Tenants backed out of Move In, want Money

[justalayman]

section 1162 of the code of civil procedure

(a) Except as provided in subdivision (b), the notices
required by Sections 1161 and 1161a may be served by any of the
following methods:
(1) By delivering a copy to the tenant personally.
(2) If he or she is absent from his or her place of residence, and
from his or her usual place of business, by leaving a copy with some
person of suitable age and discretion at either place, and sending a
copy through the mail addressed to the tenant at his or her place of
residence.
(3) If such place of residence and business cannot be ascertained,
or a person of suitable age or discretion there can not be found,
then by affixing a copy in a conspicuous place on the property, and
also delivering a copy to a person there residing, if such person can
be found; and also sending a copy through the mail addressed to the
tenant at the place where the property is situated. Service upon a
subtenant may be made in the same manner.
(b) The notices required by Section 1161 may be served upon a
commercial tenant by any of the following methods:
(1) By delivering a copy to the tenant personally.
(2) If he or she is absent from the commercial rental property, by
leaving a copy with some person of suitable age and discretion at
the property, and sending a copy through the mail addressed to the
tenant at the address where the property is situated.
(3) If, at the time of attempted service, a person of suitable age
or discretion is not found at the rental property through the
exercise of reasonable diligence, then by affixing a copy in a
conspicuous place on the property, and also sending a copy through
the mail addressed to the tenant at the address where the property is
situated. Service upon a subtenant may be made in the same manner.
(c) For purposes of subdivision (b), "commercial tenant" means a
person or entity that hires any real property in this state that is
not a dwelling unit, as defined in subdivision (c) of Section 1940 of
the Civil Code, or a mobilehome, as defined in Section 798.3 of the
Civil Code.

 

[gryndor]

Chat with their Lawyer

I just got off the phone with the lawyer. He said to me that my would-be tenants declared on November 15th that I broke our rental agreement under the section of Clean and Sanitary Conditions. They have no evidence, only testimony. I however, have photos of the conditions that they objected to so much, showing a perfectly clean, sanitary and functional home. He also admitted that he was confused as to why they gave me no time to "fix" what they perceived to be wrong.

Lawyer said that my particular problem is that in the rental agreement, I list $1000 as a "security deposit" never stipulating that in the event that the tenants never move in that it turns into a holding deposit and is then nonrefundable. He said that a judge would spend 5 minutes on them, 5 minutes on me, and then refer to the rental agreement which doesn't say anything about the "holding deposit" and what would happen afterward.

He told me my best bet would be to send back the money because whatever a judge awarded the would-be tenants would be subject to three-times damages in addition to the joy of flying out there, taking time off work etc.

He also mentioned that there was case law that said if email was the primary mode of communication between tenant and LL that an emailed 30-day notice was sufficient.

Then lawyer added that he didn't really understand the position of his clients... that they retained him for $500, that he was $275/hour, and that this should really be a business decision, about the money, and not this emotional fight standing-on-the-principal-of-the-matter stand that his client seems to have taken. He said he was truly befuddled but that if it came to court, he would not be involved in the actual small claims appearance (since he can't) but that he would be filing an appeal should it not go their way.

My Questions:

Does my rental agreement negate my Holding Deposit stance?

If not, am I better off sending an accounting of that deposit saying something like, Holding Deposit, would-be tenants never took possession?