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I own a two family home. I live downstairs and the tenant lives upstairs. Three months ago my tenant lost her job and has been late on rent. I've been working with her by giving her extra time and waiving the late fee. She has yet to pay this months rent.
Well...today I get a summons and complaint served to me with the tenant as the plaintiff. Plaintiff is claiming that the apartment is uninhabitable due to mold that is growing in the air ducts and the ducts have never been cleaned. I had to read the complaint a few times because I couldn't believe she was pulling this.
Problem is...I do not have "air ducts" in my home. Never have. I have baseboard heating and no central AC. I've lived here for 53 years (since birth) and my grandparents owned it before I purchased it from them. The home was built in 1872.
How do I prove in court that I do not have, nor never had...air ducts? She claims to have had an inspector come and look at the air ducts and take mold samples that came back positive.
I own a two family home. I live downstairs and the tenant lives upstairs. Three months ago my tenant lost her job and has been late on rent. I've been working with her by giving her extra time and waiving the late fee. She has yet to pay this months rent.
Well...today I get a summons and complaint served to me with the tenant as the plaintiff. Plaintiff is claiming that the apartment is uninhabitable due to mold that is growing in the air ducts and the ducts have never been cleaned. I had to read the complaint a few times because I couldn't believe she was pulling this.
Problem is...I do not have "air ducts" in my home. Never have. I have baseboard heating and no central AC. I've lived here for 53 years (since birth) and my grandparents owned it before I purchased it from them. The home was built in 1872.
How do I prove in court that I do not have, nor never had...air ducts? She claims to have had an inspector come and look at the air ducts and take mold samples that came back positive.
Most small claims court have a way to counter sue. Go after her for the rent due and to evict her.
If it actually gets to anything like a trial take a few pictures of your heating system. The difference is irrefutable.
And whatever you do immediately evict her. And make sure the rental services know.
have you tried asking a lawyer to see what they say?? this is one reason I won't play the woe is me crap. your nice enough to this her to let the rent slide and she pulls this ****!!! I hope you win!!
It's a ploy to delay eviction. I think you need an eviction lawyer for this one.
If your court date is soon, and you don't want to deal with hiring a lawyer for advice (if they can't represent you in small claims court where you are), I agree you should counter-sue. You could just show up in court, show that she's never complained about mold, just say that you have no ducts, that she's been late so many times, and you've even waived late fees, and you think this is a ploy to avoid eviction. Then ask the judge if it's legal to go ahead and file eviction now.
You could hire a building inspector/contractor to give you a written statement that there aren't any ducts, if you feel it's necessary, too.
Judges aren't stupid people.
You have the right to see the documents she has from the supposed mold inspector. Ask her for them in writing, then check this guy out. If she refuses, then show the judge that you asked for proof of this inspection in writing, so that you could vet this supposed inspector, and she did not comply.
Forget the air duct, the mold is the main issue. You likely have to hire a licensed professional to inspect her unit to make sure there is no mold problem.
Even though she is wrong on the air duct, she can still claim mold, "Oh, Your Honor, I didn't know those baseboard thingy is not called air duct. My bad, but whatever it is called, there is mold there."
At this point the judge will look at you and ask,"Defendant, what do you have to say?" You whip out an inspection report that says there is no mold. Case close.
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Forget the air duct, the mold is the main issue. You likely have to hire a licensed professional to inspect her unit to make sure there is no mold problem.
Even though she is wrong on the air duct, she can still claim mold, "Oh, Your Honor, I didn't know those baseboard thingy is not called air duct. My bad, but whatever it is called, there is mold there."
At this point the judge will look at you and ask,"Defendant, what do you have to say?" You whip out an inspection report that says there is no mold. Case close.
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Some victory. Any reasonable mold inspection is going to come in above $1500. That is one of the reasons you can be pretty sure the tenant does not have one.
You will quickly go crazy if you take these things seriously.
Couple of things:
1. You need an attorney to make sure you don't make any mistakes. Also ask your attorney of they can represent you even if it means petitioning the court to remove this from small claims to superior court. If they represent you or it's moved to superior court, make sure you are documenting all the expenses for when you sue the tenant.
2. As bepOp and NMSFM stated, you need your own independent inspection. You should be able to sue the tenant if there is no mold. Forget the terminology and concentrate on the habitability issue being raised.
3. Walk carefully on any eviction until this is settled as case law may protect a tenant from eviction once they raise a habitability issue.
Couple of things:
1. You need an attorney to make sure you don't make any mistakes. Also ask your attorney of they can represent you even if it means petitioning the court to remove this from small claims to superior court. If they represent you or it's moved to superior court, make sure you are documenting all the expenses for when you sue the tenant.
2. As bepOp and NMSFM stated, you need your own independent inspection. You should be able to sue the tenant if there is no mold. Forget the terminology and concentrate on the habitability issue being raised.
3. Walk carefully on any eviction until this is settled as case law may protect a tenant from eviction once they raise a habitability issue.
I normally find you one of the rational folks on these things. But you want the guy to go in what $3,000 to throw out a bad tenant? Seriously?
Some victory. Any reasonable mold inspection is going to come in above $1500. That is one of the reasons you can be pretty sure the tenant does not have one.
You will quickly go crazy if you take these things seriously.
The landlord is being sued. If ever there is a time to take these things seriously, this is it.
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I normally find you one of the rational folks on these things. But you want the guy to go in what $3,000 to throw out a bad tenant? Seriously?
You have to use the right mold inspector (which means not just some person picked from the phone book) who usually is referred to by the attorney. In most cases, the inspector will get a copy of the tenant's inspection report before conducting their independent inspection. If no tenant report or its all fluff, the landlord's inspector knows exactly what they need to do. It's usually a much lower cost because they never really perform any inspection (unless the mold report is legitimate which opens a big can of worms) but is unfortunately, the price to be paid for being a landlord and defending yourself in court. Remember, if there is no mold and/or the courts side with you the landlord, you sue the tenant for all expenses related to the false claim in a civil court action.
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I hope you win!!
