South Dakota: Former Tenant Suing But Signed Waiver

[fr0gman]

What is the name of your state (only U.S. law)? South Dakota

I have a tenant that is suing me in small claims for $1400 claiming that I did not return her deposit and that I damaged property that she left behind.

I did refuse to return her deposit because she skipped out a month early on her lease. She never provided me with any notice that she was leaving and when I found out that she had abandoned the property I changed the locks and sent her an eviction notice for abandonment. She left the place filthy and with holes punched in the wall and a door ripped from the wall.

When she signed the lease I also had her sign a waiver of liability and hold harmless agreement. In this agreement she agreed not to sue me for any reason.

My questions are:

1. Do I include the waiver in with my answer to her claim or do I simply answer her claim and then present the waiver to the judge?

2. I plan to sue her for the unpaid rent and for the damages and cleaning not covered by her deposit. Can I also make a claim for breech of contract since she agreed not to sue me then sued? If so, how much should I ask for on the breech claim?

 

[latigo]

You tell us the former tenant is suing for the security deposit and damages to personal property you allegedly caused.

Now please explain you why think that this “signed waiver of liability and hold harmless agreement” (whatever those confused conjunctive phrases are supposed to mean) constitutes a defense to either of those claims.

Then I’ll tell you why it doesn’t.

 

[fr0gman]

You tell us the former tenant is suing for the security deposit and damages to personal property you allegedly caused.

Now please explain you why think that this “signed waiver of liability and hold harmless agreement” (whatever those confused conjunctive phrases are supposed to mean) constitutes a defense to either of those claims.

Then I’ll tell you why it doesn’t.

"I hereby release, waive, discharge and covenant not to sue fr0gman (Landlord), its officers, servants, heirs, agents and employees (hereinafter referred to as "releasees") from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to any loss, damage or injury, including death, that may be sustained by me, my children or spouse, or to any property belonging to me, whether caused by the negligence of the releasees, or otherwise while occupying the residence, or while in, on or upon the premises or in any building on the property where the premises is located."

That would be the main portion of the WAIVER OF LIABILITY AND HOLD HARMLESS AGREEMENT

It is basically a modified version of this: http://agservices.tamu.edu/forms/liawaiv.pdf

I await your reply.

 

[!CuriousGeorge!]

"I hereby release, waive, discharge and covenant not to sue fr0gman (Landlord), its officers, servants, heirs, agents and employees (hereinafter referred to as "releasees") from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to any loss, damage or injury, including death, that may be sustained by me, my children or spouse, or to any property belonging to me, whether caused by the negligence of the releasees, or otherwise while occupying the residence, or while in, on or upon the premises or in any building on the property where the premises is located."

That would be the main portion of the WAIVER OF LIABILITY AND HOLD HARMLESS AGREEMENT

It is basically a modified version of this: http://agservices.tamu.edu/forms/liawaiv.pdf

I await your reply.

Your clause is too vague.

 

[latigo]

"I hereby release, waive, discharge and covenant not to sue fr0gman (Landlord), its officers, servants, heirs, agents and employees (hereinafter referred to as "releasees") from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to any loss, damage or injury, including death, that may be sustained by me, my children or spouse, or to any property belonging to me, whether caused by the negligence of the releasees, or otherwise while occupying the residence, or while in, on or upon the premises or in any building on the property where the premises is located."

That would be the main portion of the WAIVER OF LIABILITY AND HOLD HARMLESS AGREEMENT

It is basically a modified version of this: http://agservices.tamu.edu/forms/liawaiv.pdf

I await your reply.

Thanks for posting the language of the waiver.

Now I’m going to assume that you do not intend to assert the waiver as a defense in itself to her count for payment of the security deposit. Right?

______________

So then, with regard to the waiver and her count for damage to her personalty:

Was there a written lease agreement between you and the tenant? If so, was the above language incorporated in that written agreement or was it separate and independent?

If separate and independent of a written lease agreement, what consideration passed from you to the tenant? In other words, what did the tenant receive in exchange for the waiver?

In her complaint/claim/petition to the court what is she alleging that you did or neglected to do that supposedly resulted in damage to her personal property?

She may not have made any specific allegations of fault, but perhaps you have other information as to how she hopes to convince the judge that you were at fault.

If you will be kind enough to reply to the above, I can give you some incite as to where the waiver will take you in court.
__________________

This is incidental, but out of curiosity where does the wording “hold harmless” appear? In the caption or title or else where in the body of the waiver?

I ask this because a save and hold harmless clause is entirely out of context with the language you have quoted. Such a clause serves where one party agrees to assume full responsibility for some obligation or liability that befalls or could befall another party.

 

[fr0gman]

Now I’m going to assume that you do not intend to assert the waiver as a defense in itself to her count for payment of the security deposit. Right?

Correct. I am challenging her request for the return of the security deposit on grounds that she abandoned the property, left damage, failed to pay the final month's rent and did not leave the property in the condition which she received it.

So then, with regard to the waiver and her count for damage to her personalty:

Was there a written lease agreement between you and the tenant? If so, was the above language incorporated in that written agreement or was it separate and independent?

If separate and independent of a written lease agreement, what consideration passed from you to the tenant? In other words, what did the tenant receive in exchange for the waiver?

This agreement was separate of the lease. When this tenant asked to move in she was in the process of filing for housing assistance (Section 8). Her paper work was delayed and she asked if she could move in until the housing paperwork was resolved. I had her sign this waiver and she received permission to live in the property pending completion of her Section 8 application.

In her complaint/claim/petition to the court what is she alleging that you did or neglected to do that supposedly resulted in damage to her personal property?

I have not seen any specifics, only a single statement that says, "Failure to return security deposit and missing and damaged property."

She may not have made any specific allegations of fault, but perhaps you have other information as to how she hopes to convince the judge that you were at fault.

I really cannot answer that question. She left a broken TV, a broken dining set, a broken entertainment center and various piles of junk. I took photos of everything the day I discovered the property abandoned.

If you will be kind enough to reply to the above, I can give you some incite as to where the waiver will take you in court.

Thanks.
__________________

This is incidental, but out of curiosity where does the wording “hold harmless” appear? In the caption or title or else where in the body of the waiver?

3. I further hereby agree to indemnify and save and hold harmless the releasees and each of them, from any loss, liability, damage or costs anyone may incur due to my occupancy, whether caused by the negligence of any or all of the releasees, or otherwise.

I ask this because a save and hold harmless clause is entirely out of context with the language you have quoted. Such a clause serves where one party agrees to assume full responsibility for some obligation or liability that befalls or could befall another party.

Here is a full copy of the waiver: http://www.filedropper.com/untitled_2

 

[latigo]

Correct. I am challenging her request for the return of the security deposit on grounds that she abandoned the property, left damage, failed to pay the final month's rent and did not leave the property in the condition which she received it.

I understand that you will be claiming offsets against the $1400 security deposit. But in your initial post you made no distinction between her counts for the deposit and damage to goods as they relate to the release and waiver. Because you need to know that even if the waiver is enforceable it would not preclude her from for suing for the security deposit. One is an orange and the other an apple.

This (waiver) agreement was separate of the lease. When this tenant asked to move in she was in the process of filing for housing assistance (Section 8). Her paper work was delayed and she asked if she could move in until the housing paperwork was resolved. I had her sign this waiver and she received permission to live in the property pending completion of her Section 8 application.

Then the waiver and release was separate and apart from the lease and there is no consideration to support it. Her right to occupy the premises (which is your sole contribution) stems from the lease itself, not the waiver.

I further hereby agree to indemnify and save and hold harmless the releasees and each of them, from any loss, liability, damage or costs anyone may incur due to my occupancy, whether caused by the negligence of any or all of the releasees, or otherwise.

Again there is no consideration to support her agreement to indemnify you. And even if adequate consideration existed it would more than likely be struck down by a court as being unreasonably oppressive and unconscionable, plus vague and uncertain as to its application.

Remember now that this discussion only addresses your questions as to whether you could raise her written waiver in defense of her claims and as a means of supporting a counter claim for breach of contract.

We haven’t been talking about the merits of her claims or your possible counterclaim for reimbursement for the damage to the leased premises.