Legal Advice/opinions?

[birchy]

So.. I hadn't posted this on here to date because I don't want to sound like I'm looking for a pity party.. (wasn't that long ago that the 4Runner was stolen). But.. most recently.. we've had to move again because of an accident by our former upstairs tenants.. I'll try my best to give the Coles notes version:

 

Saturday, February 14 we come home to a flooded basement suite. Turns out the tenant upstairs somehow overflowed their bathtub. Fine, accidents happen. Called the management company to start getting things dealt with. Restoration company comes.. damage is severe enough that the ceiling and carpets need to be completely replaced. We have to move out for "anywhere from a couple weeks to a couple months" as per the restoration company's supervisor lady. Eventually we find out that the upstairs tenants to do NOT have tenants insurance, therefore the physical damage to the place has to go through the owners insurance.. and our living expenses for having to live in a motel in the meantime need to go through our insurance. Later on, the restoration company found mold in our bathroom, which immediately voided our lease, and we used that opportunity to get the heck out of that situation!

 

So I raised hell with the management company that it's absolutely ridiculous that the upstairs tenants caused the accident, but OUR insurance has to pay for it. Didn't get much support from them. We can't afford the deductible so our insurance company basically absorbed the deductible by subtracting it from the amount we were entitled to, and giving us a check. I need to ask the question, but it doesn't seem like the insurance company wants to go after them for the money. He made the comment that "these types of things can sometimes take YEARS".

 

Anyways... long story short, we're looking to get some financial compensation for this whole situation. I delivered a letter to the upstairs tenants back in March asking them to pay us for the deductible (sure the insurance company absorbed it.. but it was taken from what we were entitled too). Not only that, but now we have a claim on our file from something we didn't cause. I'm also asking for lost wages at work for the time we had to take off to meet with people to get things sorted for both my wife and myself. A couple weeks back I stopped in to ask for any 'updates' and he told me "no updates, and I'd like for you to give me your receipts". So i'm thinking he's going to try and weasel his way out of this.. So I got letters written up by our insurance company and both our employers. I then looked online and researched small claims court - which suggested that before sueing, you should write up a "written demand letter" that gives an amount and a due date. So I wrote up the new letter, saying basically "we want this paid in full within 2 weeks (keeping in mind they've already had ~1 month)".

 

Now.. we're waiting patiently HOPING that they'll just pay us and we can be done with the situation. However.. IF they choose not to pay us, we're thinking that we'll most likely take them to small claims court. In talking to a few people, we're basically being told that "if you take them to court, you might as well go after as much as you can!" I.E. - moving expenses, utilities hookup fees, extra gas travelling to/from the motel we had to stay in, etc. Then basically tell them.. "you can pay us this much, or we'll take you to court for THIS much."

 

So.. does anyone have any experience with small claims court? Is it worth the hassle? Am I being completely unreasonable for expecting some financial compensation for this whole inconvenience (keep in mind we have a toddler as well)?!

 

Any suggestions?

[Nick0Danger]

Have you tried legal aid? They can give you advice, such as can you go to small claims and if so how best to go about it. That is the only awnser i can give you and you still dont have to pay a lawyer and its just a phone call.

[Weedy1]

First off, talk to as many lawyers as you can for free.

Secondly, I'm guessing you will have to prove negligence on his part in small claims court. Are you able to do this? If not, I think you're pretty much screwed.

 

I sued a guy in small claims court that wrecked my car. It was one of the most exhilarating experiences of my life. Mind you I had a good case, spent many hours preparing for it, and set up one of his witness' to lie in court. Then the Judge slapped their pee pees. It was absolutely hilarious.

 

If you like arguing you'll love small claims court. Just make sure you can win the case before wasting valuable time.

 

 

[birchy]

Have you tried legal aid? They can give you advice, such as can you go to small claims and if so how best to go about it. That is the only awnser i can give you and you still dont have to pay a lawyer and its just a phone call.

 

My wife mentioned that she "thought there was some place you can call that will give advice", but we weren't sure who/what. Good to know. Thanks!

[birchy]

First off, talk to as many lawyers as you can for free.

Secondly, I'm guessing you will have to prove negligence on his part in small claims court. Are you able to do this? If not, I think you're pretty much screwed.

 

I sued a guy in small claims court that wrecked my car. It was one of the most exhilarating experiences of my life. Mind you I had a good case, spent many hours preparing for it, and set up one of his witness' to lie in court. Then the Judge slapped their pee pees. It was absolutely hilarious.

 

If you like arguing you'll love small claims court. Just make sure you can win the case before wasting valuable time.

 

Yes. I suppose I left out some important details with the Coles notes version.

 

After a week or two.. the girl upstairs verbally admitted to overflowing their tub to both my wife, and the management company.

 

My mom-in-law is a secretary at a lawyers office in BC and feels that we have a VERY good case.

[Castuserraticus]

If you go to small claims court you will learn a great deal about the legal system. It's unlikely you'll be satisfied with the results. As my lawyer friends say, "A good judgment pisses both sides off."

 

Even if you get a favourable judgment, the likelihood of payment is low. Enforcing payment is a long difficult process.

 

[126barnes]

So I raised hell with the management company that it's absolutely ridiculous that the upstairs tenants caused the accident, but OUR insurance has to pay for it.

 

Thats what happened when my rental property (duplex) had a sewage blow out. Myside blew out causing damage to the ajoining home, all damages to the ajoining home were cover by their insurance who inturn sued my insurance who inturn raised my insurance premiums. The kicker is the other property owners had a insurance preimum hike too due to the claim. In the end insurance companies won, and we got the poop cleaned up.

 

Just like property stolen from vechiles coved by your home owners policy. one claim to the auto policy for damage to the vechile, one claim to the home owners policy for the thief and two rate increases due to double claim for one break-in.

 

 

[126barnes]

Forgot to say, check your policy. On my policy after damages exceed $10000 the deductable is waived, funny how the insurance company didn't voluinteer that info.

[birchy]

If you go to small claims court you will learn a great deal about the legal system. It's unlikely you'll be satisfied with the results. As my lawyer friends say, "A good judgment pisses both sides off."

 

Even if you get a favourable judgment, the likelihood of payment is low. Enforcing payment is a long difficult process.

 

Yeah.. that's the impression I got when reading through the "process" on the Alberta Civil Court website.

[LynnF]

We took someone to small claims court on a slam dunk (written proof, verbal proof etc.) and won our judgement plus interest plus costs (plus she never showed so we got a default judgement). Getting payment is another story...I filed the judgement at PPR so I could sieze property or garnish wages if I so chose to and put a lien on her house (but I would have had to wait for her to sell it, or the bank to repo it as it turns out). You have to be prepared to put in time and paperwork to enforce payment - that's the most painful part of the process in my opinion. In the end I wound up threatening her with government investigation into her flea market business vis a vis knock off goods and income tax evasion. Check came 2 days later.

 

If you have an open and shut case and lots of proof (the guy admitted they overflowed the tub!), then pay your $100 filing fee and have at it. That's all you have to lose. And sometimes even just the threat of it is enough to make someone come to their senses - especially when they know they're gonna get hung in the long run.

 

Oh ya....I should mention that I tried being "Mrs. Nice Guy" for almost 2 years trying to get this money owed to us. Nice guys finish last....or in our case, they win.

[TerryH]

...........or garnish wages ............

 

GRAMMAR/SPELLING POLICE ALARM

 

to garnish: add parsley to plate

 

to garnishee: attach someone's property/wages to someone else via a court order

 

:) Terry

 

 

 

 

[jimbow]

lynn nailed the issue. you can win in court but still have to collect the money. not always an easy thing to do especially if they don't have any assets (or skeletons in the closet to use as leverage).

 

so after all the time put in on the court side you're faced with as much time trying to collect....not a pleasant situation to say the least....

 

[orvisonly]

There are a number of steps you should take prior to proceeding to court.

 

While this may appear to be a simple case, it involves more than two parties. You, your neighbors, the landlord, and at least two insurance companies. Perhaps even the fawcet manufacturer (The admission of guilt will be retracted - "While my daughter thought she had left the water running, she had in fact turned off the tap, but the tap continued to leak water, resulting in an overflow of water. The overflow protection on the tub did not function because the landlord had failed to maintain it..."

 

Your best approach is probably to pursue the landlord as he/she would have the best ability to pay and a vested interest in keeping you as a tenant (a change in tenants would cost him/her more than $500). The landlord has likely already recovered a damage deposit from the other tenant as well.

 

If you are looking for free advice, you're unlikely to get it from a lawyer. The faculty of law at the University of Calgary has a program where law students provide pro-bono legal services. That would perhaps be your best hope.

[birchy]

There are a number of steps you should take prior to proceeding to court.

 

While this may appear to be a simple case, it involves more than two parties. You, your neighbors, the landlord, and at least two insurance companies. Perhaps even the fawcet manufacturer (The admission of guilt will be retracted - "While my daughter thought she had left the water running, she had in fact turned off the tap, but the tap continued to leak water, resulting in an overflow of water. The overflow protection on the tub did not function because the landlord had failed to maintain it..."

 

Your best approach is probably to pursue the landlord as he/she would have the best ability to pay and a vested interest in keeping you as a tenant (a change in tenants would cost him/her more than $500). The landlord has likely already recovered a damage deposit from the other tenant as well.

 

If you are looking for free advice, you're unlikely to get it from a lawyer. The faculty of law at the University of Calgary has a program where law students provide pro-bono legal services. That would perhaps be your best hope.

 

Thanks for the reply orvisonly.. definitely makes sense. Another friend suggested that we go after the management company instead of the tenant as well. It's just that, to date, they've been very uncooperative and often downright condescending to us. I'm 95% sure they'd do the same if I go and demand money from them. But.. definitely something to ponder. The management company did tell me that they told the upstairs tenant to pay both our deductible and the owners, however I have no real proof of that other than their word.

 

As far as retracting the admission of guilt.. I can see your point. At the same time, the plumber that came purposely filled up their tub upstairs to make sure the overflow was working properly - it was. The only way it could have overflowed the way it did was by being on "wide open" for awhile. Perhaps I could request him as a witness if it got to that point? However, I'm sure they could think up some other bogus excuse.

 

I'll look into the U of C thing for sure.

 

PS - It's "faucet". Sorry.. I couldn't resist!

[LynnF]

GRAMMAR/SPELLING POLICE ALARM

 

to garnish: add parsley to plate

 

to garnishee: attach someone's property/wages to someone else via a court order

 

:) Terry

 

 

ohhhhh....so burned. Nice one.

[polegrl]

The legal clinic at U of C is Student Legal Assistance (403-220-6637).

 

Just like Calgary Legal Guidance, Student Legal Assistance is geared towards low income individuals. Before taking on your case, you will be grilled on your net worth down to car, bank accounts, assets of value. I forget what the threshold is...I seem to remember it being something like $24K.

 

While the reaction to sue the party with the deepest pockets is always most palatable...your remedies against the management company/landlord are likely limited. Check out the Residential Tenancies Act and the terms of your lease. It seems like your lease was frustrated (no longer in a condition that could be lived in). It also sounds like your lease had a termination clause applicable to the frustrating circumstances which kicked in. Bottom line, big picture - in a frustrated contract the parties are freed from their obligations. The tenant is entitled to recover monies paid for the lease for which the tenant did not get to enjoy (ex. you paid the month's rent but only occupied premises for 15 days). In a terminated contract - parties walk away from the contract in accordance with the termination provisions of the lease. Sure...you can argue the landlord/management company had a duty of care to you which it failed to meet and seek damages. However, as other posters have commented...it all turns on facts...landlord will argue that the other tenant was the cause of your damages.

 

As for going against the other tenant - you are going to be alleging that the tenant was negligent (a tort - a civil wrong doing). Read up on the law of negligence and consider the law of nuisance as well (although the ability to argue nuisance really turns on facts). There are lots of online resources that explain direct and consequential damages in tort matters. Your success in obtaining things like lost wages, etc. will turn on the foreseeability of those damages.

 

Small claims court is truly the people's court. The judge is not going to expect lay people nor does the system require people to argue legal principles as if they were appearing before a judge at Queen's Bench. First, familiarize yourself with the legal principles. Prepare a detailed statement of facts along with all supporting documentation. Be prepared to connect the dots in how your facts relate to the legal principles.

 

As other posters have commented - success in small claims court is not difficult. It's the enforecement of a judgement that can be very difficult depending on the circumstances.

[toolman]

Here's my perspective, Birchy...Take the hit and walk away. Life's too short and there's no pot of gold at the end of that rainbow. It sucks, but it could be worse. Go fishin'...be happy!

[reevesr1]

Note to self:

Never get into a disgreement with polegirl.

 

[SanJuanWorm]

Note to self:

Never get into a disgreement with polegirl.

 

 

Yes I do know her. DONT get into a disagreement.

[Guest Sundancefisher]

I have an older buddy who owns a few rental properties. Just as a retirement investment. Anyways...he rented out to a family he thought seemed nice. They stiffed him on the first two months rent and he went over to see them. When he got there he could see the place inside was torn apart. He entered the house, noted the damages and then proceeded to kick them out. Took a while and then they sued him. The judge "took pity" on the poor family and believed their side of the story that the house was a dump when they moved in and that he entered illegally. The judge let them keep all the rent they should of paid, gave them back their deposit and ordered him to pay "damages" caused by them having to move (moving costs, relocation expenses). Even though he had photos...the judge did not believe they were from the same time frame.

 

When you think you have a clear cut case...beware.

[birchy]

Got this letter in the mail today..

 

Greetings Birches,

 

I much enjoyed your letter. The first thing I enjoyed was "since you've already had a number of weeks to pay we expect payment of the full amount…" I was waiting for the insurance bill. You are welcome to sound like a collection agency, but I don't think you have that standing.

My understanding is that had I had insurance it would have paid your deductible, and no more. If that is not the case I wasn't aware.

I came back from retreat to discover that this had happened. I subsequently found out that you wanted me evicted. I normally would have sat down to discuss other expenses with you. However, not under these circumstances.

I am sending you a check for $X today, and will send another for $X in 4 weeks. If you want more you can try sueing us of course.

*name removed*

 

Of course if you name your son noah… Just joking.

The only problem anyone should really be upset about is whether they are ready for death.

 

 

Thoughts?

 

On the one hand.. i'm a bit irritated with the attitude.. on the other hand, he's giving us a good portion of the money we asked for so I don't want to push it too much. We will most likely accept this amount and let it go.

 

Side Notes:

 

- we did not try to get them evicted. We read through our lease and found 3 clauses that they broke. Assuming they would be evicted, we told the management company that we'd be interested in moving upstairs. This was taken as "we want them evicted", and apparently they were told this.

 

- The very last comment my wife takes as a threat. Personally, I think he's just trying to say something similar to what Toolman said above "don't sweat the little things." However.. very poor choice of words either way..

[Guest Sundancefisher]

First thought is what others said.

 

Life is too short to stress so much.

 

If he has paid a good part of what is owed you are better off than before. If he does not make you sign something before taking payment and the check cashes you can alway politely mention you are still hurting financially as you are short $X.

 

All things considered...don't sign something or mention to him that option without talking to a lawyer. If you sign nothing, your rights to sue are still available. You have to prove damages and the awkwardness around the property may not be worth that extra amount.

 

Sounds like there is no threat cause if he was that sort he would not of paid you anything. I suspect his anecdotes are off...

[birchy]

Just talked to him on the phone. I think we got it hashed out for now.

[LynnF]

That's good Birchy - if you're happy with the outcome, take the money and run. My first though about that last sentence was a WTF though so I re-read it. I still don't completely understand it or why he put it in there, but I wouldn't construe it as a threat - and I'm prone to overreacting if you can believe that

 

Glad this got resolved without a nasty court battle. Nobody ever wants to go that route - trust me.

[reevesr1]

Ryan,

The last line is not a threat, it is a religious statement. He is saying that all anyone should really worry about is whether they are ready for death. Pretty sure he is talking about "prepared to meet your maker" from a spiritual standpoint. He is not threatening you. The other clues are "just got back from retreat", and the reference to Noah.