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This is hypothetical. Suppose I write out a rent check to my landlord, but I don't give it to him. Instead, I leave it on my desk because I still have to deposit funds to cover the check. Unbeknownst to me, the landlord enters my apartment while I'm away, sees the check, assumes he should take it, attempts to cash it, and it bounces. Am I liable for writing a bad check? Is the landlord liable for theft?

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    Theft by the landlord, unless he has an extremely good reason to assume that you left the check for him. If you always leave the check on your table and then tell him to enter and take it, maybe ... But it is still a bad idea to sign a check that isn't covered.
    – o.m.
    Jan 11 at 5:46
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I'll take Washington state law to be typical. RCW 9a.56.060 is the criminal law governing rubber checks. Writing a check which you know at the time of drawing or delivering a check that has insufficient fund with intent to defraud is a crime. That's not the case here. It might appear to be theft on the part of the landlord, except that

In any prosecution for theft, it shall be a sufficient defense that: (a) The property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable

That is, he quite reasonably believed that it was intended for him (it is made out to him). As for civil liability, your "liability" arises from your contract with your bank, and unless you have a remarkable "not my fault" clause in the checking account agreement, you can't sue the bank to avoid the overdraft fees (except if bank breaches a promise to not cash a postdated check until the date written on the check, and the check is dated for some time after the check was deposited). You might attempt to sue the landlord, since his action caused you harm: if his act was negligent. If the rent was already due and you were in arrears, the landlord's act of taking the check to apply to your rent obligation (thus saving you from rent late fees) is what a reasonable person would do. But if the check was for rent due a month in the future, a reasonable person would know that they are not owed the rent at this time, and it is highly unlikely that you intended to hand over the check right now: taking and depositing the check would be neglectful of the ordinary care that the landlord owes you as a tenant, and he could be found liable for the damage that he did.

It is suggested in a comment by Ryan M that violation of the notice requirement under the Residential Landlord-Tenant act negates a good faith defense. State v. Hicks, 102 Wn.2d 182 concludes that

"Animus furandi", or the intent to steal, is an essential element of the crime of robbery ... the good faith claim of title defense negates the intent element of robbery

Nothing in the statutes or case law exists which demands completely clean hands in invoking a good faith defense. Use of force is illegal; but use of force in self defense is legal. The courts have not ruled that a person is deprived of that defense if they have committed a criminal act (landlord entering a residence is not a crime, it is a civil wrong), or if they have committed a tort act.

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  • Landlords can't generally enter rented apartments without permission or cause. Wouldn't entering the apartment illegally negate a claim of good faith?
    – Ryan M
    Jan 11 at 17:18
  • I agree that the landlord could be argued to be acting in good faith, but I'd also argue that the first excerpt of a valid defense doesn't apply. There might be some legalese I'm misinterpreting, but I wouldn't expect that taking a check from someone's apartment when they are not home and without their knowledge would qualify as "appropriating openly and avowedly". Jan 11 at 17:59
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Unbeknownst to me, the landlord enters my apartment while I'm away, sees the check, assumes he should take it, attempts to cash it

Depends on whether the landlord was trespassing (which would be the case unless the reason he entered the apartment was an emergency, or your lease agreement grants him the right to enter it without notice as he pleases).

If he was trespassing, then he would have zero valid reasons to conclude that the check had been left for him to take, albeit it was in his name. He would have zero authorization from you in regards to the check. Taking it would be theft, and attempting to cash it would be attempted theft.

But if the landlord was not trespassing, then he would know that you would know that he may show up unannounced, and so that you may leave there things for him. The check would then pretty much fall into this bucket, so it would be no theft. (At least, he would have a very strong defense argument should theft be indicted)

Am I liable for writing a bad check?

Surely not if the landlord was trespassing. But if he was not, then there are two possible situations:

  1. You have a history of leaving things for the landlord to take. You know that he may enter the apartment and take what appears to be left for him. Therefore, leaving a check that will bounce would be your negligence. You are liable.

  2. Although you know that the landlord may enter unannounced, you have no history of leaving things for him to take. As the check has his name on it, it would not be totally wrong for him to assume that you have left it for him, but he would have no standing to be reasonably certain about it either. Therefore he can take chances, but must take the risks too. Instead of giving you a call to double-check (pardon the pun), he jumps to conclusions. Although no crime committed, he is responsible for the consequences (check bouncing fee).

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  • Not trespassing is not synonymous with reasonably inferring that the check was intended to be delivered to him. It is one relevant fact but not by any means the only one.
    – ohwilleke
    Jan 11 at 19:36
  • @ohwilleke Sure not synonymous. The point is that if he is trespassing that's enough to invalidate any inferences: no other facts will make excuses. Isn't this true?
    – Greendrake
    Jan 11 at 21:04
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You are liable for the rent until a check is signed and delivered.

When a check is signed and delivered the liability for that rent is substituted for (or co-exists with) liability on the check.

If the check is honored, the rent is discharged and the liability on the check is discharged.

If the check is dishonored, the rent is still owed and there is also liability on the check which can be cleaner to prove or provide the landlord with additional remedies (e.g. a bounced check fee).

No liability arises from the check until is is signed and delivered.

Whether the fact pattern in the question constitutes a valid delivery of the check is a question of fact. The tenant clearly didn't intend to deliver it. The landlord may have been reasonable or unreasonable in assuming that the signed check was delivered to the landlord by leaving it on the table of the apartment and the facts and context will determine that close call.

If it was not delivered, the landlord should have deposited it if the landlord knew that it wasn't delivered (which might even be a crime), but is not a crime and maybe not even a tort, if the landlord believed in good faith that it was intended to be delivered and it wasn't.

Lack of intent to deliver the check, at a minimum, probably relieves the tenant of criminal liability for intentionally writing a bad check, if the tenant is believed. It might relieve the tenant of landlord bad check charges too, although getting the bank to relieve the bad check charges would be harder as the bank would blame the tenant for making the confusion possible.

Even if there is a finding of an intent to deliver, that doesn't end the inquiry of criminal liability. The statutes for bad checks usually have other factors including whether an account existed or was closed, whether the tenant promptly makes the check good, and whether the tenant could reasonably foresee that the check would bounce (e.g. if there was an unexpected charge to the tenant's account or a deposit of a check that the tenant was relying upon itself was a bad check).

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