I Think I Discovered a Fraudulent Tenant, What Can I do?

Drafted by Attorney Jennifer Hayden of Petrie + Pettit S.C. 

Identity theft or fraud for the purposes of renting an apartment is growing issue. We have heard there are social media pages dedicated to selling fraudulent identities to individuals specifically to rent apartments as well as sites that will produce fake paystubs, bank account information, credit reports and checks or money orders, along with the more traditional methods such as friends and family members posing as a current employer or former landlord to give a good reference.

With all of the available options, it is likely that at some point you may believe you have a tenant who used one or several of these methods to pass your screening criteria, enter into a written rental agreement and take possession of an apartment.

Frequently, the potential for fraud comes to light because of other issues with the tenancy. In most cases, there will be a corresponding failure to pay rent, bounced payments or non-rent breaches occurring some amount of time after the tenant has been residing in the apartment. Unfortunately, once the tenant has been residing in the apartment, it is likely that you will need to issue notice and proceed with filing an eviction action as it is unlikely the police will take any action to remove the tenant, though you can certainly file a police report if you have a sufficient basis to do so. In certain circumstances, the police may be able to provide the actual identity of the person residing in the apartment, which can be helpful in proceeding.

If your rental agreement contains a provision regarding providing accurate and complete information in the application and rental documents as the basis for an eviction action, you could issue notice and, if necessary, file an eviction action based on that provision. You will have to be prepared to prove what information was provided by the tenant and what was fraudulent or inaccurate. We do not believe that this is the type of criminal activity which threatens the health, safety or peaceful enjoyment of other tenants or immediate neighbors such that a Non-Curable Notice for Criminal Activity could be used but, particularly if there is a police report, you may be able to allege that criminal activity provisions of your lease have been breached by the fraud.

Alternatively, if you do not have sufficient evidence of the fraud or rental agreement provisions to proceed on that basis, you can wait until the tenant fails to pay rent or “bounces” a rent payment and serve notice and file an eviction action based on the non-payment. You will want to do so promptly, as collecting charges for any unpaid rent or physical damage to the apartment in these cases is obviously next to impossible.

If the tenant happens to be paying rent, you can wait until there are non-rent breaches such as noise complaints, fights with other tenants, or other activities for which you would normally issue a Notice to Quit or Vacate. You would issue the notice and then file an eviction action on that basis, if the tenant fails to cure or vacate after the notice period.

It is relatively common in these instances that tenants tend to stay in the apartment as long as possible, fail to appear in court but frequently seem to have largely vacated by the time the Sheriff executes the writ. We cannot, of course, guarantee what any particular tenant will do, so, as in all instances, you must proceed as though the matter will be contested in court and it will be necessary to proceed through the eviction case and having the sheriff execute the writ of restitution.

Drafted by Attorney Jennifer Hayden of Petrie + Pettit S.C.