"Slumlord"

[asianapple]

What is the name of your state? California

Alright, kinda long story.
First, the apartment was not ready on the Commencement Date (November 1, 2006) or within 5 calendar days from that date. According to the language of the Lease, "Tenant is not in possession of the Premises. If Landlord is unable to deliver possession of the Premises on Commencement Date, such Date shall be extended to the date on which possession is made available to Tenant. If Landlord is unable to deliver possession within 5 calendar days after agreed Commencement Date, Tenant may terminate this Agreement by giving written notice to Landlord, and shall be refunded all Rent and security deposit paid. Possession is deemed terminated when Tenant has returned all keys to the Premises to the Landlord."
We did not move into the apartment and sign the lease until November 17, 2006.
After moving in, we discovered that we had a gas leak and couldn't get hot water, gas to cook with, or gas to heat our apartment until the Landlord got a plumber to fix the pipe where the leak was. This took 4 days (from November 17 to 20) for the Landlord to fix.
Pursuant to the lease, all Move In funds were accounted for, including rent for December 2006 (we had originally given the Landlord $850 for 1st month's rent and $1275 for security deposit). We assumed that, since we were not able to move into the apartment until November 17, the last 13 days in November had been comped and our 1st month's rent check had been applied to December.
On December 4, 2006, our Landlord contacted us stating December's rent was past due. When we pointed out that the Lease stated December's rent was paid, he told us to talk to his attorney.
We sent him a letter stating that December's rent, pursuant to the Lease, had been paid and we didn't owe him any rent until the 1st of January.
He called the next day to tell us that we owed him November's rent.
We sent him a letter stating that first he asked us for December's rent and now he's asking for $850 for November's rent when we didn't execute the lease until November 17th.
Then he told us if we didn't pay November's rent he would issue us a 3 day notice. He placed the 3 day notice on our screen door on December 6th. According to the notice, he only completed half of the service on option 3 of the 3 options you have to serve the notice. It states that you either 1. Personally serve the notice to the Tenant 2. Leave notice with a person of suitable age at Tenant's residence 3. Affix notice to a conspicuous place on the Premises and mail a copy to the Tenant at the Premises (never got the mailed copy).
We sent him another letter stating we did not owe him rent until Jan 1, 2007.
We received a call from his attorney on December 11th stating if we didn't pay November's rent by the end of the day, they were going to file an unlawful detainer (He never filed the detainer).
We decided to pack up most of our personal property, put it in storage, and travel to Arizona where family lived and we would have resources to take care of this matter properly (December 14).
We did not notify the Landlord at that time because our Washer/Dryer and Refrigerator were still in the apartment. We knew we were paid up until the end of December and we knew he couldn't enter the Premises without 24 hour written notice (as stated in the Lease).
On January 5, we faxed a letter to our Landlord stating we had vacated the Premises on Dec 14 and the utilities had been turned over into his name by Dec 17. We also told him that we were having movers come for the rest of our property (washer/dryer and refrigerator) on or by Jan 12. In the letter, we stated we were also wanting to terminate the Lease due to a Breach of Contract on his part and we were requesting a refund of our money.
On Jan 10, we received a message from the Landlord stating we had 18 days to contact him and we didn't, so he sold our washer/dryer and refrigerator.

Here's my questions:

1. What are my legal rights in reference to this specific situation?
2. What are his legal rights in reference to this specific situation?
3. Could the Landlord enter the Premises without prior notification?
4. When does the 18 days he's talking about to be able to sell our property begin?
5. Did he ultimately have legal right to sell our property without prior consent?
6. I'm taking him to Small Claims Court. What are my chances of recovering:
all Rent and security deposit paid
$400 for the 4 days we went without gas
reimbursement for the washer/dryer and refrigerator
penalty for not returning the property
Storage Fees for the time we've had to store our belongings due to this situation
Travel expenses for dealing with Small Claims
Loss Wages
Court Costs
Serving Fees
(Total = $4718)

Sorry this post is so long...but it's a lot of information.
If anyone can please tell me realistically my chances, it would be greatly appreciated!What is the name of your state?

 

[Paddy Reagan]

Your situation is complicated and many errors appear to have been made by both parties. Let me see if I can sort things out and offer some advice.

"We did not move into the apartment and sign the lease until November 17, 2006."

If the lease was signed on this date and it was your first day of legal occupancy, the lease should reflect these dates. You gave the landlord $850 as prepaid rent for the first month. This should have been prorated and applied at a rate of $27.95 per day for 14 days so that $391.30 was paid toward November and the balance to pay for 16 days in December.

After you discovered the gas leak did you continue to live in the apartment? If the unit was not habitable you may have a point to argue. But if you occupied the space and no formal agreement was reached with the landlord to reduce or eliminate the rent for these days, you'll probably have a tough time getting a reduction. If you stayed in a hotel and have the receipts or if you stayed with friends who will provide an affidavit to that effect, have them ready for small claims court or arbitration.

"We assumed that, since we were not able to move into the apartment until November 17, the last 13 days in November had been comped and our 1st month's rent check had been applied to December."

When money and/or law is involved, never, never assume. Ask questions, Get answers. Get them in writing!

"On December 4, 2006, our Landlord contacted us stating December's rent was past due."

No, if you prepaid the first month's rent on November 17, over half of the December rent was paid. By rights you should have paid that balance on the first of December.

"He called the next day to tell us that we owed him November's rent."

This makes no sense at all. No matter what the sequence of events, you had prepaid November. If the three-day notice specified the dates of non-payment as November, or even December, there was probably an error. (If the three day notice was for the rent due for the last half of the month, it was probably valid.) Aggressive landlords usually offer a three to five day grace period and post a three day notice on the forth or sixth day after the rent is due. Assessing those late fees is a source of extra income.

"We decided to pack up most of our personal property, put it in storage, and travel to Arizona where family lived and we would have resources to take care of this matter properly (December 14)."

This was the biggest mistake of all. Instead of staying in place and defending your rights you moved away. To make matters worse you left behind valuable property, then had the utility company remove your name from their accounts. In the eyes of the landlord, you abandoned the apartment without notice. Of course he entered the unit. It was no secret you had moved away and turning off the electricity confirmed it.

"On January 5, we faxed a letter to our Landlord stating we had vacated the Premises on Dec 14 and the utilities had been turned over into his name by Dec 17. We also told him that we were having movers come for the rest of our property (washer/dryer and refrigerator) on or by Jan 12."

The fact is, you had not vacated the premises. You left property there and told him you'd pick it up on January 12, almost a full month after you moved out. Ultimately, he sold it. Read your lease and you'll likely find a section on abandoned property and the rights of the landlord and tenant.


You asked about your chances in small claims court. I would have to say not very good. There was some legitimate confusion about what rent was due and when but moving away may have been the tactical error. You violated three basic rules:

a. You did not give notice (until Junuary 5, 22 days after you moved away).
b. You did not return the keys to the landlord, intending to come back at some later date to remove your washer/dryer and refrigerator.
c. You abandoned property inside the unit.

From a landlord's perspective, the "rentability" of an apartment is an essential concern. If a tenant moves out in the middle of the night and leaves a unit in perfect condition so that it can be shown and leased quickly, there's not much to lose. In your case, each of the three factors listed above caused delays in his ability to rent.

Good luck in small claims court. I know you believe you were wronged. So does the landlord. Maybe you can salvage some of the security deposit if he wants to settle the matter. But, I wouldn't count on much more.

 

[Cvillecpm]

1. What are my legal rights in reference to this specific situation?

Go to the Nolo Press website and read their instructions for CA SCC.
2. What are his legal rights in reference to this specific situation?

Your landlord can hire an attorney and file in muni court and elevate the case out of Small Claims since he may well have counter-claim against you.
3. Could the Landlord enter the Premises without prior notification?

Yes, per the lease and in an emergency. If you requested repairs, he can enter.

4. When does the 18 days he's talking about to be able to sell our property begin?

When he takes possession.
5. Did he ultimately have legal right to sell our property without prior consent?

Yes - if you don't pay he can sell or have the sheriff sell it.

6. I'm taking him to Small Claims Court. What are my chances of recovering:

all Rent and security deposit paid * may be OK
$400 for the 4 days we went without gas * No way
reimbursement for the washer/dryer and refrigerator
penalty for not returning the property * probably not
Storage Fees for the time we've had to store our belongings due to this situation * probably not
Travel expenses for dealing with Small Claims * none
Loss Wages * none
Court Costs *if you win, yes
Serving Fees * if you win, yes
(Total = $4718)

 

[LindaP777]

OK, this whole situation is a mess, and you are partly responsible! Why on earth did you assume the remainder of November's rent was comped? Jeez, you should have asked if "first month rent' was being applied to December. When the situation is unreasonable, you go to court, not Arizona. You had a great chance of winning with a judge sorting it all out. Instead you;

We decided to pack up most of our personal property, put it in storage, and travel to Arizona where family lived and we would have resources to take care of this matter properly (December 14).

Then you had;

the utilities had been turned over into his name Dec 17.

But did not notify him of this until January 5, by faxing him a letter. But more than likely, he was notified the utilities back into his name a few days after Dec 17. So he had every right to assume you vacated the apartment.

Then you say;

We also told him that we were having movers come for the rest of our property (washer/dryer and refrigerator) on or by Jan 12.

OK, now you owe him rent for part of November and part of January.

You keep making things worse. The only thing you can do now is go to court when the landlord sues you and let the judge sort it out. Be sure and file a counter claim for your appliances. But other than getting money back for your appliances, I don't see you coming out ahead.