opinion on letter to be sent to tenant

[LAS117]

What is the name of your state? NY

Hello everyone, please give your opinion of this letter that I will be sending to my former tenant. Do you think she'll take me to small claims court? I've been accused of being too bitchy...what do you think?

Dear Tenant,
I am enclosing a check in the amount of $715.62, which is the refund amount of your security deposit on XXXXX. There were a few necessary deductions totalling $129.38. Please see the highlighted items on the enclosed bill for an explanation of these deductions.

Regarding your request for a full refund of October’s rent. It was your choice to leave early. I notified you over 3 months in advance of my intent to sell and reassured you that you would be able to stay at least until October 31 as per our lease agreement. Then I negotiated with the new buyer to have you stay until January (if need be) and rent from him because he has another residence.

In your certified letter giving 30 days notice you claim that we had no lease. As per our phone conversation (6/03) I sent you a new lease in the mail which would terminate on October 31, 2003. You did not sign and return it but sent payment in full for the specified time frame.

I consulted the attorney who is also working on the closing of the property. I showed him the original lease and explained the circumstances. He said the fact that you paid rent in full (consideration) for the time frame we discussed over the phone constitutes an enforceable oral lease. Furthermore, our original lease has a clause in it (see enclosed lease, paragraph #17) stating "if no new lease is signed a month-to-month relationship shall be established and may be terminated by either party upon 60 days notice." You have not met the terms of the original lease.

However you choose to interpret the situation, I should have been guaranteed (and counted on) payment through October. I understand hard financial times, (that is why I am selling) but it is unfair to ask me to eat the entire cost of October’s rent because you chose to leave early. I think I am being generous by offering to split the month with you. Also, you wouldn’t be entitled the full month’s rent because you still have personal belongings there and only turned in the keys on October 6th.

I have a tentative closing date of October 31. After I close on the property I will send you a check in the amount of $422.50, constituting half of October’s rent. Please understand that I do not readily have the funds available to give this amount to you sooner.

Best regards,
Landlord
Enclosures (2)

P.S. You still have personal items stored on the property. Please try to collect them by October 15th. For your convenience they have been moved to the outside shed for easy access.

 

[JETX]

My comments:
"As per our phone conversation (6/03) I sent you a new lease in the mail which would terminate on October 31, 2003. You did not sign and return it but sent payment in full for the specified time frame. "
*** Without her signature, she is correct. There is NO lease. The payment for the specified duration does not create a written lease. And without that, the only real lease in effect would be a month-to-month.

"He said the fact that you paid rent in full (consideration) for the time frame we discussed over the phone constitutes an enforceable oral lease."
*** Yes, but only a month-to-month.

"and may be terminated by either party upon 60 days notice."
*** When did the tenant FIRST advise you of their intent to vacate??? Your provision does not require a WRITTEN notice so a verbal one would satisfy. I would assume that there was some back-and-forth on this and therefore the current issues.

 

[macktosh]

I think you might have a problem if you send the deposit check past the 31st of October.

She could say she vacted on Sept 30th which means you have until Oct 31st to actually get the letter postmarked, and NOT on Satuday Nov 1st.

Its better to cover your butt on this one and find the money even if the closing is delayed.

Send the money certified return recipt so she will have to sign for it.

Also be careful with the big deductions when you buy or sell a house, you are not spending money to fix it up for a new rental. Some judges might dissallow the deductions since a new owner might just turn around and rip out what you just fixed.

 

[JETX]

Ignore MackTosh.... he is the forum troll and clearly can't read and COMPREHEND that the tenant vacated the property before Oct 1 ("Regarding your request for a full refund of October’s rent.").... thereby making his entire post stupid.... as he is.

 

[macktosh]

Jetx :

some states take 30 days literally like CA, maybe TN, but in NY it means the first and last day of a month.(or rental period)

She technically moved out the last day of sept, since the rent was paid till that date, so the landlord has until the last day of October to postmark the security deposit info. On Nov 1st the landlord would be in violation.

The 50% refund for october is a seperate issue.

 

[JETX]

"She technically moved out the last day of sept,"
*** How do you KNOW that?? There is nothing in the thread to tell us WHEN the tenant moved out. So, I guess this is just some more of your 'made up' crap, huh??

 

[LAS117]

thank you for your posts & feedback so far...

To clarify things a little bit:

I advised tenant of my intent so sell in the beginning of August
I thought we had an oral lease until October 31 (because she
pre-paid in full until then. I made it clear to her that she would not have to leave before then.
Our written lease expired June but had the "60 days notice" (instead of the standard 30 days) clause in it if it became month to month.

Tenant gave 30 days notice on August 26 and moved out by Sept 30 but didn't turn in keys until Oct 4 and still "accidentally" left
some personal belongings behind.

I was going to send her her security deposit NOW with the above letter, then refund only 1/2 of October's rent when I close.

Does that clarify things?

 

[JETX]

Okay, then with that, send her an itemized statement of her deposit and a check for the remaining deposit NOW!!

I would also include deduction for the cost (if any) to remove and dispose of her remaining items. You could even include a provision to refund that 'deduction allowance' if she contacts you within 5 days to recover the property.

Be sure to note that this is being done within the 21 day required period (based on keys surrendered on Oct 4, gives you until Oct 25 to postmark). Since you can already anticipate an issue, send it certified RRR. That will then get you out of the 'deposit return' time problem.

Personally, I wouldn't even mention the October rent. Let her bring that issue up if she wants, since it does not have a 'time clock'. Resolve it later at your convenience.