December 19, 2014

Can I Include Past Due Apartment Rent in My Bankruptcy, Avoid Eviction and Stay in the Apartment?

Can I file $1000 of back rent owed to landlord and protect myself from eviction in the future? I am currently not under a lease.
–Candi

Jonathan Ginsberg responds:  Candi, thank you for your question.  First, I will assume that you have other debts besides the landlord.  In my view, the cost and hassle of bankruptcy would be excessive if your only debt problem is $1,000 of past due rent.

Assuming that you have other debts, my experience in dealing with past due rent is as follows.  Note that I am only describing my own experiences – there may be other bankruptcy lawyers out there with different experiences.  Also, as you are in the Southern District of Georgia, there may be local rules and customs that apply.

In my experience, if you are facing a threatened eviction, have $1,000 of past due rent and have no lease, Chapter will result in a short delay of the eviction. If the landlord is awake, he will retain counsel and file a Motion for Relief from the Stay.  His argument will be that you have no legal right to the leasehold and that your bankruptcy does not provide any adequate protection to him. The bankruptcy judge will likely grant the motion and the landlord will be able to renew his eviction proceedings.  In this scenario you would buy yourself about three or four weeks.

If the landlord is not awake, the stay would remain in effect for as long as the bankruptcy case is active – usually four or five months.  When the bankruptcy case closes the stay goes away and the landlord could renew his eviction efforts (although you would have the benefit of four or five months of free rent).

In Chapter 13, you would likely face the same result.  I was once involved in a case like this where the judge did extend the stay for a few months so as to allow the debtor to have time to find another place to live.  However, the stay in that case was dependent upon the debtor making regular monthly payments – any delinquency resulted in an immediate termination of the stay. In that case, unlike yours, there was a lease with several months left to run.

A problem in a 13 in your case, of course, is the absence of a lease.  If there was a current lease I think that there is a better argument to extend the stay for at least the remainder of the lease. Absent a lease, you have the bankruptcy judge essentially forcing the landlord to accept the existing lease term indefinitely. 

I should also point out that the current bankruptcy law gives added protection to landlords in terms of immediate relief from the stay if there is any evidence that the leased property is being damaged or under threat of damage. I have not seen any cases arising from this "threat to immediate economic harm" provision but I mention it in the event that your relationship with your landlord has deteriorated and things are being said in the heat of anger.

In sum, therefore, if you have another reason to file bankruptcy you can certainly put the $1,000 into your case as an unsecured debt, but don’t plan on staying in the leased premises too long absent some other deal with your landlord.

[tags] landlord tenant georgia, past due rent in bankruptcy, bankruptcy and eviction [/tags]
 

 

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Jonathan Ginsberg represents honest, hardworking men and women in the Atlanta area who need personal bankruptcy protection. In practice for over 25 years, Jonathan teaches bankruptcy law and practice at legal continuing education seminars and he is a founding member of the Bankruptcy Law Network. Jonathan lives with his wife and children in Atlanta.
About Jonathan

Jonathan Ginsberg represents honest, hardworking men and women in the Atlanta area who need personal bankruptcy protection. In practice for over 25 years, Jonathan teaches bankruptcy law and practice at legal continuing education seminars and he is a founding member of the Bankruptcy Law Network. Jonathan lives with his wife and children in Atlanta.

Comments

  1. Thanks for your suggestion. I have asked about negotiating the rent and I’m waiting to hear what they come up with.

  2. terence harmtsfield says:

    Greetings. I had a tenant (a while back) that got 5 months behind on rent and then filed for bankrupcty. Is she able to include past due rent on a bankrupcty filing. She no longer occupies the property.

    thank you

  3. Terence, generally the answer is “yes,” but there can be exceptions.

  4. marc oppenhuizen says:

    i am thinking of renting a property to a person in an active chapter 13 bankruptcy should i avoid this at all costs? Is there a letter that i can have her sign stating that if she gets behind she will not put her back rent into the chapter 13 bk and i can move ahead with eviction?

  5. Marc, in general, post petition debt, such as rent delinquency, would not end up as a debt in a plan because it arose post-petition. I think it would be worth your time to find a bankruptcy creditor’s lawyer who has knowledge about real estate for advice about how to proceed.

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