Tenant Breaks Lease - 21 Days Deposit Return Starts When?

[Morgan05]

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

Tenant was served a 3 day notice to pay or quit for 2 months back rent, which they did not pay. After that, the tenant said they are moving, breaking the one year lease by moving 5 months early. I have not agreed to any termination of the lease. Before tenant vacates, I will send notice of right to pre-moveout inspection. Once the tenant vacates I will advertise & re-rent to mitigate damages.

When does the 21 days to return security deposit start? 1) The date the defaulted tenant vacates or 2) the date the new tenant moves in.

To my understanding, the 21 days starts when the lease terminates, which would be when 2) the date the new tenant moves in. Since, I have not agreed with the defaulted tenant moving before the lease term.

Within 21 days after the defaulted tenant vacates, I plan to send the tenant the Security Deposit Itemization subtracting any repairs and unpaid rent, so far, without the security deposit. I will tell the tenant we will hold on to the security deposit, until 21 days after the new tenant moves in.

Within 21 days after the new tenant moves in, I plan to send the defaulted tenant the Security Deposit Itemization, including subtracting the additional unpaid rent from the date the defaulted tenant vacated to the date the new tenant moves in, along with the balance the defaulted tenant owes me. Is this way legal?

 

[Gail in Georgia]

You're a bit confused here..

You served the tenant with a Pay or Quit notice due to failure to pay rent.

They chose to "Quit" (i.e., move out) instead of paying what they owe.

Become familiar with what a tenants security deposit can be used for in your state:

http://www.dca.ca.gov/publications/landlordbook/sec-deposit.shtml

You send them notice regarding the status of their security deposit (which hopefully you'll use for their owed rent) within 21 days after they vacate the rental unit and NOT within 21 days after finding a new tenant or you might find yourself being sued for several times over the amount of the deposit.

Gail

 

[Morgan05]

Become familiar with what a tenants security deposit can be used for in your state: . . .

You send them notice regarding the status of their security deposit (which hopefully you'll use for their owed rent) within 21 days after they vacate the rental unit . . .Gail

Within 21 days after the defaulted tenant vacates, I plan to send the tenant the Security Deposit Itemization subtracting any repairs and unpaid rent, so far, without the security deposit. I will tell the tenant we will hold on to the security deposit, until 21 days after the new tenant moves in. . .

I am familiar with CA Civil Code 1950.5. Security deposit can be used for "unpaid rent."

I AM sending the tenant the "status" of their security deposit within 21 days of them vacating. However, I am holding on to the security deposit, until termination of lease, which is either until new tenant moves in or the end of the lease. Is this legal?

 

[Zigner]

However, I am holding on to the security deposit, until termination of lease, which is either until new tenant moves in or the end of the lease. Is this legal?

Again, NO. You must either return the deposit or send an itemized list showing what the deposit was used for within 21 days of the tenant vacating the unit. I'm not sure why you are confused about this.

 

[Morgan05]

Within 21 days of vacating, I am sending a Security Deposit Itemization form, without deposit.

To my understanding, the lease is not terminated, yet. Tenant is still responsible for the rent for 5 more months. The 21 days starts at the end of the lease (termination), not when the tenant vacates early. But, I am not sure if I understand the CA law correctly.

 

[not2cleverRed]

Again, NO. You must either return the deposit or send an itemized list showing what the deposit was used for within 21 days of the tenant vacating the unit. I'm not sure why you are confused about this.

I'm still wondering how OP thinks there'll be anything left of the security deposit after applying it to over 2 months (probably 3 by the time the tenant actually moves) of unpaid rent. Does OP think a tenant that can't be bothered to pay rent will leave the apt. in pristine condition?

OP, most likely your tenant will come out owing you more than the security deposit. Stop fretting about dealing with the highly unlikely and prepare to just follow the law and still be owed $ beyond the security deposit.

 

[Zigner]

Within 21 days of vacating, I am sending a Security Deposit Itemization form, without deposit.

To my understanding, the lease is not terminated, yet. Tenant is still responsible for the rent for 5 more months. The 21 days starts at the end of the lease (termination), not when the tenant vacates early. But, I am not sure if I understand the CA law correctly.

AGAIN. You must return the deposit and/or an itemized list showing what the deposit was applied to within 21 days of the tenant VACATING the property. The 21 days starts when the tenant VACATES, not at the "end of the lease."

I agree that the tenant will almost definitely owe money above and beyond the amount you are holding for a security deposit, but that doesn't change the law about sending notice of disposition of the funds. You will need to recover that money after you know how much it comes to.

 

[Morgan05]

I agree that the tenant will almost definitely owe money above and beyond the amount you are holding for a security deposit, but that doesn't change the law about sending notice of disposition of the funds. You will need to recover that money after you know how much it comes to.

Thank you for all the thoughtful responses.

If I return the security deposit after 21 days of the defaulted tenant vacating, I would have to return $1500, if there are no repairs. It may take 2 months to secure a new paying tenant. So, the defaulted tenant would be liable for $3,600.

Instead of returning $1,500 to the defaulted tenant and suing them for $3,600, I would prefer to hold the deposit until the lease terminates (new tenant moves in) and invoice the defaulted tenant for $2,100.

 

[Gail in Georgia]

"To my understanding, the lease is not terminated, yet. Tenant is still responsible for the rent for 5 more months. The 21 days starts at the end of the lease (termination), not when the tenant vacates early. "

Look; when you initiate a Pay or Quit notice and your tenant chooses the "Quit" route you, as the landlord, are terminating the lease. "Quit" means you want your tenant to get the hell out of dodge (vacate your property) or (more hopefully) Pay what they owe to avoid all of this.

Your tenant has chosen to "Quit" (move out). If they don't do this within the three day period you can begin the formal process of eviction through your court system (at least this will then end up on their credit history if your request is granted by the courts). But you don't get to hold onto their security deposit without an accounting of what you are going to do with this money for the next five months.

It is EXTREMELY important that you understand this in California which is very tenant friendly. If not you may not only have lost two months rent but may end up on the short end of a lawsuit having to repay this deadbeat several times the amount of their security deposit because you did not provide them this information within your states required time frame.

Do a simple "google" search on what Pay or Quit means for the landlord. By going this route you want the tenant to Pay up (hopefully) or Get out but you can't have it both ways; kicking them out but yet expecting them to owe for five more months on their lease.

Gail

 

[Zigner]

Thank you for all the thoughtful responses.

If I return the security deposit after 21 days of the defaulted tenant vacating, I would have to return $1500, if there are no repairs. It may take 2 months to secure a new paying tenant. So, the defaulted tenant would be liable for $3,600.

Instead of returning $1,500 to the defaulted tenant and suing them for $3,600, I would prefer to hold the deposit until the lease terminates (new tenant moves in) and invoice the defaulted tenant for $2,100.

I never said you had to return the deposit. In fact, you are going to keep it and send an itemized statement saying you used it towards the rent they owed. The fact is that, by law, you must send the deposit back OR an itemized statement saying what you used the deposit for (or a combination thereof) within 21 days of the tenant vacating the premises.

 

[Zigner]

"To my understanding, the lease is not terminated, yet. Tenant is still responsible for the rent for 5 more months. The 21 days starts at the end of the lease (termination), not when the tenant vacates early. "

Look; when you initiate a Pay or Quit notice and your tenant chooses the "Quit" route you, as the landlord, are terminating the lease. "Quit" means you want your tenant to get the hell out of dodge (vacate your property) or (more hopefully) Pay what they owe to avoid all of this.

Your tenant has chosen to "Quit" (move out). If they don't do this within the three day period you can begin the formal process of eviction through your court system (at least this will then end up on their credit history if your request is granted by the courts). But you don't get to hold onto their security deposit without an accounting of what you are going to do with this money for the next five months.

It is EXTREMELY important that you understand this in California which is very tenant friendly. If not you may not only have lost two months rent but may end up on the short end of a lawsuit having to repay this deadbeat several times the amount of their security deposit because you did not provide them this information within your states required time frame.

Do a simple "google" search on what Pay or Quit means for the landlord. By going this route you want the tenant to Pay up (hopefully) or Get out but you can't have it both ways; kicking them out but yet expecting them to owe for five more months on their lease.

Gail

Please correct me if I'm misunderstanding you. It's possible that I'm just clarifying your point.

The LL doesn't give up the right to seek recovery of the unpaid rent for the remaining months of the lease just because he issued a 3-day notice to pay or quit.

 

[Morgan05]

Do a simple "google" search on what Pay or Quit means for the landlord. By going this route you want the tenant to Pay up (hopefully) or Get out but you can't have it both ways; kicking them out but yet expecting them to owe for five more months on their lease.Gail

From google search another attorney posted, "Under California law, a lease terminates on the day that the landlord files its unlawful detainer action following a properly given 3-day notice to pay rent or quit."

I will not file a unlwaful detainer. I am not evicting them or "kicking them out." I am only asking them to pay. I like to work with tenants to preserve their credit and renting history.

The tenant is moving early and breaking the lease. The lease will terminate, when the new tenant moves in, I think .

 

[Zigner]

From google search another attorney posted, "Under California law, a lease terminates on the day that the landlord files its unlawful detainer action following a properly given 3-day notice to pay rent or quit."

I will not file a unlwaful detainer. I am not evicting them or "kicking them out." I am only asking them to pay. I like to work with tenants to preserve their credit and renting history.

The tenant is moving early and breaking the lease. The lease will terminate, when the new tenant moves in, I think .

The lease terminates when the tenant vacates. Otherwise, the tenant could wander back in two months from now, right? The tenant's breach of the lease is what allows you to collect damages.

 

[Morgan05]

In fact, you are going to keep it and send an itemized statement saying you used it towards the rent they owed.

They are moving with one week notice. I don't agree to them moving and/or terminating the lease. They owe less than the deposit. I would have to return $1500 from their security deposit. Then, sue them in small claims court for $2,100 for "future rent."

I prefer to withhold the security deposit until the termination of the lease (the new tenant moves in). Then, send the Security Deposit Itemization form and invoice the tenant for $2,100.

 

[CourtClerk]

From google search another attorney posted, "Under California law, a lease terminates on the day that the landlord files its unlawful detainer action following a properly given 3-day notice to pay rent or quit."

I will not file a unlwaful detainer. I am not evicting them or "kicking them out." I am only asking them to pay. I like to work with tenants to preserve their credit and renting history.

The tenant is moving early and breaking the lease. The lease will terminate, when the new tenant moves in, I think .

You honestly don't need to be a landlord, or you're the kind of landlord that needs both a landlord/tenant attorney on retainer and a property management company. When you serve them with a 3 day notice, you are asking them to do 1 of 2 things (THEIR OPTION). You are asking them to pay the money or leave the property. That's what you're asking them to do. You are essentially moving to evict them or in fact, kicking them out.

What are you going to do if they don't pay you in 3 days? My guess is.... kick them out, thus terminating the lease.

Commit this to memory:
http://www.dca.ca.gov/publications/landlordbook/catenant.pdf

In fact, order yourself and all your tenants a copy.