Tenant Breaks Lease - 21 Days Deposit Return Starts When?

[Zigner]

The terms of the lease relating to their obligation to pay rent. Step back for a moment. Your supposition that the lease remains in effect is wrong...think about it. There are certain obligations that survive, but not the lease itself.

ETA: I think that if you were to ask, the "expert" would clarify things.

 

[Gail in Georgia]

AND AGAIN, your tenants did NOT give you notice to move out early.

They were responding to YOUR demand to PAY OR QUIT.

They chose to QUIT instead of paying.

What you posted above has NOTHING to do with what you have provided to your tenants.

Frankly, I hope you hold on to their security deposit and they sue you for triple the amount of such. That would appear to be only way you'll learn anything about security deposit laws in your state.

Gail

 

[Morgan05]

AND AGAIN, your tenants did NOT give you notice to move out early.

I think a 30 or 60 day notice would be invalid, "2.5 months before the end of their lease." The landlord in the post did not say what "type" of notice.

Above tenant is simply "moving early" terminating tenancy, not terminating the lease.

So you’re saying as long as they give me notice, I can withhold security deposit until the new tenant moves in, as above?

What you posted above has NOTHING to do with what you have provided to your tenants. .

Tenant "moving early." That has something to do with my situation.

"Although their lease doesn't legally expire for the 2.5 months, if they have surrendered possession of the property . . ."

That's what my tenant is doing, surrendering possession.

 

[babymakesone]

They owe 2 months in back rent. You have 1 1/2 months in security. The security will go to pay the back rent. Send a letter with detail the day after they move out. Then worry about getting someone else to rent the apartment.

 

[justalayman]

That's what my tenant is doing, surrendering possession.

ok, you won't listen to anybody here so listen to the law:

1951.2. (a) Except as otherwise provided in Section 1951.4, if a
lessee of real property breaches the lease and abandons the property
before the end of the term or if his right to possession is
terminated by the lessor because of a breach of the lease, the lease
terminates

that means if the tenant breaks the lease and abandons the property, the lease is terminated and if the landlord terminates the lease (which you do when you issue a 3 day pay or quit notice) the lease also terminates. Are you happy now?


the law continues with this:

Upon such termination, the lessor may recover from the
lessee:

(1) The worth at the time of award of the unpaid rent which had
been earned at the time of termination;

past due rent

(2) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that the lessee
proves could have been reasonably avoided;

the rent due for the remainder of the lease

(3) Subject to subdivision (c), the worth at the time of award of
the amount by which the unpaid rent for the balance of the term after
the time of award exceeds the amount of such rental loss that the
lessee proves could be reasonably avoided; and

this means you have to mitigate your damages by attempting to re-let the unit.

(4) Any other amount necessary to compensate the lessor for all
the detriment proximately caused by the lessee's failure to perform
his obligations under the lease or which in the ordinary course of
things would be likely to result therefrom.

you can collect prep fees when readying the apartment to be rented, you can collect ad fees for the unit, you can collect agency fees if you hire an agent to rent it (but I suggest it would only be available if that is how you typically find tenants)

(b) The "worth at the time of award" of the amounts referred to in
paragraphs (1) and (2) of subdivision (a) is computed by allowing
interest at such lawful rate as may be specified in the lease or, if
no such rate is specified in the lease, at the legal rate. The worth
at the time of award of the amount referred to in paragraph (3) of
subdivision (a) is computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus 1 percent.

you can even toss in some interest

(c) The lessor may recover damages under paragraph (3) of
subdivision (a) only if:

a limitation to being owed the remainder of the lease

(1) The lease provides that the damages he may recover include the
worth at the time of award of the amount by which the unpaid rent
for the balance of the term after the time of award, or for any
shorter period of time specified in the lease, exceeds the amount of
such rental loss for the same period that the lessee proves could be
reasonably avoided; or

you can only collect money if your lease says you can. If you have done something dumb like inserting a right to terminate with XX days notice, you can only collect up to XX days rent.

(2) The lessor relet the property prior to the time of award and
proves that in reletting the property he acted reasonably and in a
good-faith effort to mitigate the damages, but the recovery of
damages under this paragraph is subject to any limitations specified
in the lease.

if you rent the unit before the expiration date of the original lease, you cannot claim money from the first tenant for that period

(d) Efforts by the lessor to mitigate the damages caused by the
lessee's breach of the lease do not waive the lessor's right to
recover damages under this section.
(e) Nothing in this section affects the right of the lessor under
a lease of real property to indemnification for liability arising
prior to the termination of the lease for personal injuries or
property damage where the lease provides for such indemnification.

additional gobble dee gook

 

[FarmerJ]

So should your tenant find this site & come here for post move out advice regarding the deposit and you chose to make the tenant wait beyond 21 days to address this issue I hope you understand that those who have voluntarily replied to your posting are going to tell your tenant exactly what we would do to you if it was one of us suing you in small claims court. In the end here your states penalty to landlords could end up being applied to tenant deposit claim in court and even if the courts granted you a counter suit what they likely would do is start with 4,500.00 ( the amount tenant would get because you unfairly made the tenant wait) If the court went that route and what the tenant owed you would be deducted from that 4,500.00 which might erase what you are owed and still leave you with owing the tenant money ( yes that would just bite) You want to avoid that from happening ? simple as soon as the tenant moves out , get your fanny in there and take pictures , lots of them to show the units general condition and damage the tenant did if any. What you list on a deposit disposition letter doesn't have to add up to the same total you would sue for when your all done since reasonable cost to correct tenant damages and back rents owed could exceed the deposit.

 

[Morgan05]

ok, you won't listen to anybody here so listen to the law:
that means if the tenant breaks the lease and abandons the property, the lease is terminated and if the landlord terminates the lease (which you do when you issue a 3 day pay or quit notice) the lease also terminates. Are you happy now?

Thank you for posting the CA Civil Code. I am not sure of my terms that's why I was using (?) at times, and forgetting to at others.

Ignoring my improper terminology, the situation with the CA landlord and the above attorney’s advice, I feel, match my situation, whether you call the lease terminated or not. In both situations (mine & Los Angeles, CA landlord):

1) Tenant tells you they are moving early, before lease expires.
2) Do pre-moveout inspection if tenant requests
3) The tenant vacates the property, before the lease expires.
4) Do final inspection for damages & repairs.
5) Send tenant the Security Deposit Disposition letter showing the damages and costs of repair, minus unpaid rent & late fees. And, tell tenant I am withholding deposit, until the new tenant moves in. Then, I will refund remaining security deposit, if any.
6) Once new tenant moves in, send prior tenant the remaining security deposit or invoice them for balanced owed.

This really gets back to my original question.

 

[not2cleverRed]

Here's an idea: how about you go to the site you keep on mentioning here and ASK THE "EXPERT" YOURSELF rather than repeatedly cutting and pasting.

I think at this point you've copy and pasted the SAME item 3 times, not noticed that the moderator had to edit the stuff out of your posts, and boldly blundered on.

Conclusion: you're really just here to promote the other site and/or are a troll.

 

[Morgan05]

Here's an idea: how about you go to the site you keep on mentioning here and ASK THE "EXPERT" YOURSELF rather than repeatedly cutting and pasting.

I think at this point you've copy and pasted the SAME item 3 times, not noticed that the moderator had to edit the stuff out of your posts, and boldly blundered on.

Conclusion: you're really just here to promote the other site and/or are a troll.

I apologize.

I wanted to get others' opinions whether you think that attorney's advice was correct or ill advised. That's why I was posting here.

No. I am not a troll. I am somewhat ignorant on the rules of the board, which I was trying to find. I was checking for any messages I might receive from a moderator. But, didn't receive any. I deleted any links to other websites, thinking that might be enough. But apparently, it is not. If the moderator can direct me to the appropriate rules, I will read and abide by them. Sorry and I appreciate the responses and patience of this website.

 

[FarmerJ]

well by tomorrow you should know if the tenant has indeed moved out or not and if they didn't then your going to have to file for a unlawful detainer based on nonpayment. Make sure you include your filing fee along with all the unpaid rent.

 

[quincy]

... I am somewhat ignorant on the rules of the board, which I was trying to find ... I deleted any links to other websites, thinking that might be enough ... I will read and abide by them ...

When you registered, you agreed to certain terms and conditions. Here is a link to the terms and conditions you agreed to: https://www.freeadvice.com/resources/conditionsnew.htm

Please re-read above the bolded where it says (and I say "re-read" because I assume you read the terms and conditions prior to agreeing to them): "You agree NOT to post any other person's or firm's copyrighted material." Please re-read in the bolded portion where it says: "You agree that you will NOT use the FreeAdvice forum to post ... any advertisement ... or other commercial message ..."

I recommend you read the Terms and Conditions of the sites you visited. All of the content on those sites is copyright-protected and cannot be republished without permission from the holder of those rights.

It appears to me, from reading through your thread, that you have had the same question you asked answered several times over and you seem to be having some difficulty accepting the correctness of those answers. Asking the question over and over again is not going to change the correct answers already provided. At this point, I suggest you do what you want to do and accept whatever consequences come from those actions.

 

[Morgan05]

When you registered, you agreed to certain terms and conditions. Here is a link to the terms and conditions you agreed to: https://www.freeadvice.com/resources/conditionsnew.htm

Please re-read above the bolded where it says (and I say "re-read" because I assume you read the terms and conditions prior to agreeing to them): "You agree NOT to post any other person's or firm's copyrighted material." Please re-read in the bolded portion where it says: "You agree that you will NOT use the FreeAdvice forum to post ... any advertisement ... or other commercial message ..."

I recommend you read the Terms and Conditions of the sites you visited. All of the content on those sites is copyright-protected and cannot be republished without permission from the holder of those rights.

Thank you for the directions. I don't remember reading them, in the past. But, I have since.

I posted this at the end of my post, that was deleted:"Do you agree with the attorney’s advice and think the above steps are legal?"

I thought that may have been deleted by a moderator by mistake. Because, that was my original writing and am not sure the incorrectness of the statement. Can you tell me if that sentence is prohibitive, if so why? I will delete that from this post too, if necessary. I just wanted to learn. So, I don't make the same mistake in the future.

 

[Morgan05]

In YOUR situation YOU initiated the Pay or Quit; a very different situation; you gave them the option to pay what they owe or "quit" the rental unit; they chose the latter.Gail

In my case, the 3 day notice is waived as partial payment (by subsidy) is accepted. The situation is more simply a tenant moves 3 months early breaching the lease, before the lease is expired. By definition, they cannot give proper notice to move.

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."

The lease terminates when the tenant vacates.

AGAIN - once the tenants vacate, they have breached the lease and it is terminated.

21 days after vacating is only part of 1950.5 (g)(1). 2 things have to happen to comply.

1) Tenant is given itemization and security refund within 21 days of vacating property.
2) This must be after either the landlord or tenant provide a notice to “terminate the tenancy” (e.g., 30 day, 60 day notice, etc.) or after 59 calendar days prior to the expiration of lease.

When a normal tenant (no breach) moves, the landlord is able to comply with “part 1” AND “part 2.” Saying the mantra of 21 days after vacating is enough to comply with 1950.5 (g)(1).

On the other hand, if a tenant moves 3 months early breaching the lease, the landlord can only comply with either “part 1” or “part 2.” The landlord is not able to comply with BOTH parts of 1950.5 (g)(1). This is the result of the tenant breaching the lease, not the actions of the landlord.

CA Civil Code 1950.5 (g)(1):

No later than 21 calendar days after the tenant has vacated the premises, but not earlier than the time that either the landlord or the tenant provides a notice to terminate the tenancy under Section 1946 or 1946.1, Section 1161 of the Code of Civil Procedure, or not earlier than 60 calendar days prior to the expiration of a fixed-term lease, the landlord shall furnish the tenant, by personal delivery or by first-class mail, postage prepaid, a copy of an itemized statement indicating the basis for, and the amount of, any security received and the disposition of the security and shall return any remaining portion of the security to the tenant.

 

[Zigner]

In my case, the 3 day notice is waived as partial payment (by subsidy) is accepted. The situation is more simply a tenant moves 3 months early breaching the lease, before the lease is expired. By definition, they cannot give proper notice to move.







21 days after vacating is only part of 1950.5 (g)(1). 2 things have to happen to comply.

1) Tenant is given itemization and security refund within 21 days of vacating property.
2) This must be after either the landlord or tenant provide a notice to “terminate the tenancy” (e.g., 30 day, 60 day notice, etc.) or after 59 calendar days prior to the expiration of lease.

When a normal tenant (no breach) moves, the landlord is able to comply with “part 1” AND “part 2.” Saying the mantra of 21 days after vacating is enough to comply with 1950.5 (g)(1).

On the other hand, if a tenant moves 3 months early breaching the lease, the landlord can only comply with either “part 1” or “part 2.” The landlord is not able to comply with BOTH parts of 1950.5 (g)(1). This is the result of the tenant breaching the lease, not the actions of the landlord.

CA Civil Code 1950.5 (g)(1):

No later than 21 calendar days after the tenant has vacated the premises, but not earlier than the time that either the landlord or the tenant provides a notice to terminate the tenancy under Section 1946 or 1946.1, Section 1161 of the Code of Civil Procedure, or not earlier than 60 calendar days prior to the expiration of a fixed-term lease, the landlord shall furnish the tenant, by personal delivery or by first-class mail, postage prepaid, a copy of an itemized statement indicating the basis for, and the amount of, any security received and the disposition of the security and shall return any remaining portion of the security to the tenant.

One can only argue with a wall for so long. So long wall.

 

[Silverplum]

When you registered, you agreed to certain terms and conditions. Here is a link to the terms and conditions you agreed to: https://www.freeadvice.com/resources/conditionsnew.htm

Please re-read above the bolded where it says (and I say "re-read" because I assume you read the terms and conditions prior to agreeing to them): "You agree NOT to post any other person's or firm's copyrighted material." Please re-read in the bolded portion where it says: "You agree that you will NOT use the FreeAdvice forum to post ... any advertisement ... or other commercial message ..."

I recommend you read the Terms and Conditions of the sites you visited. All of the content on those sites is copyright-protected and cannot be republished without permission from the holder of those rights.

It appears to me, from reading through your thread, that you have had the same question you asked answered several times over and you seem to be having some difficulty accepting the correctness of those answers. Asking the question over and over again is not going to change the correct answers already provided. At this point, I suggest you do what you want to do and accept whatever consequences come from those actions.

I notice the poster deleted the part I bolded in his response to you. So I thought I'd repost it:

It appears to me, from reading through your thread, that you have had the same question you asked answered several times over and you seem to be having some difficulty accepting the correctness of those answers. Asking the question over and over again is not going to change the correct answers already provided. At this point, I suggest you do what you want to do and accept whatever consequences come from those actions.

(And, as usual, I agree with Zigner. )