Business Law 101 / COLLECTION OF RENTAL DAMAGES

By Albert L. Kelley

In an eviction action, if the tenant had paid the rent money into the registry of the Court, collection is easy. The Judge will simply direct the Clerk of the Court to send the rent to the landlord. But if the tenant did not pay, the landlord must find a way to collect the money. This is often easier said than done.

Before attempting to collect money, it helps to know what the tenant owns. There are several ways to do this. The Court can order the tenant to prepare a financial statement that sets forth all of their property, money and assets. The landlord can also send the tenant a set of interrogatories-a list of questions that the tenant must answer under oath. If the tenant fails to complete the financial statement or fails to answer the interrogatories, the Judge may hold the tenant in contemp. The landlord can also require the tenant to appear to have their deposition taken. A deposition is an interview before a court reporter. At the deposition, the landlord may ask the tenant to list every piece of property he owns, including real estate, cars, boats, stereos, televisions, jewelry (including wedding rings), paintings, coin collections, furniture, and even pets.   All of this property, subject to few exclusions, may be seized to pay the past due rent. The landlord can also order the tenant to produce bank statements, car titles, IRS filings, and other records indicating worth or property ownership.

Once the landlord has learned what property the tenant owns, it is time to collect.   If the tenant owns real estate (other than a homestead), the landlord may record the judgment in the County where the property is located in order to obtain a lien on the property. The tenant will not be able to sell the property until the judgment is paid off.  If the tenant owns personal property, the landlord may apply for a Writ of Attachment which authorizes the Sheriff to seize and sell the property. There are exemptions from seizure and the landlord needs to know what particular items they can or cannot seize.

When the Sheriff seizes property, a notice is published that the property will be sold at auction. Once sold, the money obtained is first applied to reimburse the Landlord for their expenses, including the Sheriff’s fee. The balance is then applied towards the tenant’s debt. If more money is raised then the tenant owes, the overage is to be sent back to the tenant. If the money is not enough to pay off the landlord, the landlord may then seize more property until the debt is paid off.

While I have tried to make this as simple as possible, in reality it is a difficult process. While it can be done without an attorney, the average layperson should expect to spend numerous hours learning the details of the process.

Another and often more successful option is to garnish the tenant’s wages. If the Landlord learns where the tenant is employed, they can apply for a writ of garnishment. This writ is delivered to the employer, who then has 30 days to advise the Court whether the tenant works for them, how often he is paid and how much he is paid. The employer must then withhold a percentage of the employee’s wages which will be applied against the landlord’s judgment. While this is a very effective method of collecting against a judgment, many tenants are exempt. Garnishment cannot be claimed from a single parent or from a head of household. You also cannot garnish retirement income.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” and “Basics of Florida’s Small Claims Court” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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