paying debt collector&#39;s invalid rent claim, then suing landlord for money back TLDR: terminated lease after continued upstairs noise, landlord sent debt collector, trying to decide if should pay debt collector and sue landlord for money back. We had been renting an apartment in Massachusetts. For over a year, we had trouble with our upstairs neighbors' noise which got worse until we couldn't sleep more than 3-5 hours at night (we have thoroughly documented these issues and our requests to the landlord to resolve them). After this lead to degraded performance at work, we obtained legal consultation which advised us to terminate the lease since the landlord did not provide a safe and habitable environment (State Sanitary Code, 105 CMR 410.00) which we did. The landlord, a property management, did not agree with this, did not refund us our security deposit despite no issues with the apartment, and wanted us to pay the rent until they find a new renter which we declined. We think they also did not immediately advertise the apartment as for rent as it did not show up on their website. After some months, we were contacted by a debt collector, asking us to pay two months of rent. We told them the claim was invalid for the reasons stated above, but they said they will report the claim to credit agencies as disputed. We don't want this issue to adversely affect our credit and got legal consulting which suggested we should pay the debt collector to protect our credit score, and then sue the landlord for the money back in small claims court. I'm a little worried about this strategy since it requires to hand away the money first, and am trying to get second opinions.
We don't want this issue to adversely affect our credit and got legal consulting which suggested we should pay the debt collector to protect our credit score, and then sue the landlord for the money back in small claims court. I'm a little worried about this strategy since it requires to hand away the money first, and am trying to get second opinions. The debt collector is probably either the owner of the claim against you, if it is an assignee of the claim, or an agent of the landlord for purposes of collection. Thus, payment to the debt collector is equivalent to payment of the landlord. The law varies from jurisdiction to jurisdiction regarding whether payment constitutes of waiver of a right to sue over the debt. Sometimes it is necessary to designate the payment "under protests" or "reserving all rights", but that is not a uniform rule of law that applies in all jurisdictions, and I do not have the time and familiarity with that state's law to research Massachusetts case law on that point accurately.
I am an Ontario-licensed lawyer. The following is a general information about the law and not specific legal advice. You are not my client and I have not given you advice related to your circumstances. First, even when you ask a generic question, define the jurisdiction of interest. For the purpose of your question, Canada is a collection of different jurisdictions with different rules. My answer relates to Ontario, Canada. Other Canadian jurisdictions have different rules. The Law The applicable Section 109 of Ontario's Residential Tenancies Act http://canlii.ca/t/33p is reproduced below for your convenience. EMPHASES MINE. Receipt for payment 109 (1) A landlord shall provide FREE OF CHARGE to a tenant or former tenant, on request, a receipt for the payment of any rent, rent deposit, arrears of rent or any other amount paid to the landlord. 2006, c. 17, s. 109 (1). Former tenant (2) Subsection (1) applies to a request by a FORMER TENANT only if the request is made within 12 months after the tenancy terminated. 2006, c. 17, s. 109 (2). Regulation Ontario Regulation 516/06 http://canlii.ca/t/sjx dictates minimal form: Receipt A document constitutes a receipt for the purposes of section 109 of the Act if it includes, at a minimum, (a) the address of the rental unit to which the receipt applies; (b) the name of the tenants to whom the receipt applies; (c) the amount and date for each payment received for any rent, rent deposit, arrears of rent, or any other amount paid to the landlord and shall specify what the payment was for; (d) the name of the landlord of the rental unit; and (e) the signature of the landlord or the landlord’s authorized agent. O. Reg. 516/06, s. 9. Landlord Compliance A good landlord will provide receipts immediately upon payment, and keep a copy. An very good landlord will provide additionally a summary of payments for the year, in tabulated form, and keep a copy of the yearly receipt instead of the multiple receipts for each payment. An excellent landlord will keep the tabulated information in a computer system and will issue a receipt for the whole tenancy period on termination. Keep a copy. Tenant's Application If your Ontario landlord refuse to comply with the above, file a T2 http://www.sjto.gov.on.ca/documents/ltb/Tenant%20Applications%20&amp;%20Instructions/T2.pdf *A T2 can also be filed online. Remember to ask for cost http://www.sjto.gov.on.ca/documents/ltb/Interpretation%20Guidelines/03%20-%20Costs.html
If you want to be argumentative about it, the burden of proof is on the person making the accusation. This also means the burden of production is, too. Underlying the whole matter is a claim that you've engaged in &quot;breach of contract,&quot; namely failing to pay rent. Your legal obligation is to not engage in contract fraud nor breach of contract. You are to exercise due diligence in resolving any breach of contract. You may ask the lessor to provide evidence in support of the claim while admitting that you have difficulty looking that far back into the issue. The idea here is to &quot;work with&quot; the lessor rather than immediately taking an adversarial stance. Normal people become very disgruntled by those taking an immediate adversarial approach rather than seeking to work with the other person to resolve the dispute.
You can read about your rights as a California tenant at http://www.dca.ca.gov/publications/landlordbook/catenant.pdf This is rather ridiculous: 1) No judge will evict someone for paying rent by mail. (I assume you have the new landlord's address.) 2) If the landlord cashes the check you mail then he's not going to be able to claim you didn't pay the rent. If he actually refuses to cash your mailed check then that's all to the good for you. 3) You can ignore any requirements imposed by the new landlord that aren't in the lease, just as the landlord could ignore any new requirement imposed on him by you. Even some terms in a lease can be ignored, because not all terms in a contract are legal. (This is especially the case in tenant-landlord law.) If you think there will be trouble then use certified mail.
There are two separate questions here, it seems to me. First: are law enforcement officers required to respect your house rules and avoid making a mess? At least in the United States, the answer is unequivocally no. If the only "damage" suffered is that you need to sweep the floor, or put your clothes back in drawers, that's not the police's problem. You have not suffered any damages that a court is going to reimburse, and your best case scenario, even if you win a suit against the police, is an award of one dollar as nominal damages. Second: are law enforcement officers required to reimburse you for any physical damage they caused while executing the search warrant? The answer here is tricker, and depends on the search warrant. If the warrant is invalid, then the answer is yes. But remember: just because, for example, the cops are looking for the guy you bought your house from, who moved out a month ago, that doesn't mean the warrant is "invalid." Just because the cops got a bad tip, or suspected you wrongly, or were in some other way wasting their time--as long as the warrant is technically proper and they were able to convince a judge it was reasonable, the warrant is valid. Even if the warrant is invalid, you may need to sue the police to get anything reimbursed. If the warrant is valid, in practical terms, you will almost certainly need to sue the police to recover anything, and you will have to show the Court that the police's actions that damaged your property were so extreme that they were outside the reasonable scope of the warrant. For instance: the warrant is for a large item, like a stolen car: the police cannot smash holes in your walls to make sure the car isn't hidden inside. If they're looking for drugs, they may be able to. If the officers' actions are consistent with the scope of the warrant, then you are not going to recover anything. The warrant is, basically, permission from a judge to enter your home and perform those actions, and they will not be liable for them. A number of relevant cases are discussed in this article: http://www.aele.org/law/2010all01/2010-1MLJ101.pdf
The easiest way would be to hire a collection agency to collect the debt (for a fee of course), because collection agencies routinely include debts that they are collecting in credit reports. Credit reporting agencies differ in what other kinds of debts they will report. Recording a judgment lien in real property records will trigger a credit report entry with some agencies, but not others. Some agencies report all judgments entered in courts, but others don't. You could also contact a credit reporting agency and ask it if it will simply report your judgment without further action if you send them a copy.
They almost surely have no liability to you for the loss of, or damage to, your property, as the standard rental agreement that you signed almost certainly relieves them of this responsibility. If you have insurance (even though you didn't provide them with proof of insurance) that would probably cover your loses. If not, you are probably just screwed and have no recourse.
Is this even legal? Yes, it is lawful. The Ontario Tenancy Act does not seem to outlaw that type of clauses. But the clause (or lease) will be binding only if you agree to it. Also note that the clause refers to reasonable costs, which implies that those costs must be for a reasonable cause. In other words, the landlord would be barred from recovery of legal expenses if you persuade the Board that the landlord's complaint is frivolous or vexatious. Notwithstanding that the clause is lawful, I would personally discourage you from agreeing to pay the adversary's attorney fees. Note that the clause may apply in the event that neither party fully prevails, whence it is in your best interest to preclude the risk of having to reimburse the landlord in that scenario.