PM refusing to refund holding fee .... (Oregon rental home)

[Glaskittan]

Re: OREGON rental property -

We applied for rental home, we were approved and on 8/23/19, we paid a holding fee ($1500) plus move-in charge (total of $3,695).

Our lease contract was to be signed by 8/31/19, so on 8/30/19, I made a trip sspecifically that I could view the home prior to signing the lease agreement.

Here is the message sent to PM the following morning on 8/31/19:

"We stopped by the home last night and found that there are countless problems and repairs needed throughout, along with the fact that there has been no thorough cleaning from previous tenant. There is human hair on/in tub and all along the baseboard of the master bathroom. The house has not been painted inside properly, there are many hazards including loose toilets and unsafe fan housings/mountings. The home is not in any condition to be rented out. Also we thought this would be 3 full bedrooms, but there are actually only 2 on the lower level just off on same entrance as the door to garage (and one of these bedrooms is so small it could not accommodate our daughter's bed), plus a bonus room or family room on main floor right as you walk into the home. It is a very strange layout for a home and how the "bedrooms" are located. It would have been helpful if there had been a video walk-through for us to view prior to making any decisions regarding this home.
I have included a link showing some of the unacceptable problems we found last night. We will swing by during the daytime to see how the home looks, but unfortunately, I am almost 100% certain that this home is not going to work for our family to move into.

Please stop our application for this rental immediately.

Thank you.

(End of message sent to PM)

So no lease agreement was ever signed in full. We notified on 8/31 @ 7am that the home was not going to work out since the home did not match the listing for this home (saying "2 good sized bedrooms"...). Plus the home needed countless repairs, painting of all walls, and a thorough cleaning.

Now PM has relisted home but has altered wording so it now advertises home as "2 bedrooms" only (rather than "good-sized" to describe the room sizes). I asked PM why they altered home description, and the response given to me was, "I changed the Ad so we can avoid this conflicting “opinion of a good bedroom size” in the future."

Does the PM have the right to keep our holding fee ($1500), given the misrepresentation of the listing for this property plus the cleaning & repair issues that would have had to have been completed prior to us moving in? (Move in date was supposed to be 9/01/19.)

 

[Taxing Matters]

A lot depends on the agreement you had for the rental application. Was there any agreement in writing about this? For example, was there something about when the fee would be refunded in the rental application you signed?

 

[Glaskittan]

No it was supposed to be a non-refundable fee.

But we would not be asking for the refund had the home at least matched the listing description or been worded as it is now in their new listing.

 

[FarmerJ]

If you had moved in you could have called building inspections and let them order the LL to correct mechanical /structural issues and also have them evaluate what the LL called the third bedroom and use the inspectors written report in court against the LL if you had to. BUT now since you refused to move in do you have pictures to document the places condition ?

 

[Glaskittan]

If you had moved in you could have called building inspections and let them order the LL to correct mechanical /structural issues and also have them evaluate what the LL called the third bedroom and use the inspectors written report in court against the LL if you had to. BUT now since you refused to move in do you have pictures to document the places condition ?

I have the video documentation of the walk-through, as well as the video of master bath/bedroom areas showing condition and repairs needed (link to video posted in my original post).

 

[Taxing Matters]

No it was supposed to be a non-refundable fee.

So does that mean you agreed to the fee being nonrefundable even though you hadn't even looked at the place yet and without any exceptions if the place was in poor condition?

 

[FarmerJ]

well all I can offer is that Oregon is a tenant friendly state and if you take the LL to court perhaps a judge will agree with you after seeing the video that it wasn't ready to be rented out, going that route is a total crap shoot as to how a judge will see it and even if the judge found in your favor , collecting it is another story if the PM wont easily give it up and pay you.

 

[Gail in Georgia]

Unfortunately, a holding fee is typically provided to take the rental property off the market and hold it for the interested applicant. It is typically non-refundable if the applicant decides to back out. As previously mentioned, you can consider taking the landlord/management to court with the video as evidence IF the court will spend the time viewing this (some will not especially with a 10 minute video and complaints of issues such as hair). If at all possible it is a good idea not to get into this holding fee business because managements argument will be that they lost business if they have to return every fee because folks want these back over what they will argue are minor issues or repairs that can be done after a lease is signed.

Gail

 

[FlyingRon]

But we would not be asking for the refund had the home at least matched the listing description or been worded as it is now in their new listing.

You can't win making claims based on "listings." They're not offers or contracts, just advertisements. It was incumbent on you to make your inspections before committing.

 

[Shadowbunny]

Calling bedrooms "good-sized" is completely subjective. As to the cleaning, for all you know the cleaning crew was scheduled for later on. Lack of painting nor a loose toilet seat is not going to render the house uninhabitable. Given all of that, I don't think any judge would find your objections enough to overcome the non-refundable deposit clause.

But I'm curious: why in the world didn't you ask for a video walk-through before you made handed over a deposit?

 

[Glaskittan]

Unfortunately, a holding fee is typically provided to take the rental property off the market and hold it for the interested applicant. It is typically non-refundable if the applicant decides to back out. As previously mentioned, you can consider taking the landlord/management to court with the video as evidence IF the court will spend the time viewing this (some will not especially with a 10 minute video and complaints of issues such as hair). If at all possible it is a good idea not to get into this holding fee business because managements argument will be that they lost business if they have to return every fee because folks want these back over what they will argue are minor issues or repairs that can be done after a lease is signed.

Gail

Thank you, Gail, for your response. Do you think that there would be any argument about the misreprentation in the listing about the room sizes being "good sized" (which is how the listing was worded when we applied for the home), and the fact that the PM has since changed the wording in their listing to now read just "two bedrooms"?

Thank you.

 

[FlyingRon]

"Good sized" has no meaning. It's puffery. Even if they said the rooms were 300 sf in the listing, it's still not likely actionable.

 

[adjusterjack]

Do you think that there would be any argument about the misreprentation in the listing about the room sizes being "good sized" (which is how the listing was worded when we applied for the home), and the fact that the PM has since changed the wording in their listing to now read just "two bedrooms"?

No to both. "Good sized" is in the eye of the beholder. And the fact that the PM has changed the wording is no more relevant than a property owner fixing a defect after someone has fallen.

You relied on puffery and handed over the money that you agreed was non-refundable.

That being said, you have nothing to lose except a filing fee and a process service fee if you want to sue. Small change compared to the $5000 plus that you stand to lose. Worth a shot, I'd say.