your small claims lawsuit against your tenant, you will need to provide evidence proving you are correct and your tenant owes you money. 

Collect and save all evidence related to your relationship with your tenant and the dispute. Here is a list of the type of evidence you may want to save:

• Any written documents between you and your tenant. For example, the lease or rental agreement. 

• Receipts or estimates for necessary repairs. For example, your tenant broke the refrigerator, and you had to buy a new one. If the cost of the new fridge exceeds the tenant's security deposit, you can sue for the remaining amount in small claims court. Remember to include a receipt for the new fridge and a contractor's estimate for the installation cost of the new refrigerator.

• Proof of the amount of rent owed, such as copies of rent receipts, bank statements, or other documentation showing the tenant's payment history.

• Written notices, such as a demand letter or notice to vacate, showing that you have attempted to resolve the issue with the tenant before taking legal action.

• Pictures and videos of the rental unit before and after the tenant moved out. This may be useful if your landlord refuses to return your security deposit in full.  

• Any correspondence between you and your tenant. If your claim is about harassment and your landlord has sent you harassing emails or text messages, make sure to save the messages.

Communicate Directly With Your Tenant With a Demand Letter

When it comes to landlord/tenant disputes, it is recommended that you reach out to your tenant before taking legal action. This is because you and your tenant have a prior relationship and may be able to resolve the problem without resorting to legal action. 

One way to communicate with your tenant is by sending them a demand letter: 

• A demand letter is a formal written document that requests payment or some other action from the recipient. For example, if you are sending a demand letter to your tenant for unpaid rent, you can request rent payments in your demand letter. 

• Demand letters also work as written notices. This is especially helpful for landlords as most state laws require landlords to provide written notice to a tenant before taking legal action, for example, in the case of evictions. 

• Demand letters can also be used as evidence in court if your dispute against a tenant does end up escalating to court. 

Did you know we have a free tool powered by AI that helps you create a demand letter to your tenant? Check out our demand letter tool.

Here is how our demand letter tool works:

Find a Lawyer to Sue Your Tenant 

Before filing a small claims lawsuit against a tenant, make sure you reviewed your legal obligations under your lease or relevant state or local laws. You want to ensure you followed proper procedure before suing your tenant, as this could affect your lawsuit or your ability to win in court. At this stage, some people consider reaching out to an attorney.

Here are some factors to consider when looking for a lawyer to help you with your dispute: 

• When looking for a lawyer, make sure to choose one with expertise in landlord/tenant matters. For example, if you want to sue a tenant over unpaid rent, try to consult with a lawyer that has handled these types of cases in the past and is knowledgeable.  

• Some landlord/tenant lawyers only handle cases where the landlord or the tenant is the plaintiff. For example, you would want to consult with a landlord/tenant lawyer that handles cases where landlords are the ones suing. 

There are generally 4 steps in the small claims process:

1. Prepare the lawsuit. 

2. File the lawsuit.

3. Serve the lawsuit.

4. Prepare for the hearing.

We break down each one of these steps below. 

How to Prepare Your Small Claims Lawsuit 

You will need to fill out the required forms for your small claims lawsuit. This form usually asks you: 

1. Who are you suing? This means you need to know your tenant’s full name and address. If the tenant moved out, you will need to find out their new address. Consider running a google search or run a report called a “SkipTrace” that looks for their information on different databases. 

2. How much are you suing for? Remember, there is a maximum you will be able to sue for in small claims court. This is discussed below. 

3. Why are you suing the other party in small claims court? For example, if you are suing for property damages, you need to state this on the form. 

Decide how much you are going to sue for: 

• Small Claims Limit. Each state has a maximum amount you can sue in small claims for.  This is known as the "small claims court limits." For example, across California you can sue your tenant for up to $12,500, while in New York City, you can sue your tenant up to $10,000. 

• Calculate. You will need to write down a specific dollar amount you are suing for. For example, if you are suing over unpaid rent, you would list the amount of unpaid rent your tenant owes you. 

How to File Your Small Claims Lawsuit 

Once you have prepared your small claims forms, you will need to file them with the court. Depending on your local small claims courts, you may be able to file your claim using one of the various methods below:

1. In person at the small claims court,

2. Online,

3. Mail, or 

4. By Fax. 

Contact your local small claims court to find out which options are available to you. Keep in mind that

JusticeDirect can help you prepare and file your small claims lawsuit against your tenant. 

How to Serve Your Small Claims Lawsuit 

After filing your small claims lawsuit, the next step is to notify your tenant that you are suing them. This is called "service of process" or "serving."

Who can serve a small claims lawsuit?

• NOT YOU. You cannot serve your own small claims lawsuit.

• Court Clerk. The court clerk may be able to serve the lawsuit by mail. 

• Process Server. A process server may be able to serve your lawsuit. A process server is someone licensed to serve lawsuits. This is what they do for a living, so they are pretty good at it. 

• Sheriff. Not all sheriffs serve small claims lawsuits, this will depend on the county where 

• Friend or Family member. You can have an adult friend or family member serve your small claims lawsuit. Make sure they are not part of the lawsuit or aren't involved with what happened with the lawsuit. 

How to Prepare for Your Small Claims Hearing

To prepare to win at your small claims court hearing: 

• Research the law. Depending on your claim, you may need to be well-versed in state or city laws. Some examples we mentioned in our article are security deposit laws, and unpaid rent during the COVID-19 pandemic. 

• Prepare your evidence. Your evidence should be geared towards showing the judge why your tenant owes you compensation for damages. You want to have your evidence organized with titles, dates, and why that piece of evidence is important. JusticeDirect can help you organize your evidence in a judge-friendly evidence packet.

• Prepare what to say. During the hearing, the judge will ask you why you are suing your tenant. The judge will then turn to your tenant, and ask for their side of the story. Start by addressing the judge as “your honor,” and from there, explain in a clear and concise manner what the dispute is about. For example, “your honor, I am suing my tenant because they have failed to pay rent for the last two months.” 

• Print enough copies of all your evidence. Make sure you have enough copies for yourself, your tenant, and the judge. 

Learn about the 5 mistakes you should avoid making during your small claims hearing. 

Another option you have to resolve a dispute you have against a tenant is mediation. Mediation tends to be very successful when both parties have a prior relationship. For landlords and tenants, this tends to be the case. 

• Mediation is a meeting between you, the tenant, and a neutral third person called a mediator. 

• Mediation is an effort to see if the parties can come to a mutually agreeable solution or settlement.

• If you reach an agreement during mediation, you will be able to close your lawsuit. The agreement can be for the same amount of money being claimed in the lawsuit and can involve other non-monetary agreements between you and your tenant.

• Depending on your local small claims court, you can choose to participate in mediation prior to the hearing as part of the small claims court process, or you can try to find mediation programs outside of the court. 

Did you know we have a free tool powered by AI that helps you create a demand letter to your tenant? Check out our demand letter tool.