Burden of Proof on Landlord in Small Claims

[justalayman]

so, here is what you do:


you give the landlord notice that you intend to file suit for the remainder of your deposit. You have to allow 7 days before filing suit. If he gives you the money, it's over. If he doesn't, you can file suit. If you can prove the withholding was wrongful (which it was if there was no included statement) you get the money back. If you can prove it was willful (which it would be if he does not refund your money: Turner v. Lyon, 189 Colo. 234, 539 P.2d 1241
(1975). ), you get treble damages plus court costs PLUS attorney fees.

Wrongful withholding of deposit determined. Failure to return the deposit, coupled with failure to provide a tenant
with statutorily mandated written statement of reasons for the retention, makes the withholding of a deposit
wrongful. ******ez v. Steinbaum, __ Colo. __, 623 P.2d 49 (1981).

Now, whether the landlord has a right to sue you for the damages after he has refunded all of your money; unknown to me but I saw nothing precluding the action.

Now while, per statute, the withholding is wrongful without a explanation of the deductions, first, you can argue it was not mailed since it appears it was not mailed. I suspect a court will toss that

then you can argue it contained no explanation of the deductions. If the LL admits to that, then you win. If he doesn't, it is going to be up to the court to determine (presuming the LL states it was included) who is right.


If you are still "winning", the rest should be a given.

When penalty provision attaches. If a landlord does not return a security deposit within the required time, the
penalty provision of subsection (3)(a) attaches to that portion of the money wrongfully retained, plus attorneys' fees,
and court costs. Turner v. Lyon, 189 Colo. 234, 539 P.2d 1241 (1975).

Now, all you have to worry about is this little gem (again, apparently either they copied California or California copied Colorado as it appears the statutes nearly mirror each other):

Statutory liability of subsection (3)(a) may be offset by an award, if any, made to the landlord by counterclaim for
damages caused by the tenant to the property, and the landlord has the burden of proving the claim by a
preponderance of the evidence. Turner v. Lyon, 189 Colo. 234, 539 P.2d 1241 (1975).

 

[justalayman]

here is what I would do if I was the landlord (and the amount justified taking action)

refund the amount withheld. That precludes you from suing for anything. That way there are no treble damages, no attorney's fees, no nothing.


Then I would file suit against you to seek whatever damages I am claiming. That way, you will lose in court. There will be a judgment on your record for quite a few years and you will still have to pay me the money claimed for damages.

In the end I would get my money plus you would have the added penalty of having a judgment on your record for all prospective creditors, including landlords, to see. Your arguing about no itemization of the damages would result in you being penalized rather than me.

So, (in the words of WOPR of War Games (a movie)):

would you like to play a game?

 

[burnsea88]

would you like to play a game?

When you put it that way and add the fact that they are a large company with well qualified lawyers and I am just a former tenant...I suppose not. Thanks for the insight!