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How to Sue Your Landlord in Small Claims Court

Camila Lopez - Landlord - November 20, 2022

Get Help Filing a Small Claims Lawsuit Against Your Landlord

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Are you currently in the midst of a dispute with your landlord? Consider suing your landlord in small claims court over issues like delayed security deposits, unsafe living conditions, or breach of contract. Small claims courts handle a wide variety of cases against landlords for a low cost. 

In this article, learn about common lawsuits against landlords, how to sue your landlord in small claims court, and more about the small claims process. 

Overview of How to Sue Your Landlord

We often receive the question: Can I sue my landlord in small claims? The answer is yes. Lawsuits against landlords are very common in small claims. 

Most common lawsuits against landlords in small claims: 

  • Security Deposits

  • Unsafe Living Conditions

  • Wrongful Eviction

  • Negligence

  • Harassment

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

  • In most small claims courts, you cannot sue your landlord to force them to do something. For example, if the toilet is broken, you cannot sue them in small claims to make your landlord fix your toilet. 

  • Instead, you are required to sue for an amount of money that you are owed by your landlord. For example, if the toilet broke and your landlord was required to fix the toilet under your lease or state law, but didn’t and instead you had to spend money to fix it, you can sue in small claims court to recover the costs to fix the toilet. 

When to file the lawsuit: 

  • Most small claims lawsuits against landlords are filed soon after you move out.

  • While you can sue while you are still living in the unit, your relationship with your landlord may be strained. 

  • 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. 

Pros of Suing Your Landlord in Small Claims:

  • Assert your legal rights, get your money back, and don’t get taken advantage of. You may also help someone else in the future not get taken advantage of. 

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

Cons of Suing Your Landlord in Small Claims: 

  • Your relationship with your landlord may be strained. 

  • You have to spend money suing your landlord (many courts will waive your costs in you are low-income). 

Common Lawsuits Against Landlords in Small Claims

Security Deposits 

Lawsuits over security deposits are some of the most common lawsuits filed in small claims court

Most of the lawsuits involve:

  • a landlord refusing to return all or a portion of a security deposit

  • Charging a nonrefundable security deposit.

  • Charging for additional damage beyond the security deposit. 

Every state has its own security deposit laws that state when a landlord must return a tenant's security deposit. Further, most of these security deposit laws also state that a landlord can keep some or all of the security deposit but only for certain reasons. Check out our 50 State Security Deposit Guide that breaks down deadlines for when your security deposit needs to be returned to you.

Unsafe Living Conditions 

You can sue a landlord in small claims court over unsafe living conditions or for violating your state’s implied warranty of habitability. Warranty of habitability means that regardless of any opposing lease term, your landlord is required to keep your unit in a habitable condition at all times. What is deemed “habitable” or “safe” depends on the laws of your state. Before you take legal action against your landlord over unsafe living conditions consult with the laws of your state to determine whether your living conditions actually qualify as unsafe. 

The laws on this can be strict, and vary from state to state, however, here are some common examples of what constitutes unsafe living conditions: 

  • Pest infestations. For example, you can sue a landlord if you have repeatedly complained about a rat or mice infestation and they have done nothing to alleviate the problem. 

  • Non-functional or faulty utilities e.g. plumbing, or electrical connections. For example, you can sue your landlord for shutting off your utilities. 

  • Mold issues, or toxic mold. For example, you suffer from asthma and discover mold in your apartment. 

  • Asbestos.

  • No waste disposal, or faulty waste disposal. 

Most of the time when someone is suing in small claims court over habitability claims, they have already moved out of the unit and are suing for rent paid during the time they lived at the unit when it was uninhabitable. If you are still living in the rental unit under uninhabitable conditions, and want your landlord to make repairs so your rental unit is habitable consider taking your case to Housing Court instead of small claims court.  

Keep in mind, many tenant rights attorneys, sometimes handle habitability lawsuits on a contingency (especially cases related to toxic mold). “On a contingency” means that the attorney won’t charge unless you win. Make sure to reach out to an attorney if you have any doubts about your legal claims as an attorney will be able to assess your specific situation. 

Wrongful Eviction

If your landlord wrongfully evicted you, you may be able to sue them in small claims court. For example, if they illegally locked you out or didn’t follow the correct procedure for evicting you. 

Related to evictions, the landlord may have not followed the correct procedures for disposing of the tenant’s property after an eviction.  

Negligence  

If your landlord has violated state health and housing codes, they may be acting negligently and you could sue your landlord in small claims court for negligence. 

As with unsafe living conditions, make sure your landlord has actually violated a state or city housing code before taking legal action. Under many state laws, you will be able to find that landlords have a responsibility to make the unit safe. 

You may also be able to sue your landlord if you have suffered emotional distress or pain and suffering because of your landlord’s reckless or negligent conduct. However, small claims court isn’t the best type of court for suing a landlord for emotional distress. It can be difficult to prove emotional distress, as you normally need a lot of evidence (usually requires an expert witness), and once you prove emotional distress, you will need to prove how much you are owed as a result of the emotional distress (very difficult to calculate). Consider consulting with an attorney for these types of cases as many landlord-tenant attorneys offer free consultations.

How much you can sue your landlord for depends on many different factors. Additionally, the laws surrounding negligent or intentional infliction of emotional distress are nuanced and require you to prove certain elements in court. 

Harassment

Unfortunately, there are cases where a landlord purposefully harasses a tenant in hopes that this will make the tenant move out. First of all, in some states harassment is a crime so consider going to the police if your landlord is harassing you. 

In other cases, tenants who are being harassed and still live in the unit can sue their landlord in Housing Court. For example, if you are a tenant in New York City and your landlord is harassing you, you can go to the New York City Housing Court. If a judge finds that the landlord was in fact harassing you, the court can order the landlord to stop and pay a fine. Remember, in most small claims courts the only award a judge can give you is money, they will not be able to tell the landlord to stop or force the landlord to take any type of action. Depending on what outcome you want from suing your landlord consider Housing Court for your landlord issues. 

Besides suing your landlord for harassment in small claims court you may also be able to file a complaint against your landlord with a government or city organization. 

What To Do Before Suing Your Landlord in Small Claims Court 

Collect All Evidence 

To win a lawsuit against your landlord the most important thing you will need is evidence that proves you are correct and your landlord owes you money. 

Try to collect and save all evidence related to your relationship with your landlord and the dispute at hand. Here is a checklist of potential evidence you may want to save: 

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

  • Receipts or estimates for necessary repairs. For example, if your landlord did not provide you with AC (as per state law or your lease) and you had to purchase your own AC unit make sure to save the purchase receipt.  

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

  • Any correspondence between you and your landlord. 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 Landlord 

In some situations, it may be worthwhile to reach out to your landlord and try to settle the dispute outside of court. One way to communicate with your landlord is by sending them a demand letter

A demand letter is a letter that outlines a set of requests to your landlord and notifies your landlord of your intent to sue if your demands are not met. For example, if your landlord refuses to return your security deposit send them a security deposit demand letter. 

Find a Lawyer to Sue a Landlord 

If you are a tenant and want to sue your landlord over a security deposit, an uninhabitable unit, or a breach of contract, you may be able to sue a landlord on your own in small claims court. The same may be true for your local Housing Court. 

However, as we discussed above, depending on the type of claim you have against your landlord it may be worthwhile to consult with an attorney before taking legal action (especially if an attorney will take your case on a contingency since generally you only pay if they win). When looking for a lawyer make sure to choose one with expertise in landlord/tenant matters. For example, if you want to sue a landlord over a wrongful eviction try to consult with a lawyer that has handled wrongful eviction cases in the past and is knowledgeable about your state’s wrongful eviction laws. 

You may be able to find a lawyer by going on your local small claims court website. There they may have a lawyer directory or connect you with a volunteer legal program. If you think Housing Court is a better option for your particular situation your local Housing Court website may also provide free or low-cost legal help.  

Steps for Suing a Landlord in Small Claims Court

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 

Identify your landlord and find their address: 

  • To prepare to file your small claims lawsuit you will need to properly identify your landlord and find their address to fill out the proper small claims forms. These two things are important because you want to make sure you are (1) suing the correct person, and (2) properly notifying the correct person you are suing them.  

  • Distinguish your landlord from the property management company. We often see people confuse landlords and property management companies. Your landlord is usually the one holding on to your security deposit in their bank account, not the property management company. However, if you have claims against the property management company and your landlord then make sure to include both in your lawsuit.

  • Finding your landlord’s address is not always easy. Generally, you can find your landlord’s name and address on the first couple of pages of your lease. However, this is not always the case and you may need to run an online property search or call the County Tax Assessor. Call the County Tax Assessor's office where the rented unit is located and ask who owns the property and if they have that individual’s address. 

  • Your landlord may be a corporation or LLC. If this is the case search your state’s Secretary of State website. You will need to identify the correct legal name of the corporation or LLC. 

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 and New York City, you can sue your landlord for $10,000. 

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

How to File Your Small Claims Lawsuit 

After you have prepared all the required forms, you are ready to submit the small claims lawsuit to the court. Depending on your local small claims courts you may be able to file your claim:

  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 People Clerk can help you prepare and file your small claims lawsuit against your landlord. 

How to Serve Your Small Claims Lawsuit 

Once you file your case, the next step is to notify your landlord 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 your landlord needs to be served. 

  • 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. 

This information may change from court to court.

How to Prepare for Your Small Claims Hearing

To prepare for your small claims court hearing: 

  • Research the law. Depending on your claim you may need to be well-versed in state or city laws. For example, if you are claiming your landlord refuses to return your security deposit you need to know by when the landlord was supposed to return your security deposit and if you are in fact entitled to a return. You can conduct your own research or consult with an attorney to prepare for your small claims hearing. 

  • Prepare your evidence. Your evidence should be geared towards showing the judge why your landlord has violated a law or owes you compensation for damages. You want to have your evidence organized with titles, dates, and why that piece of evidence is important. For example, if your landlord was required to repair your heating unit and has not done so you need to provide evidence that shows the landlord was required by law or by the terms of your lease to fix the heating unit, that you reached out to your landlord to fix the heating unit, and that your landlord has ignored your requests. Additionally, if you made repairs or purchased a replacement heating unit include purchase receipts or invoices from the repairman. People Clerk 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 landlord. The judge will then turn to your landlord, 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 landlord because he has withheld $500 from my $3,000 security deposit without any valid reason.” 

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

How Else Can I Resolve my Dispute With my Landlord?

Besides suing your landlord in small claims court, consider mediating your dispute with your landlord. Mediation is a meeting between you, the other party, 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. 

Mediation tends to be very successful when both parties have a prior relationship. For landlords and tenants, this tends to be the case. 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 landlord.

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. 


Up next: 5 Mistakes to Avoid During a Small Claims Hearing.

Author

Camila Lopez

Chief Legal Architect & Co-Founder @ People Clerk. Camila is an attorney, consumer advocate, and certified mediator. Her passion is breaking down complicated legal processes so that people without an attorney can get justice.

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