Sued by Ex-landlord

[jdexl1]

I'm being sued in small claims court in Oregon and I'm looking for some advise or comments from anyone whose been in a simular situation.
Here's the story so far,
My wife & I rented a house in Oregon on a one year lease for $575 a month.
After the lease expired, we continued to live in the house for over 1½ years on a month-to –month agreement as was implied in our original lease.
On or about May 25, 1999, I personally hand delivered written notice to landlord that we were moving out by July 1, 1999 and asked verbally and in writing if deposits could be used to cover last month’s rent.
The Landlord agreed verbally.
We were completely moved out by June 30 1999
We did left the house messy, but undamaged (i.e. Left carpets on hardwood floors, left a working microwave in kitchen, dirt on floors, dusty, etc)
We went by our landlord’s home on June 30, 1999. No one was home so we put the rental keys in their mailbox.
Had our mail forwarded to new address, but never heard from ex-landlord.
Ex-landlord kept all deposits and never sent notice of why. We assumed that we were even.

11 months later,
Our ex-landlord showed up at my children’s elementary school on or about May 18, 2000 and told my wife we still owed him money, when my wife asked him how much, his reply was “a lot.” Ex-Landlord then demanded my wife give him our address & phone number so we could “work this out.” My wife felt threatened and gave him false information so he would go away and she could collect our kids.
We then received notice that we were being sued May 25, 2000 for $1492.63 for “back rent, damages, and late fees.
On May 26th, I sent our ex-landlord a certified letter stating that we did not agree with the amount he claimed we owed, and asked him to sent us a copy of any documentation he felt justified the amount he was suing us for.
On June 3, 2000 I received a letter from the ex-landlord accusing us of avoiding him and offering to take a reduced amount if we paid it in full by June 10, 2000. Enclosed was an itemized expense report listing unjustified claims of damages in excess of normal wear and tear. The expense report was not dated, but contained a paragraph at the end that seemed to be prepared prior to August 15, 1999 threatening to file suit in small claims court on August 16, 1999.
No suit was filed until May 23, 2000, Over 9 months later.
Do I still owe my ex landlord any money since he took 11 months to bother telling me he wants money?

 

[HomeGuru]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by jdexl1:
I'm being sued in small claims court in Oregon and I'm looking for some advise or comments from anyone whose been in a simular situation.
Here's the story so far,
My wife & I rented a house in Oregon on a one year lease for $575 a month.
After the lease expired, we continued to live in the house for over 1½ years on a month-to –month agreement as was implied in our original lease.
On or about May 25, 1999, I personally hand delivered written notice to landlord that we were moving out by July 1, 1999 and asked verbally and in writing if deposits could be used to cover last month’s rent.
The Landlord agreed verbally.
We were completely moved out by June 30 1999
We did left the house messy, but undamaged (i.e. Left carpets on hardwood floors, left a working microwave in kitchen, dirt on floors, dusty, etc)
We went by our landlord’s home on June 30, 1999. No one was home so we put the rental keys in their mailbox.
Had our mail forwarded to new address, but never heard from ex-landlord.
Ex-landlord kept all deposits and never sent notice of why. We assumed that we were even.

11 months later,
Our ex-landlord showed up at my children’s elementary school on or about May 18, 2000 and told my wife we still owed him money, when my wife asked him how much, his reply was “a lot.” Ex-Landlord then demanded my wife give him our address & phone number so we could “work this out.” My wife felt threatened and gave him false information so he would go away and she could collect our kids.
We then received notice that we were being sued May 25, 2000 for $1492.63 for “back rent, damages, and late fees.
On May 26th, I sent our ex-landlord a certified letter stating that we did not agree with the amount he claimed we owed, and asked him to sent us a copy of any documentation he felt justified the amount he was suing us for.
On June 3, 2000 I received a letter from the ex-landlord accusing us of avoiding him and offering to take a reduced amount if we paid it in full by June 10, 2000. Enclosed was an itemized expense report listing unjustified claims of damages in excess of normal wear and tear. The expense report was not dated, but contained a paragraph at the end that seemed to be prepared prior to August 15, 1999 threatening to file suit in small claims court on August 16, 1999.
No suit was filed until May 23, 2000, Over 9 months later.
Do I still owe my ex landlord any money since he took 11 months to bother telling me he wants money?<HR></BLOCKQUOTE>

Probably not. According to the Oregon landlord-tenant code, the landlord was required to give you proper notice within a specified time period as to the disposition of your security deposit. Especially if he planned to charge you for cleaning and repair costs. If he sent a letter to your last known mailing address and it came back as undelivered, that would suffice. If he sent no notice at all, then he failed to follow the law and he is not entitled to keep any of the deposit even if he has valid claims. He can still sue you for other things like rent but not on the security deposit issue.

 

[jdexl1]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by HomeGuru:
Probably not. According to the Oregon landlord-tenant code, the landlord was required to give you proper notice within a specified time period as to the disposition of your security deposit. Especially if he planned to charge you for cleaning and repair costs. If he sent a letter to your last known mailing address and it came back as undelivered, that would suffice. If he sent no notice at all, then he failed to follow the law and he is not entitled to keep any of the deposit even if he has valid claims. He can still sue you for other things like rent but not on the security deposit issue. <HR></BLOCKQUOTE>

Thank you for your reply. For the sake of arguement, what if he did send a letter and it was returned as undelivered? It still took him 9 months to file suit and he has never attempted to settle out of court. Does he still have a chance of winning?

 

[HomeGuru]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by jdexl1:
Thank you for your reply. For the sake of arguement, what if he did send a letter and it was returned as undelivered? It still took him 9 months to file suit and he has never attempted to settle out of court. Does he still have a chance of winning?

<HR></BLOCKQUOTE>

Yes. If you bagged out and split on your landlord without leaving your forwarding address, he does not have your current address to properly notify you. Your fault due to no communication and trying to hide. Consequently, the Oregon courts (at least in Deschutes County) have allowed a certified letter to be send out to the tenants' last known address which is the subject property address. If the contents of that letter stated that the landlord will keep your security deposit and use it for cleaning, repair etc. and there will still be an outstanding balance assessed to you for back rent payments etc., most likely you have lost the case in principal. You should negotiate the costs/expenses to a more equitable and real amount.

There is no State law or legal requirement that requires the landlord to settle out of court. The 9 month period is within the statute of limitations period, so the landlord is not barred from going after you.

 

[Tracey]

The OR residential landlord tenant act is in chapter 90. You can read it at the library.

1. Back rent: A T delivers posession to L when T returns the keys or after T's notice of termination expires. [90.147] You delivered possession as of 6/30/99 & cannot be charged rent beyond that date. Also, T can terminate a month to month tenancy on 30 days written notice. [90.427] Your notice was proper & terminated the tenancy no later than 7/1/99. You can't be charged ANY rent beyond that date. Be ready to prove this if your can. A copy of the notice you sent would be good. Certified mail would have been better. Also, you may be able to get L to admit you handed him notice in May 99. If L is arguing that the lease automatically renewed for a year when you held over, you should argue that such a provision is "unconscionable (grossly unfair) & unenforceable." Cite 90.100(29): "A rental agreement shall be either a week-to-week tenancy, month-to-month tenancy or fixed term tenancy." Note that year-to-year is not listed!

2. Security deposits are covered in 90.300. Failure to provide an accounting of deductions within 31 days of termination entitles T to twice the amount improperly withheld, although L can still sue for damages. Essentially, T gets a setoff against the judgment of twice the deposit paid, rather than just the dep paid. In this case, L had to have mailed the accounting by 8/1/99. There is no requirement in the statute that T give L a forwarding address in order to exercise the remedies of 90.300. Since you had a forwarding address on file with the post office and were receiving other forwarded mail beyond 8/2/99, the presumption will be that L did not send the acounting in time. L will have to produce a postmarked envelope to prove he sent the accounting on time.

This is not as helpful as it seems, since you & L agreed that L could keep all of the deposits. You waived any claim that L was supposed to refund money; therefore L did not improperly withhold the deposit. You'd have been much better off to pay the June 99 rent & leave the deposit with L, hoping L would miss the 31 day deadline. Since the agreement to apply the deposit to the rent is bad for you, don't mention it. (L didn't agree inwriting, after all.) You're far better off if the judge thinks you skipped out on rent and L failed to send the accounting on time. You'll at least get a credit against back rent equal to twice your security deposit! Let L raise this defense. Admit it if he does, but don't make his case for him.

3. Maybe L won't think up this defense, or maybe the court will hold that L had to comply with the statute even though you'd agreed to let him keep the deposit to cover rent. File an answer denying that you owe L anything & counterclaiming for double your security deposit. [90.370] You will have to prove that L had or should have had notice of the facts that prove your counterclaim. (In this case, that L should have known about the security deposit laws & was capable of reading a calendar and counting to 31. No worries.) You should also try to find a case where the court says L has to send an accounting even if T has asked that the deposits be applied to rent. The courthouse law librarian can help you. If you find such a case, take copies of it to court with you, should L raise the 'apply the deposit to rent' defense.

4. Your wife ducking service is irrelevant. The judge may yell at her, but you can simply point to the service laws & say that L had no trouble finding you to properly serve the summons, so L wasn't prejudiced. ("Not prejudiced" is a legal term meaning 'no harm, no foul.')

5. L can wait 11 months to sue you.

6. You will owe L something. The two of you agreed that your deposits could be used to cover the last month's rent. Fortunately you had this in writing in your termination offer. This will bolster your claim that L agreed verbally to let you do that. Even better evidence of agreement would be for you to produce the June 99 check for $70, the difference between the deopsits you'd paid and the $575 + 1 day's rent. However, since you agreed to apply the deposits to the rent, L had no money left over to cover damages. Any legitimate damages L proves at trial will have to be paid by you. your goal is to get the court to agree that L still had to send that accounting & thus owes you an amount equal to the deposit, which is more than you owe L for cleaning.


WHAT TO DO: File the answer & counterclaim as described in 3. Take all your proofs with you to court. Every scrap of paper, every witness, etc. As far as a judge is concerned, the parties' oral testimony is the least persuasive evidence there is. Even a scrap of paper backing up your claims is worth gold. Take copies of all the laws I cited & be ready to hand them (with the pertinant parts highlighed neatly) to the judge & L. Sometimes small claims judges like to reach a "fair" result rather than follow the law. If you hand up the law and have the copies admitted as evidence, the judge has a much harder time doing that. (Mark them Defendant's Exhibit 1,2,3,..., give copies to judge & L, and "Move that Def's Ex. 1-12 be admitted.") Take a calculator to figure out how much you really owe (or L owes you). Go over L's accounting with a fine-toothed comb and challenge EVERY penny that is unreasonable. (Ask L for a copy as part of 'settlement negotiations', or serve L with a discovery demand that he provide you with a copy of the accounting prior to trial, if small claims court allows that. Ask the clerk.) Don't let L charge you for shampooing carpets or painting (normal wear & tear), nor should you let L charge 'retail' cleaner prices if L does the work himself. L doesn't have overhead, payroll deductions, IRS taxes, etc. Knock off 40% for those expenses if L provides professional estimates but did the work himself & argue the discount to the court. If he hired out the job, make him provide receipts.

After checking case law & going over the accounting, make L an offer. If you settle, you save court costs & attorney fees. if you can't settle, take your checkbook to court.

90.300
***
(8) Any portion of a last month's rent deposit not applied as provided under subsection (7) of this section shall be accounted for and refunded as provided under subsections (10) to (12) of this section. Unless the tenant and landlord agree otherwise, a last month's rent deposit shall not be applied to rent due for any period other than the last month of the tenancy. A last month's rent deposit shall not operate to limit the amount of rent charged unless a written rental agreement provides otherwise.

(9) Upon termination of the tenancy, a landlord shall account for and refund to the tenant the unused balance of any prepaid rent not previously refunded to the tenant as required by ORS 90.380 and 105.120 (4)(b) or any other provision of this chapter, in the same manner as required for security deposits by this section. The landlord may claim from the remaining prepaid rent only the amount reasonably necessary to pay the tenant's unpaid rent.

(10) In order to claim all or part of any prepaid rent or security deposit, within 31 days after the termination of the tenancy and delivery of possession the landlord shall give to the tenant a written accounting that states specifically the basis or bases of the claim. The landlord shall give a separate accounting for security deposits and for prepaid rent.

(11) The security deposit or prepaid rent or portion thereof not claimed in the manner provided by subsections (9) and (10) of this section shall be returned to the tenant not later than 31 days after the termination of the tenancy and delivery of possession to the landlord.

(12) The landlord shall give the written accounting as required by subsection (10) of this section or shall return the security deposit or prepaid rent as required by subsection (11) of this section by personal delivery or by first class mail. Proof of timely compliance with this requirement shall incl

 

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