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No charges will be filed against tenant for alleged apartment damage

By Howard B. Owens

It's a civil matter, say local prosecutors, after looking at a recent case of alleged damage done to an apartment at 122 Summit St.

The Batavian reported on May 4 that landlord Willard Preston called in police after viewing holes in walls, broken window frames and piles and piles of trash allegedly left by a tenant recently evicted.

Batavia Police Officer Ed Mileham said this evening, following his investigation into the matter and reviewing the evidence with an assistant district attorney, that there is insufficient proof for a criminal mischief charge.

Mileham said he has successfully brought a case to the district attorney's office involving tenant damage to an apartment. But in that case, there was clear evidence that the damage was done in a short amount of time and after the tenant expressed a desire to break a lease.

In this case, the tenant was in the apartment for a year and a half and there's no evidence that the damage wasn't anything more than carelessness carried out over the entire span of the tenant's residency.

Mike Weaver

What a shame. The tenants likely have no assets to go after in civil court. They are basically getting away with vandalism.

I am glad I am not a landlord in this community.

May 13, 2010, 8:48pm Permalink
Amanda Rumble

As a renter this makes me sad to read. I can't believe the amount of disrespect someone can have for someone else's property. We had to move suddenly from our apartment and it was no fault of our own but the situation was crappy overall and I would have never imagined doing anything like that for revenge. Ugh. It is no wonder that so many landlords require people to jump through a variety of hoops in order to rent a place.

May 13, 2010, 11:51pm Permalink
MaryJane Wilcox

There are broken window frames, holes, garbage and they say it was carelessness???? If they think it was carelessness, so what. It is still vandalism. Sometimes I wonder about this county.

May 14, 2010, 4:42am Permalink
Howard B. Owens

For the record, Mileham did not use the word "careless." That's my attempt to summarize the difference between it being a criminal act that can be sustained as a charge in court and something that can't be charged as a criminal act.

I'm not sure there is an actual "vandalism" statue. Any thing I've ever seen charged as a crime in the county that involves intentional and willful property damage is charged as "criminal mischief." I think that's the more legal term for "vandalism."

As I understand it -- and I'm no lawyer -- to prove criminal mischief, you have to prove the person took action that he or she reasonably knew would cause damage.

The fact there is a hole in the wall doesn't prove the person purposefully punched a hole in the wall. He or she could have fell while carrying a 2x4, for example, and that caused a hole in the wall. No intent to cause the hole.

Outlandish example, possibly, especially in these circumstance, but an attempt to explain the difference between being able to prove something was willfully done rather than accidental.

Or not so outlandish, tenant says, "my boyfriend had some friends over, they were rough housing and one of them -- I'm not sure which -- fell into the window frame and knocked it out ... I think that happened about a year ago."

How do you prove that isn't what actually happened?

I'm not necessarily agreeing that this is or isn't a criminal mischief case. I'm just saying I understand the law's point of view -- the concern that actually proving criminal mischief might be a lot harder than it appears on the surface.

And I'm sure this is why landlords get so frustrated -- it seems common sense clear to the landlord somebody damaged their property, but making a "beyond a reasonable doubt" criminal case is much harder than it first appears.

May 14, 2010, 8:21am Permalink
Chelsea O'Brien

I know colleges and universities follow different rules when students live on their properties, but many require pictures of before and after if there is damage. Schools also require forms be filled out concerning damage/problems when students move in, the forms are filled out and signed by the student(s) and a representative from the school. This way, when a student is charged for the damage, it is understood that it was not reported when the student moved in and is now the students' responsibility.

I have never rented other than living on a college campus, so some landlords take pictures before a tenant moves in? Do they agree on reporting damages or problems?

May 14, 2010, 9:58am Permalink
Amanda Rumble

Chelsea my previous landlord required that we do a walk through inspection together which was signed and dated at the time where any problems were noted if seen. The same inspection was required when moving out as well. This protected both of us.

May 17, 2010, 11:08pm Permalink

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