Can I use these funds to satisfy tenant damages?

[OK-LL]

What is the name of your state (only U.S. law)? OK

Tenant wrote a personal check for November's rent and moved out November 30. Check bounced and tenant gave me another personal check for the November rent which paid fine (no, I don't normally do that but I had plenty of time to sue if I needed to). Tenant did not collect his NSF check and I have it still in my hands. Tenant's SD does not cover the damages his dogs did to my carpet plus the other cleaning and damages he left behind. The remaining amount tenant owes for damages is a little short of the check I have in my hands. So, in your experience, can I cash this check and use it for damages since he left it in my possession? It does not have anything written on it noting that it was originally a rent check.

 

[LdiJ]

What is the name of your state (only U.S. law)? OK

Tenant wrote a personal check for November's rent and moved out November 30. Check bounced and tenant gave me another personal check for the November rent which paid fine (no, I don't normally do that but I had plenty of time to sue if I needed to). Tenant did not collect his NSF check and I have it still in my hands. Tenant's SD does not cover the damages his dogs did to my carpet plus the other cleaning and damages he left behind. The remaining amount tenant owes for damages is a little short of the check I have in my hands. So, in your experience, can I cash this check and use it for damages since he left it in my possession? It does not have anything written on it noting that it was originally a rent check.

That would be a very questionable thing to do in my opinion. That check bounced and should have been returned to your tenant. Trying to cash it after you have been given a replacement payment for the rent could cause you problems.

 

[Zigner]

What is the name of your state (only U.S. law)? OK

Tenant wrote a personal check for November's rent and moved out November 30. Check bounced and tenant gave me another personal check for the November rent which paid fine (no, I don't normally do that but I had plenty of time to sue if I needed to). Tenant did not collect his NSF check and I have it still in my hands. Tenant's SD does not cover the damages his dogs did to my carpet plus the other cleaning and damages he left behind. The remaining amount tenant owes for damages is a little short of the check I have in my hands. So, in your experience, can I cash this check and use it for damages since he left it in my possession? It does not have anything written on it noting that it was originally a rent check.

Nope, that's not your money. You should shred the check. If you cash it, you may very well be committing a crime or, at the very least, a tort.

 

[OK-LL]

I've asked a question and while a few folks don't seem to like the "feel" of it, no one has named a crime or tort specific to the circumstances. I think it's a grey area legally, so I was looking for experience that might clarify it. Anyone with a real answer?

 

[LdiJ]

I've asked a question and while a few folks don't seem to like the "feel" of it, no one has named a crime or tort specific to the circumstances. I think it's a grey area legally, so I was looking for experience that might clarify it. Anyone with a real answer?

It is NOT a grey area legally. You accepted a replacement check for a bounced check. Even attempting to cash the bounced check could get you into a great deal of trouble. A check is not "funds". Its a document that can be exchanged for funds and once the document is effectively cancelled, (by being returned as NSF and being replaced by the payer) its no longer valid. No one needs to cite a statute, because its so fundamentally basic.

 

[OK-LL]

It is NOT a grey area legally. You accepted a replacement check for a bounced check. Even attempting to cash the bounced check could get you into a great deal of trouble. A check is not "funds". Its a document that can be exchanged for funds and once the document is effectively cancelled, (by being returned as NSF and being replaced by the payer) its no longer valid. No one needs to cite a statute, because its so fundamentally basic.

Longhand for, you don't know a citation either, but it still feels wrong... The tenant has left the instrument/funds in my possession. At what point does it become "wrong" for me to use those funds to satisfy his debt?

In regards to some of the other non-answers posted above, I've been at this business for 20 years, with more than a hundred units & probably better educated in the law than most posters here, based on what I read; I can still be surprised by what a tenant will do and when I have a new thought it might bring up questions about what I can do to avoid damages. Why some of you think that reflects on an individual's character or ability I can't say. But if a forum exists to answer questions, it seems like bad form to taunt the questioner, pretend to talk to each other as if the questioner can't hear, or make judgmental comments about the questioner. In the end, you'll drive off legitimate participants and it'll just be the inner circle, so if that's what you're going for, you're almost there.

 

[OK-LL]

It is NOT a grey area legally. You accepted a replacement check for a bounced check. Even attempting to cash the bounced check could get you into a great deal of trouble. A check is not "funds". Its a document that can be exchanged for funds and once the document is effectively cancelled, (by being returned as NSF and being replaced by the payer) its no longer valid. No one needs to cite a statute, because its so fundamentally basic.

The facts don't fit conversion or embezzlement, in my opinion, and so I'm asking what anyone else might know (not feel) about where this fits legally.

 

[LdiJ]

The facts don't fit conversion or embezzlement, in my opinion, and so I'm asking what anyone else might know (not feel) about where this fits legally.

If you do not like the answers we provide, feel free to attempt to cash the check and see what happens. After all, we aren't the ones who are likely to get into trouble, you are. Therefore its your decision to make. I certainly wouldn't do it, but hey, you obviously know better than we do.

 

[tranquility]

You are wrong. This fits very nicely in to the definition of conversion.

While it fits the tort of conversion, I believe it better fits the crime of embezzlement. (Even though the OP has dismissed that possibility.)

§21-1451. Embezzlement defined.

A. Embezzlement is the fraudulent appropriation of property of any person or legal entity, legally obtained, to any use for purpose not intended or authorized by its owner, or the secretion of the property with the fraudulent intent to appropriate it to such use or purpose, under any of the following circumstances:
1. Where the property was obtained by being entrusted to that person for a specific purpose, use, or disposition and shall include, but not be limited to, any funds "held in trust" for any purpose;

Here, the purpose was rent. The OP wants to use it for damages.

9. Where the property is possessed or controlled by virtue of a lease or rental agreement, and the property is willfully or intentionally not returned within ten (10) days after the expiration of the agreement.

Embezzlement does not require a distinct act of taking, but only a fraudulent appropriation, conversion or use of property.

Now, there is a possible defense:

§211459. Property taken under claim of title.

Upon any prosecution for embezzlement it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith even though such claim is untenable. But this provision shall not excuse the retention of the property of another, to offset or pay demand held against him.

I don't think the OP can claim he has title in good faith based on the sentence I have bolded. That is the exact claim the OP is making. Still, it is a possible defense to him going to jail.

 

[OK-LL]

While it fits the tort of conversion, I believe it better fits the crime of embezzlement. (Even though the OP has dismissed that possibility.)
Here, the purpose was rent. The OP wants to use it for damages.

Now, there is a possible defense:
I don't think the OP can claim he has title in good faith based on the sentence I have bolded. That is the exact claim the OP is making. Still, it is a possible defense to him going to jail.

Thank you, Tranquility, for your well thought out response. The definition of embezzlement you offered differs from and is more detailed than those I found in my research. I appreciate your assistance.

 

[Zigner]

Thank you, Tranquility, for your well thought out response. The definition of embezzlement you offered differs from and is more detailed than those I found in my research. I appreciate your assistance.

You're quite welcome from all of the members that offered advice rolleyes: )