Law Offices of Heist, Weisse, and Wolk, P.A.
Are you on our
Legal Update List?
Subscribe Button


The resident moved out, and you or your maintenance staff begins the fun process of repairing all the damage, painting, replacing carpet, replacing kicked in doors, repairing door frames and filling holes where your resident decided to practice the sport of boxing. The kitchen is an absolute wreck, requiring a deep clean taking hours, and the refrigerator shelves are either broken or missing. The bathroom has deep mold where every bit of caulking ever existed, and the floor is severely stained due to standing water or whatever else. I need not go on, you get the picture.

Should You Sue the Resident? Will You be Sued?

Residents who leave the rental premises in deplorable conditions usually are judgment proof. It would be absolutely ridiculous to spend any serious time or money trying to go after persons like this. Most managers know this, but many still insist on filing a small claims court case and pursuing a judgment. If a manager is local and has time on their hands, usually there is not much harm in filing a small claims court case, and there is little expense if no attorneys are involved. Unfortunately, the manager may have no choice in the matter and be the one who gets sued! There is no doubt that the manager will retain the entire security deposit in a situation in which damages meet or exceed the security deposit amount, and many times, the resident will seek to get the security deposit returned to him or her.

The Seriousness of a Small Claims Court Case

Most managers have no idea how serious a small claims court case can become. The manager may file the case on his own, and the resident hires an attorney who invariably files a counterclaim, meaning the manager now is suing and getting sued at the same time. The prevailing party may be awarded attorney’s fees. This means that if the resident wins and has an attorney, the manager may end up having to pay thousands of dollars in attorney’s fees to the resident’s attorney. The amount of attorney’s fees the judge may award has absolutely no relationship to the amount of the dispute. You could easily have a $5000.00 attorney’s fee award when the dispute was about a $500.00 security deposit, and the judge felt you overcharged by $50.00.

The Proof You Will Submit in Court

Daytime court television shows probably do the most serious injustice to the court system and lead people to believe that this is indeed how court “works”. While some judges in small claims court do indeed play fast and loose with the evidence of the parties, most judges follow the laws, and this means the rules of evidence are followed. Most managers will have a stack of bills and receipts which they think they will use to convince the judge that the resident damaged the property. Sounds reasonable. After all, why would the manager have spent all this money if the resident left the place in good clean condition with no damage? It would seem to make sense that the judge will look at the bills and receipts, and this will help you convince the judge that you indeed were harmed by the resident and should be entitled to keeping the security deposit or getting a judgment against the resident.

The Bills and Receipts Problem

Ready for the big surprise? Bills and receipts cannot be submitted as evidence in court to PROVE the resident did the damage. Bills and receipts are what is known as “hearsay” and CANNOT be used to prove the resident did the damages.

What is “Hearsay”?

Most people think hearsay means that when someone tells you something, you cannot use that statement in court. This is partly true. If I tell you that “John stole the car”, you cannot go into court and say that “Harry told me that John stole the car”. Why? Because if I am not in court with you, the defendant will have no way of cross-examining me. This means that what you are saying is “hearsay”, and the judge cannot listen to this, and it will not be used as evidence in court. Now on the other hand, if I were also a witness in court, and you told the judge that Harry told me that “John stole the car”, I can be called up to the witness stand and be cross-examined. The statement will then be admissible into court.

Other Examples of “Hearsay”

Besides just statements by people that cannot be cross-examined in court because they are not in court, there are other things which are considered hearsay.

  1. Affidavits. Many property managers get the repair people and vendors to sign an affidavit, get it notarized, and then they think they can show it to the judge. It does not work; it is hearsay, because the vendor or repair person cannot be cross-examined in court.


  1. Witness Statements. Getting 5 statements signed by people who observed the damages would seem like compelling evidence in court, but again, it is hearsay, unless the person or persons who signed the statements are in court.


  1. Estimates. No good. Hearsay, unless the person who wrote up the estimate is in court and based the estimate on personal observation.


  1. Bills. This is the classic mistake of the manager. The stack of bills cannot be admitted into court to prove that the resident damaged the property, unless the person who did the work is there in court, and a witness which can be cross -examined.


  1. Police reports. There are times where properties are so severely damaged that the police are called in to write up a vandalism report. Hearsay again, unless the law enforcement person who wrote up the report is in court with you.

Is there any value to bills, invoices and receipts?

While they cannot be used to prove damages, they can be admitted into court to prove what something cost you, and if you have proof of payment, they can be used to prove that you paid for something like the supplies, the vendor, and the repair person. This certainly limits the usefulness of your bills, invoices and receipts, BUT will help your case in court; if you make it clear to the judge that they are being admitted as business records to prove what you paid.

Our Recommendations

If you end up in small claims court involuntarily, i.e. you have been sued; call your attorney as soon as possible. Don’t wait until the last minute when the chances of settling the case are seriously jeopardized. If you decide to file a small claims court case on your own, take the time to talk to everyone who worked on the premises to make sure that they will be there with you in court. You can subpoena these people as well and hope they come to court, but you don’t want to have an angry carpet cleaner who had to kill 5 hours waiting in court with you. Examine your evidence carefully, and try to put yourself in the judge’s seat for a moment and ask, will my evidence and testimony completely convince a judge that the property was not damaged when the resident moved in, and was in a damaged state when the resident moved out? Then expect the resident to come up with all kinds of lies and stories to make you look like the bad guy.


  • The Curable Noncompliance Examined PART 1