Broke Lease/Deposit Disposition

[CAGuy25]

I live in CA.

On the 27th of November I moved out of an apt that I had a 12 month lease for. This was 6 months prior to the end of the lease. 30 day notice was given. I understand that I have already put myself at risk by breaking the contract. I have questions on the following items.

My landlord has sent a letter to me proposing what be done with my deposit. He sent this letter on the 27th of December, my understanding is that he is required to send a letter regarding the disposition of my deposit within 21 calendar days. Is this correct? Since he didn't send the deposit disposition in a timely manner, if it came down to going to court, would I be able to go after him for any fines because he didn't send the disposition to me in time?

His proposal is to keep my deposit(an entire months rent), charge me for the remainder of the month of November, and half a month of January. The total I would owe would be 405.50.

Now my understanding is that he can collect from me the actual damages that he suffers due to my leaving the apt early. He has advised me that the apt will be rerented on the 15th of January. He will be rerenting the apt at a higher rate, $100 more a month, since this person will be renting at the higher rate for the remaining 4.5 months of my lease. This will cause a $450 increase in his income for those months. Does that mean that I shouldn't be responsible for $450 of the damages?

He also initally tried to rent out the apt for $200 more a month, and finally settled on only an extra $100 a month by the time that we were moving out and he had been unsuccessfully attempting to rent it for a month. My understanding is that he wasn't performing a good faith effort to rerent the apartment by requesting a higher rent amount.

Which of these situations should I attempt to do:

A. Accept the charges and be glad I'm out of the apartment.

B. Fight the charges and claim that since he's getting $450 more over the next 4.5 months, that I shouldn't be responsible for the additional monies and that he can keep the deposit.

C. Fight all of the charges and claim that he isn't due anything since he didn't perform a good faith effort to rerent the apartment. But offer to allow that he keep 1/2 the deposit.

D. Fight all of the charges and claim that he isn't due anything since he didn't perform a good faith effort to rerent the apartment.

 

[abezon]

He can't keep any of your deposit. Check out CA Civil Code section 1950.5. Since he did not send the letter within 21 days of your move out, he can't keep any of the deposit. He can sue you for any damages that exceed the deposit, however.

His damages are the rent he lost by you terminating early, plus the costs of rerenting (advertising, tenant screening if he paid it, etc.). You may then offset his damages with your security deposit and the extra rent he will receive for the remainder of the lease. You can also argue that his efforts to rerent the place were in bad faith since he jacked the rent $200/month before trying to rent the place. If he'd kept the rent where it was, he'd have rented the place immediately and would not have lost any rent. Therefore, the rent loss is his fault.

Conclusion: he will have to return your entire deposit, and may have to give you $600 in punitive damages, and he can only collect damages from you if he can show net damages that exceed the damage deposit. Your failure to mitigate damages & bad faith claims should prevent him from doing so. You might even be able to convince the judge to award you the extra $100/month or to refund the rent collected/claimed for Dec/Jan.

Don't bother trying to negotiate with him. Just prepare your case really well & practice it in front of a few people to see if they can follow your logic. You may want to design some tables/visual aids. You could show your presentation to a lawyer & see if the lawyer would take the case based on the possibility of getting attorney fees from LL.

 

[JETX]

Before ANYONE can answer factually as to your rights, you need to provide some information....

1) What was the date of your move-out notice?
2) Was it in writing?
3) Did your notice include your new address?
4) What day did the move-out notice indicate would be your last day?
5) Was there anything in the lease as to accelerated rent, liquidated damages, etc. in the event of breach?
6) On your last day, did you return ALL access (keys, openers, etc.)??
7) Were you current on your rent through your last day of occupancy??

 

[CAGuy25]

Originally posted by JETX
Before ANYONE can answer factually as to your rights, you need to provide some information....

1) What was the date of your move-out notice?

October 28, 2002

2) Was it in writing?

Yes

3) Did your notice include your new address?

Yes, address was also given to the manager

4) What day did the move-out notice indicate would be your last day?

November 28, 2002

5) Was there anything in the lease as to accelerated rent, liquidated damages, etc. in the event of breach?

No

6) On your last day, did you return ALL access (keys, openers, etc.)??

Yes

7) Were you current on your rent through your last day of occupancy??

Yes

 

[maxim2]

Yes it is considered Bad faith to try and re-rent for $200 a month more and then try and stick the lease holder with the rent because it's still vacant.

You can aruge the landlord by trying to get $200 a month more in rent, was Fullly WILLING to assume the risk in renting the apartment for Far more then the market will bear.

 

[JETX]

Ignore Maxim.... he is a forum troll and offers NO legal value to his posts.

With your provided information (well done!), Abezons post is correct.

Send your former landlord a real nice, polite, professional letter (certified RRR) pointing out that the deposit accounting was NOT provided in a timely manner as required by CA Civil Code 1950.5, and due to that, the landlord forfeits the right to any deductions. Include a note as to the allowed $600 in punitive damages if you were to decide to take action against him/her. Offer to settle for a full refund to be received within 10 days from receipt, or you will take action as provided by the Code and will include a request for the allowed punitive award.

Then, see what happens.... if you do not get your refund, aim your car to the local small claims court.

 

[CAGuy25]

Here is the letter that I wrote, please let me know if it's too easy or too harsh.

Thank you for your letter regarding the disposition of our deposit. We appreciate your offer, however, we offer the following.

We understand that we are responsible for any and all damages that we brought on you due to breaking our lease contract. However, we feel that the following is an appropriate way to break down the damages.

We left the apartment on the 28th of November, you have mentioned that the apartment will be rerented out on the 15th of January. This means that the apartment was vacant for 47 days. Our rent was $795 or $26.50 per day for a total amount of damages of $1,245.50. However, you mentioned that the new tenant is renting out the apartment at a higher rate of $895 a month. This means that over the next 4 months of our would be tenancy you will receive an additional $400 over what you would’ve received from us. This counts against the damages that you will actually experience, thus lowering the amount from $1,245.50 to $845.50.

We also realize that you sent us the deposit disposition on December 27th per the postmark on the letter, California Civil Code…. States that a deposit disposition must be received no more than 21 calendar days from the date of vacancy, this would’ve been the 19th of December. The Civil Code also states that should this matter make its way to court, we would be eligible for a penalty of $600 from you. What we would propose is that rather than bring this matter to court and have to go through all this, that we split the difference of the $600 penalty and subtract the $300 from the remaining amount owed. This would leave an amount owed of $545.50. Due to the deposit of $795, this would leave an amount owing to us of $249.50.

Should this matter proceed to court ,we have also been informed by the Sacramento Fair Housing Authority as well as an independent attorney that we have a case for the fact that per California Civil Code ….. you initially made a bad faith effort to rerent the apartment as required by the code, considering the fact that upon learning of our intent to vacate you made an attempt to rerent the apartment for $995, $200 more than you would’ve received from us over the same period, and only after 1 month of failing to rent the apartment did you lower the rent to $895.

Thank you for your time and your patience.

 

[abezon]

I think it's too easy. The law is completely on your side, yet you start by saying you owe him money. Uh-uh. Tell him that, per CaCC 1950.5, he owes you $795 because he did not send the damage deposit accounting in time. Further, he will not be able to collect any money from you for "damages" unless he can prove damages that exceed $795. His attempt to rent the apt for $200 more per month constituted a bad faith attempt to rerent the apt. Therefore, any lost rent is due to his bad faith; not to your breaking the lease. Even if he could show lost rent, you would then be entitled to an offset of $400, representing the extra rent he will collect after rerenting the place for $100 more per month.

Tell him he can mail you a check for $795 within 10 days, or you will sue him & he will likely end up paying you more than that when the court assesses costs & punitive damages against him.

He will take the letter to an attorney, who will tell him he messed up & to get out for only $795 & consider himself lucky.

 

[JETX]

"We understand that we are responsible for any and all damages that we brought on you due to breaking our lease contract."
** Never, EVERY admit to being responsible for unclear 'damages'!! This has no benefit to you, and can be used to a great advantage by them (the 'enemy').

"However, we feel that the following is an appropriate way to break down the damages.

We left the apartment on the 28th of November, you have mentioned that the apartment will be rerented out on the 15th of January. This means that the apartment was vacant for 47 days. Our rent was $795 or $26.50 per day for a total amount of damages of $1,245.50."
** As noted above, do NOT provide ammo for them to use against you!!

"However, you mentioned that the new tenant is renting out the apartment at a higher rate of $895 a month. This means that over the next 4 months of our would be tenancy you will receive an additional $400 over what you would’ve received from us."
** Contrary to others opinions, the fact of the higher rent from other tenants is of no value or benefit to you. The landlord can simply state/show that the rent being charged currently is market value.... and even that YOU were being given a 'discounted rent'.

"This counts against the damages that you will actually experience, thus lowering the amount from $1,245.50 to $845.50."
** Again.... ammo for them. Don't concede ANYTHING.

"We also realize that you sent us the deposit disposition on December 27th per the postmark on the letter, California Civil Code…. States that a deposit disposition must be received no more than 21 calendar days from the date of vacancy, this would’ve been the 19th of December. The Civil Code also states that should this matter make its way to court, we would be eligible for a penalty of $600 from you."
** Okay, now you are getting it!

"What we would propose is that rather than bring this matter to court and have to go through all this, that we split the difference of the $600 penalty and subtract the $300 from the remaining amount owed. This would leave an amount owed of $545.50. Due to the deposit of $795, this would leave an amount owing to us of $249.50."
** Nope. Take this out. Remember, no concession or admission!

"Should this matter proceed to court, we have also been informed by the Sacramento Fair Housing Authority as well as an independent attorney that we have a case for the fact that per California Civil Code ….. you initially made a bad faith effort to rerent the apartment as required by the code, considering the fact that upon learning of our intent to vacate you made an attempt to rerent the apartment for $995, $200 more than you would’ve received from us over the same period, and only after 1 month of failing to rent the apartment did you lower the rent to $895."
** As noted above, raising this issue now is counterproductive and of little value.

Your 'issue' is simple.... they didn't comply with the CA Code.... and lose there right to ANY deductions. Leave your first letter at that. If you need any further support for your case, then you can bring in these other issues. Leave them out of your very clear, factual, 'failure to comply' complaint.

 

[CAGuy25]

So..basically he's not entitle to any of the deposit whatsoever. My understanding is that I"m still responsible for damages due to my breaking the lease. Is this not correct? Is the fact that he missed the 21 day deadline, remove any and all rights by him to collect money from me?

 

[JETX]

"Is the fact that he missed the 21 day deadline, remove any and all rights by him to collect money from me?"
** Not necessarily. There have been several cases where the courts have determined that the landlords failure to comply does bar his deductions, but that it not literally what the statutes say. At this point, that should certainly be your first position. If warranted, you can then alter it as needed to offer some deductions in return for a larger, or no debate, return.

CA Civil Code, §1950.5
"(f) Within three weeks after the tenant has vacated the premises, 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."

"(k) The bad faith claim or retention by a landlord or the landlord's successors in interest of the security or any portion thereof in violation of this section, or the bad faith demand of replacement security in violation of subdivision (i), may subject the landlord or the landlord's successors in interest to statutory damages of up to
six hundred dollars ($600), in addition to actual damages. The court may award damages for bad faith whenever the facts warrant such an award, regardless of whether the injured party has specifically requested relief. In any action under this section, the landlord or the landlord's successors in interest shall have the burden of proof as to the reasonableness of the amounts claimed or the authority pursuant to this section to demand additional security deposits."

 

[CAGuy25]

Right, all that is well and good, but the fact is is that that would be my counterclaim, his initial claim would be for damages. So I could argue all I want that he has no right to my deposit and should be awarded that plus $600, and then the judge can come back and award him the reasonable damages for that time period and it would end up as a virtual wash. Wouldn't it be better that I offer the settlement as stated above, with slight modifications to not incriminate myself, and get this whole matter settle amiably? Or do you think I have an honest chance at getting back the deposit and getting the bad faith judgement as well, should it come to that?

 

[JETX]

With all due respect, I really don't see any positive from a continued 'what if' thread of the different scenarios that MIGHT arise, depending on what someone else may or may not due.

Questions asked. Advice offered. Yours to accept or decline.

Hope that this works out best for you.

 

[CAGuy25]

Sorry, just trying to clarify comments that were unclear.

 

[CA. Landlady]

A landlord DOES NOT have a duty to mitigate damages until AFTER a person breaches the contract which in this case would be after the resident moved so there is NO standing or good argument that will hold water with respect to what the landlord was attempting to rent the premises for before the resident moved out.

A resident who breaches a contract will not receive credit should the landlord procure a new customer who pays more.

I would be VERY surprised if a court in CA. would view the landlord acted in bad faith even though he was remiss in sending out the deposit disposition on or before 21 days. Especially, since the resident BREACHED THE CONTRACT. I realize that's what the statute reads with deposit issues but in real life it just doesn't fly. The landlord will likely have the sympathy of the court. Besides, what was the post mark date of the letter/disposition envelope?

You should be happy the landlord found a new customer and pay him the balance of rent due which I believe you said is $400 or so dollars. Then, ask the landlord if he will give you a positive rental reference in the future. I suggest you think about it and your future needs !!!!!