We voided our lease... why doesn't he understand?

[nearlynormal]

We rented a house which was supposed to become available on April 1 of this year. The landlord had to be out of town on the day we moved in, but said he would leave the key in the mailbox. We came by at noon on April 1 and found the property was not cleaned, and that personal belongings (including a bed frame and washer/dryer) of the previous owner were still on the premises. In our contract, the lease is allowed to be voided by either party if the previous tenant fails to vacate when possession is to occur. The contract states that the agreement can be terminated in writing with neither party being held liable except for any deposits paid to owner will be refunded to tenant. We wrote a letter stating our reasons for terminating and included a copy of the lease with the section highlighted. Now our landlord is saying we can't get out of it and told us we are being charged an additional $10 a day until we pay. Can he do this? What can we do?

 

[Tracey]

Tell landlord to f*ck off. Today. Your lease specifically addressed the issue of what remedies were available to you if he failed to deliver the premises at the specified time. You have a right to enforce those remedies. (Please tell me you kept a copy of your letter voiding the lease!)

His only argument that you can't break the lease is that you had the keys and no one else was living there. The issue is whether the previous tenant had "vacated" given that his/her stuff was still there. The lease may address this by requiring the landlord to deliver a clean, empty apt. If not, you have to argue it in front of a judge. Focus on the amount of stuff left over and whether the stuff made you think the previous tenant was still living there. (lots & yes) The judge may decide this was a minimal breach entitling you to damages, but not to void the lease.

Call the local landlord/tenant assn for info on the residential landlord-tenant act and how to proceed.

Demand an immediate refund of your deposit. If he fails to pay it, sue him for the tenant version of unlawful detainer. Check the RLTA for specifics. Also, you may be entitled to double your deposit back, if state law requires him to refund your money within a certian time after the lease ends. You will probably be entitled to attorney fees and costs if you have to sue him and win.

If landlord doesn't back down today, get this case into court immediately and pay the April rent to the court to hold in escrow. That will stop any late fees until the judge decides the case.

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.

[This message has been edited by Tracey (edited April 05, 2000).]

 

[nearlynormal]

My fiancee and I consulted with student legal services yesterday and she is drafting a letter to our former landlord. Yes, we had kept copies of everything, and copies of those were given to the attorney. He is claiming that we had told the previous owners that they could have a few extra days. Even if that were true (it's not), in the state of Illinois we have a little thing called the Statute of Fraud which says that the only valid contract is a written piece of paper between the tenant and the owner. No verbal contracts are legal or binding. There were alot of things in the apartment when we entered. They also had not yet turned off their utilities. When we told the landlord this, he said that we were lying and that they WERE moved out before the 1st. Then he turned around and issued the previous tenants a letter stating that they would not get their deposits back because they failed to vacate by the 1st. Hmmmm... This guy must not be too bright to leave a papertrail like this in his wake.
Thanks for your input, Tracey!

 

[Tracey]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by nearlynormal:
Even if that were true (it's not), in the state of Illinois we have a little thing called the Statute of Fraud which says that the only valid contract is a written piece of paper between the tenant and the owner. No verbal contracts are legal or binding.<HR></BLOCKQUOTE>


It's great that you know the Statute of Frauds exists. Are you in law school? You get to the right result, but are relying on the wrong law.

The SoF as enacted in IL (810 ILCS 5/2A-201) states that a lease must be in writing if the total amount of all payments will exceed $1,000. Thus, and oral month-to-month lease with rent &lt;$1,000 IS enforceable. (So are oral contracts if they can be performed within 1 year or are for less than $500.)

I think you were really referencing either the parol evidence rule or the oral modification statute. 810 ILCS 5/2A-202 states that, where a contract says it contains the entire agreement (a "merger" clause), the contract cannot be modified except by a writing signed by both parties. 810 ILCS 5/2A-208 states that a written lease can be modified orally unless the lease forbids oral modifications.

The parol evidence rule applies to statements made contemporaneously with signing the lease. The modification rule applies thereafter. Ain't contracts fun?


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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.


[This message has been edited by Tracey (edited April 05, 2000).]