Real Estate Law (esp. Landlord-Tenant)/Another Rental Question

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QUESTION: I am in SC and have a tenant who has not paid the rent in months and now owes almost $5,000. I live 200 miles away from the rental property. I want to evict him and garnish his wages.

Can you please tell me what steps I need to take? Do  the eviction proceedings need to be filed and held in the city of the rental property?

I'm unsure how to calculate the late fees for the missed monthly rents. The contract states that he is to pay $15 if rent is received after the 5th of the month. So is it $15 only once for each missed rent or $15 per month for each missed rent? For example, he never paid February's rent so do I charge a flat $15 or do I charge $75 to cover the missed 5ths in March, April, May, and soon June?

If the court orders his wages garnished, would he be able to cheat me out of the money he owes me by filing for bankruptcy? If I can get him to sign a contract stating that he owes me this money and that the debt is not subject to bankruptcy terms and still valid, would it hold up in court? Is there a way to phrase the contract so that he can't dissolve the debt even if he files for bankruptcy? Is it possible for me to challenge any bankruptcy filing attempt he makes? Will the judge allow me to have any voice in the matter? He would only be filing to get out of paying me.

The locks will need to be changed because of the eviction. Can I claim the locksmith fees as part of the debt he owes? If he and his wife abscond instead of waiting for the sheriff to toss them out, how do I go about having his wages garnished? I want to recover as much of the back rent as possible and need to know if there's anything I should try to get him to sign before I file for eviction. There's a small possibility he might sign a contract to string me along but I don't know what clauses to make sure are included. He's not bright but he and his wife are apparently old hands at the eviction process while I know very little.

I appreciate any advice you can give me.

ANSWER: Hi Terry,

You should check SC landlord/tenant law here:

http://www.scstatehouse.gov/code/t27c040.php

Each state is different, and I am not familiar with the laws for SC. However, you'll probably need to sue in the jurisdiction where the property is located. You may also be to sue wherever the contract was signed. Look at your rental agreement and see what is says about jurisdiction/venue.

BK usually delays an eviction and will make it harder, if not impossible, to collect unpaid rent. I almost always tell my clients not to expect money out of an eviction, even if the tenant does not file for BK. If the tenant had money, they probably would have already been paying you. The primary goal of an eviction is the get the tenant out!

Thanks for your question.

David Piotrowski
Attorney at Law
http://www.AttorneyDavid.com

*No Attorney/Client Relationship and No Legal Advice -

Nothing contained herein is intended to be, nor shall be, legal advice. The above information is not intended as a solicitation and is not intended to be legal advice.  It is your responsibility to seek out competent legal advice from a qualified legal professional before making any decisions relating to your issue.  The hiring of an attorney is an important decision and should not be made based solely on advertisements.

---------- FOLLOW-UP ----------

QUESTION: Thank you for your prompt reply.

I understand that I will probably never collect the unpaid rent but I still need to know the late fees and locksmith answers to properly fill out the paperwork in small claims court. I also need to know whether to bother trying to get him to sign a contract. Will such a contract benefit me later?

For your convenience, I listed the questions again:

I'm unsure how to calculate the late fees for the missed monthly rents. The contract states that he is to pay $15 if rent is received after the 5th of the month. So is it $15 only once for each missed rent or $15 per month for each missed rent? For example, he never paid February's rent so do I charge a flat $15 or do I charge $75 to cover the missed 5ths in March, April, May, and soon June?

If I can get him to sign a contract stating that he owes me this money and that the debt is not subject to bankruptcy terms and still valid, would it hold up in court? Is there a way to phrase the contract so that he can't dissolve the debt even if he files for bankruptcy? Is it possible for me to challenge any bankruptcy filing attempt he makes? Will the judge allow me to have any voice in the matter? He would only be filing to get out of paying me.

The locks will need to be changed because of the eviction. Can I claim the locksmith fees as part of the debt he owes?

If I can't collect the money I'm owed, I at least want the debt on record and to tie his hands legally as much as possible so that it's more difficult for him to prey on his next victim's kindness. I have since learned that he and his wife take turns being evicted and SC will not allow unlimited bankruptcy filings so sooner or later, his scam won't work anymore. I want it to be sooner rather than later.

Thank you for any help you can offer.

Answer
Terry,

You should contact a SC attorney for more detailed answers as these questions may very well be state-specific. You have to carefully review your contract to see what it says in relation to late fees and how they are calculated. If the tenant files for BK, a contract stating that the contract is not subject to BK will probably not be valid.

You should be able to include the cost of a reasonable locksmith fee in a small claims suit.

Please contact a SC attorney for more specific answers.

David

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David Piotrowski, Esq.

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My landlord/tenant practice primarily assists California landlords with all aspects of the landlord/tenant relationship including leases, contract violations, non-payment of rent, and evictions. I can also advise, on a more general level, other real property issues.

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Please visit http://www.AttorneyDavid.com or http://www.facebook.com/david.piotrowski.attorney for more information on my practice.

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Juris Doctor (JD) and Member of the State Bar. Attorney.

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