Lanlord suing for last month's rent and keeping security!

[Claire]

I am having a dispute with my landlord about last month's rent vs. security deposit. I know that if I pay him my last months' rent - he WILL NOT return my security deposit due to another issue that has been ongoing for the last 8 months....a door that was inadvertently broken by a friend of mine. (a small piece of wood flaked off due to the flimsy material used) The landlord had it partially fixed for $500 and says it should be another $1000 to restore completely.
We consulted carpenters who told us the door
could've been fixed for $175. So we told the landlord that we'd give him $400 for the door and his trouble, etc.....he wants the $1500 and already took my friend to criminal court - he didn't win, the judge reduced the complaint to a ticket since he knew that the landlord was created bogus criminal charges.

Now, I know that if i paid the last month's rent he would have kept my security deposit and take me and my friend to court for the supposed $1500 bill (of which $1000 of the supposed work has yet to be done!) So i sent a very nice letter indicating that in lieu of my last month's rent (i'm moving out june 30th) he could use my security deposit.

I received notification yesterday from the Clerk's office that I was being sued for the last month's rent and my friend and I were both being sued for the $1500 for the door.

This seems very unfair to me - am i nuts! Does anyone have any suggestions?

 

[JMK]

The rules for keeping a tenant's security deposit vary from jurisdiction to jurisdiction. However, many jurisdictions have strict rules regarding retention of the security deposit, such as:

1. The deposit must be kept in escrow and the account number provided to the tenant upon request;

2. The landlord and tenant must have signed a move-in checklist noting any existing damages in the apartment;

3. The landlord must execute a move-out checklist noting any new damages to the apartment excluding ordinary wear and tear;

4. Except by written waiver, security deposits may not be applied to unpaid rent.

I would strongly suggest that you contact an attorney or a Tenant Association BEFORE signing any waivers of your security deposit for the last months rent, especially if your landlord has not met the technical requirements for retaining the deposit.

 

[Tracey]

You're in quite a mess here.

1. You are responsible for the door. You will have to pay to fix it. However, L has the burden of proving how much it costs to fix the door. He can't gouge you, nor can he spend an unreasonable amount of money on repairs. So if you can get your carpenter to show up (subpoena him!), L will get $175. Have you already paid the $400 you offered? If not, hire the carpenter yourself to fix the door and save the receipts. Then L can't deduct anything from your deposit.

2. Tenants may not decline to pay the last month's rent because L can use the security deposit to cover it. Rent & security deposits are NOT the same thing. You messed up and will end up paying the June rent + costs + attorney fees.

3. Your only hope is to argue that your "anticipatory breach" of the lease was justified by L's declaration that he was going to charge you $1500 for a $175 door repair, even after you objected. Anticipatory breach is allowed when party A has stated an intent to breach the lease and/or has refused to give party B reassurances of performance. Under those circumstances, B may mitigate her damages by breaching the contract rather than incurring the expense of fulfilling a contract she knows A will not honor. (Check out the NJ Uniform Commercial Code, Article 2A - Leases) L showed his intent to breach the lease first by charging such a ridiculous amount, justifying your decision to setoff the sec.dep. against the June rent.

4. How is L suing you? Small claims or summary eviction? He can't sue your friend as part of an eviction.

5. You aren't bound to the $400 you offered. That was an offer of settlement and is not evidence of liability or the amount of damages.

Answer the suit by pleadingthe affirmative defense that your actions were justified under the doctrine of anticipatory breach. L won't know what it is & the judge's jaw will drop.


Next time, get estimates to repair the door before reporting the damage, or just repair it yourself.

Good luck.

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.