Deadbeat tenants are the bane of a landlord’s existence. If your tenant owes back rent, you can start eviction proceedings and keep the security deposit, but the latter often isn’t sufficient to pay the money due. You must also comply with state law regarding tenant notification about keeping the deposit. One of the few avenues you have to receive the money owed is via employee wage garnishment, which requires a court order.
However, not all states permit wage garnishment for creditors. North Carolina, South Carolina, Texas and Pennsylvania do not allow such garnishment, and other states limit the garnishment amount below the federal level. If the back rent meets the criteria, another option is suing the tenant in small claims court.
Most states allow landlords to file a money judgment against a tenant who does not pay rent, which in turn allows a garnishment amount of no more than 25 percent of income depending on the state.
Wage Garnishment and the Money Judgment
Wage garnishment occurs when a court issues an order for an employer to take a certain amount of money out of an employee’s paycheck and send it to the entity to whom the employee owes a debt. A landlord must first file an eviction in court because of the tenant’s nonpayment of rent.
State law varies, but in most cases, in order to get a money judgment against the tenant, the tenant must either show up for the court proceedings or have been personally served with court papers. As the landlord, you must state that you want a money judgment and provide the court with the amount owed in the complaint filed against the tenant.
Enforcing the Judgment
Receiving the judgement is one thing, but enforcing it is another. The court will not do that for you. Fortunately, many states allow ample time for a landlord to collect the judgment. In Colorado, for example, a landlord may have up to six years after the judgment date to get the money owed.
In most jurisdictions, the tenant has a limited time in which to pay the amount due before you can take steps to garnish his wages. While the time varies, it is generally relatively short, such as 10 to 14 days. You can then file a Writ of Attachment on a Judgment (the language may vary according to the jurisdiction) and hire a process server to serve the writ on the employer, not the tenant.
Wage Garnishment Limits
Wage garnishment doesn’t allow you to take all of a tenant’s wages until the amount owed is paid. Under federal law, wage garnishment is limited to 25 percent of the individual’s disposable earnings or the amount by which the disposable earnings are more than 30 times the federal minimum wage of $7.25 per hour, whichever is less.
Disposable earnings are those which the U.S. Department of Labor defines as "the amount of earnings left after legally required deductions are made." Deductions such as health and life insurance or union dues are not considered legally required, unlike Social Security, Medicare, state unemployment insurance and certain employee retirement system withholdings. Keep in mind your state may have a lower threshold for garnishment, such as 10 percent.