Author Topic: Seeking landlord perspectives - wear & tear vs. damage, sec dep return  (Read 25215 times)

Ftao93

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #50 on: February 20, 2015, 10:13:45 AM »
I'm no expert, but replacement plants?  gardening?  Battery replacement?  WTF?

He should already be able to write off some consumables and such on his taxes, why bill you for it too?  sounds like a putz.

Freedom2016

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #51 on: February 20, 2015, 10:29:58 AM »
Thanks for the recommendation. From my earlier research on CA law and "wear and tear" it is somewhat vague although the delineation SEEMS to be if a tenant actively damaged something, i.e. burn hole in carpet from cigarette = damage that tenant pays for; worn carpet in front of couch from normal use = normal wear and tear. On this matter I found this: http://homeguides.sfgate.com/normal-wear-tear-rental-home-1914.html but it's not exactly legal language.

So in my letter do I do a line by line rebuttal of each of these dumb charges? Or do I send a blanket letter saying these are inappropriate as they fall under normal wear and tear, and you have one chance to send us the balance due or we are suing you for this plus damages?




« Last Edit: February 20, 2015, 10:34:18 AM by course11 »

ShoulderThingThatGoesUp

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #52 on: February 20, 2015, 10:30:58 AM »
They're irrelevant because he missed the deadline, right? So ignore them.

arebelspy

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #53 on: February 20, 2015, 10:41:59 AM »
I'd do both - line by line of why they're not applicable, plus mention it's irrelevant due to his failure to provide the deposit within 21 days and by California law it's all due.

Was your lease not up until 1/31 though?  So that may have been when the clock starts ticking on that, double check that one.
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Freedom2016

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #54 on: February 20, 2015, 10:53:52 AM »
I'd do both - line by line of why they're not applicable, plus mention it's irrelevant due to his failure to provide the deposit within 21 days and by California law it's all due.

Was your lease not up until 1/31 though?  So that may have been when the clock starts ticking on that, double check that one.

Good to check on the 21-day thing. We paid the lease through 1/31 but gave him the keys at the walk through on 1/14. I believe the clock started on 1/14 based on the following:

Here's what the Civil Code says: "No later than 21 calendar days after the tenant has vacated the premises..."
http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1950.5.

Here's what avvo.com says: "The tenant should surrender the keys to the landlord after moving out, as this is a legally significant act clarifying that surrender has occurred at that time...Within 21 days from surrender of possession, the landlord must send...a written detailed itemization..."   
http://www.avvo.com/legal-guides/ugc/how-to-properly-terminate-a-residential-tenancy-in-california

He also failed to notify us that we could have requested an initial inspection and either discussed these issues or fixed them ourselves in advance. Civil code 1950.5 (f) reads:

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(f) (1) Within a reasonable time after notification of either party’s intention to terminate the tenancy, or before the end of the lease term, the landlord shall notify the tenant in writing of his or her option to request an initial inspection and of his or her right to be present at the inspection. The requirements of this subdivision do not apply when the tenancy is terminated pursuant to subdivision (2), (3), or (4) of Section 1161 of the Code of Civil Procedure. At a reasonable time, but no earlier than two weeks before the termination or the end of lease date, the landlord, or an agent of the landlord, shall, upon the request of the tenant, make an initial inspection of the premises prior to any final inspection the landlord makes after the tenant has vacated the premises. The purpose of the initial inspection shall be to allow the tenant an opportunity to remedy identified deficiencies, in a manner consistent with the rights and obligations of the parties under the rental agreement, in order to avoid deductions from the security.

arebelspy

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #55 on: February 20, 2015, 11:19:55 AM »
You're good then.

I'd do the line by line on why it's unreasonable and then add that info about the 21 days and how you surrendered possession and the whole amount is due, and ask for $(remaining balance) to be remitted within five business days.
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Freedom2016

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #56 on: February 20, 2015, 02:07:55 PM »
Okay - I've drafted a letter - open to any suggested edits:

Quote
Dear LL,

We are in receipt of your letter dated February 11, 2015 detailing twelve items for which you deducted $1013.06 from our $2700.00 security deposit. We write today to dispute these items as inappropriate deductions and to make a second demand for a return of our full security deposit.

As we noted in our first demand letter sent on 2/10/2015, you violated California Civil Code Section 1950.5(g)(1) by not returning the full or partial security deposit within 21 days of our vacating the property. We vacated [address] and surrendered the keys to you on 1/14/2015, not 1/31/2015 as erroneously stated in your 2/11/2015 letter.

Your legal duty, having violated California state law regarding the timing of handling the security deposit, is to return the full security deposit to us, full stop. Should you believe we are responsible for certain repairs or cleaning, you are free to then seek compensation from us via the courts.

Having said that, we remind you that California Civil Code Section 1950.5 (b) provides that you may only retain a security deposit to pay for damages and cleaning beyond normal wear and tear. When we released our tenancy of the house on 1/14/2015, it was left clean and, per Section 8 of the lease, “in as good condition as received, normal wear and tear excepted.” See the Appendix for discussion of why we believe the charges are not appropriate and would not likely hold up in court.

We are further notifying you of your lack of compliance with additional California statutes, which could have remedied this situation. Because we were not given the opportunity to conduct an initial inspection of the premises under California Civil Code Section 1950.5(f)(1) which states, “Within a reasonable time after notification of either party’s intention to terminate the tenancy, or before the end of the lease term, the landlord shall notify the tenant in writing of his or her option to request an initial inspection and of his or her right to be present at the inspection,” we were unable to exercise our rights under California Civil Code Section 1950.5(f)(2) and (3) which state:

2.   Based on the inspection, the landlord shall give the tenant an itemized statement specifying repairs or cleaning that are proposed to be the basis of any deductions from the security the landlord intends to make pursuant to paragraphs (1) to (4), inclusive of subdivision (b). This statement shall also include the texts of paragraphs (1) to (4), inclusive, and of subdivision (b). The statement shall be given to the tenant, if the tenant is present for the inspection, or shall be left inside the premises.
3.   The tenant shall have the opportunity during the period following the initial inspection until termination of the tenancy to remedy identified deficiencies, in a manner consistent with the rights and obligations of the parties under the rental agreement, in order to avoid deductions from the security.

Please send a certified check for $1013.06 to us within 5 business days of receipt of this letter.

This will be your only chance to settle this matter before we file suit against you in Small Claims Court. If you decide to ignore this demand for payment, we will pursue all legal remedies available without further notice to you. This letter serves as evidence that we have attempted to resolve this matter informally. The prompt return of the inappropriately withheld $1013.06 will make court action unnecessary.

Sincerely,

In the appendix I dispute each charge line by line. Here is how I dispute the $410 resanding charge:

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Engineered wood floors have a useful life of 50-80 years and should not need refinishing more than once every 10-20 years. When we moved in you stated that your engineered wood floor, only 17 years old at the time, had recently undergone its last possible refinish, thus implying that it had already been refinished multiple times in its short life. This fact, on its own, indicates a problem with the floor and/or your prior care of it. Indeed, the plywood subflooring was visible in at least one place in the family room. It is our contention that the remaining razor thin veneer surface of the wood floor could not hold up to normal daily use by a family of three. We assert that the wood floor in your home is defective and at the end of its useful life, and that we are therefore not responsible for its resurfacing.

LL is a lawyer and for sure will nitpick the language here. In case we wind up in court this letter will become evidence. So...any suggestions for making this paragraph as nitpick-proof as possible? For example I'm estimating the useful life and frequency of refinishing; perhaps those numbers will get me in trouble?
« Last Edit: February 20, 2015, 02:21:26 PM by course11 »

arebelspy

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #57 on: February 20, 2015, 02:29:50 PM »
After the second paragraph I'd add in the info you put upthread about what constitutes vacating the premises per CA law.

And I personally wouldn't threaten the lawsuit yet, just let him know he's in violation of the law.
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Freedom2016

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #58 on: February 20, 2015, 02:55:12 PM »
ARS, I really have appreciated your input on this given your extensive LL experience. Thank you!

I am curious why would you leave out the lawsuit bit at this stage? Our first demand letter, on 2/10, ended with this: "Please consider this our formal demand letter, and send the entire amount of $2700...within 5 business days (Feb 17) or we will be forced to pursue both this amount, and damages, through the courts. We hope it doesn't come to that."

He already didn't comply with that demand letter. What would be the advantage of not mentioning a lawsuit in this second letter?

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #59 on: February 20, 2015, 02:58:27 PM »
Sorry to hear about your troubles.  I hope you find recourse.  I lived in 3 different rentals in college, every one of which dinged me for "creative" items despite leaving the properties in better condition than I got them in (wasn't hard) but never to the degree you experienced.  I had made up my mind to withhold my last months rent (1 month rent deposit was customary) if I ever rented again and just tell them to keep the deposit.  Not sure what would have happened, but thankfully, I never had to find out.

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #60 on: February 20, 2015, 03:00:51 PM »
I'm glad you're fighting this crook. I caved 10+ years ago when my jerk landlord was accusing me of all kind of damage to the property. I was newly married and couldn't deal with the stress. Good on you to pursue this. I would hate for him to think he can pull these shenanigans in the future. Turns out my former landlord was a pro and had been cheating cowering tenants for years.

arebelspy

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #61 on: February 20, 2015, 03:20:46 PM »
What would be the advantage of not mentioning a lawsuit in this second letter?

Because as soon as you escalate it to that, you've delivered an ultimatum on that he can call your bluff by stalling and seeing if you actually do.

It's always better to try and work it out first, even with someone shady like this.
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Freedom2016

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #62 on: February 20, 2015, 03:44:48 PM »
As a matter of principle I see your point. I'm not sure it will make much difference to this guy, but I could modify like this:

"Therefore, please send a certified check for $1013.06 to us at the address above within 5 business days of receipt of this letter. Thank you in advance for following through on your legal duties as a landlord."

I suppose I need to tone down the language in the Appendix where I say things like "it is illegal for you to withhold for this"

Goldielocks

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #63 on: February 20, 2015, 08:19:12 PM »
I'd do both - line by line of why they're not applicable, plus mention it's irrelevant due to his failure to provide the deposit within 21 days and by California law it's all due.

Was your lease not up until 1/31 though?  So that may have been when the clock starts ticking on that, double check that one.

Yeah, but 2 weeks of vacancy can easily explain the weeding, at least!  Tenants should not be responsible for weeds that grow after they move out.   
I also think that only $18.75 for yard work proves by itself that the place (yard at least) was left tremendously well maintained.

IMO, some of these tiny details / amounts actually support the OP's case that they took great care of the property.   As in -- the LL would have itemized much larger items if he could find any, and usually there is some "typical" wear and tear.

Freedom2016

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #64 on: March 02, 2015, 12:02:17 AM »
So....LL has not retrieved the certified/return receipt demand letter we sent. USPS tried to deliver it on 2/23, they weren't home, they were left a notice. He hasn't picked it up.

What now?

Lawyer friend suggested sending it regular mail because it would then definitely get delivered... but we wouldn't have proof of receipt.

Freedom2016

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #65 on: March 26, 2015, 10:29:59 AM »
Update: the demand letter was delivered on March 3, and, surprise surprise, LL has not sent us a check. So it looks like we will be suing to get our $1013 back.

Two questions for this group:

(1) Can we cash the check he DID send without it negatively affecting our case? I feel like I read somewhere that cashing a check was akin to agreeing/accepting the amount sent.

(2) Should we sue for (treble) damages (treble = $3039), or just the amount we are owed from our security deposit? How can/should we account for the travel expenses we will incur to go fight this in California?

What a pain!

arebelspy

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #66 on: March 26, 2015, 10:35:10 AM »
Have you tried to contact the landlord again?  Or are you just sitting waiting?  Communication is always key.

You need to contact a California tenant advocacy group.

(1st example on Google: http://www.caltenantlaw.com/ -- ignore the "Oh God, Geocities 1977" website design. This info may be good: http://www.caltenantlaw.com/Deposit.htm But Google around too.)

They can give you more specific advice/guide/help you.

I would not cash the current check, and I would sue for triple.
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Freedom2016

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #67 on: March 26, 2015, 10:44:28 AM »
Have you tried to contact the landlord again?  Or are you just sitting waiting?  Communication is always key.

No, we haven't. What would we be saying at this point? "Listen, it seems clear you have ignored our demand letter, which has been in your possession for over 3 weeks. Is it your intention to keep the $1013? If so, we will be suing you to get it back, plus damages."

Quote
You need to contact a California tenant advocacy group.

I tried to contact 2 different tenant advocacy groups while we still lived in CA and both said they did not cover our geographic area (strange since the website for one of them specifically said it DID cover our area). I'll google around to see what else I can find...

arebelspy

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #68 on: March 26, 2015, 10:48:05 AM »
Have you tried to contact the landlord again?  Or are you just sitting waiting?  Communication is always key.

No, we haven't. What would we be saying at this point? "Listen, it seems clear you have ignored our demand letter, which has been in your possession for over 3 weeks. Is it your intention to keep the $1013? If so, we will be suing you to get it back, plus damages."

Yes.  Confirm they got it, ask what his response is, etc.
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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #69 on: March 26, 2015, 11:02:12 AM »
Update: the demand letter was delivered on March 3, and, surprise surprise, LL has not sent us a check. So it looks like we will be suing to get our $1013 back.

Two questions for this group:

(1) Can we cash the check he DID send without it negatively affecting our case? I feel like I read somewhere that cashing a check was akin to agreeing/accepting the amount sent.

(2) Should we sue for (treble) damages (treble = $3039), or just the amount we are owed from our security deposit? How can/should we account for the travel expenses we will incur to go fight this in California?

What a pain!

Correct, do not cash the check.  If you're going to go to court, I'd file for treble at that point if you are legally entitled to do so.

I doubt you can recover travel costs.  Hope that filing suit is sufficient to induce a better settlement offer.

Freedom2016

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #70 on: March 26, 2015, 11:10:36 AM »
Ok - so if we don't cash the check, and we contact him but he doesn't agree to send anything back, how do I calculate the total amount we are suing for?

$2700 = full security deposit amount

+ $150 = payment for patio furniture he bought from us and folded into the sec dep check (Stupid me. I asked for a separate check and he waved it off saying he'd include it in the sec dep check. I didn't want to make a stink so I didn't insist.)

Treble damages - is this (3 x $2700)? or (3 x $1013)? Or some other calculation?

arebelspy

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #71 on: March 26, 2015, 11:16:40 AM »
3x2700 + 150 for the outstanding patio furniture debt.
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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #72 on: March 26, 2015, 01:02:37 PM »
What would you guys do at this point? Keep in mind that we would have to fly across the country to sue him.

I would sue him. I think he's banking on you not wanting to spend the money to fly back to California to sue him.

And while you can't force him to pay up, he's a lawyer, so he probably doesn't want any unpaid judgment to start showing up on his credit report or in background checks.

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #73 on: March 26, 2015, 03:44:39 PM »
Wow... I've kind of avoided this thread because  based on the title I thought it would be kind of mundane.  And here I am reading through the whole thing and sitting on the edge of my seat to see what's going to happen next.

Freedom2016

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #74 on: April 03, 2015, 09:43:54 PM »
Ha ha, Poorman...hopefully it will end well!

I emailed LL early Tuesday morning and....nada. Zilch. No response whatsoever. I suppose we can wait one more week in case he's out of town and not checking email, but this frankly seems par for the course with him.

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #75 on: April 03, 2015, 10:15:29 PM »
Ha ha, Poorman...hopefully it will end well!

I emailed LL early Tuesday morning and....nada. Zilch. No response whatsoever. I suppose we can wait one more week in case he's out of town and not checking email, but this frankly seems par for the course with him.

Start looking into filing.  May be worth just paying a lawyer to do it.
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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #76 on: April 04, 2015, 08:08:30 AM »
Interesting thread. I have a question about check cashing. I was taught to cash cheques for partial payments. It does not signal acknowledgement of "paid in full." The reason for cashing is most tenants need the deposit back for their next place. A common tactic of landlords used to be holding back from poor people who had to give in just to get by.

I also have an agency devoted to landlord/tenant disputes in my city. It keeps it out of the courts, all free. Legally all damage deposits are held by them, not the landlord. They're even required to pay interest on the deposit, very few people bother  (usually the landlord skims the interest off).

Is cashing in the US a signal the deal is settled?

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #77 on: April 04, 2015, 09:13:54 AM »
Is cashing in the US a signal the deal is settled?

Not necessarily, but it can have an effect.

For example, as a landlord if you accept partial payment from a tenant, you cannot continue to evict, unless you have a written agreement that way, accepting a partial payment can often halt the eviction process.

Typically I wouldn't cash a check over an amount in dispute.

Also, as a landlord, if I ever return less than a full security deposit, I write in the memo field "payment in full for security deposit for (address)."  He probably didn't do that, but it's a smart thing to do, IMO.  It also may not hold up (everything is always up to the judge), but it's better to have it than not and nip anything in the bud, if possible.
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Secretly Saving

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #78 on: April 04, 2015, 09:36:53 AM »
Wow.  Hoping this gets worked out soon for you, Course11. 

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #79 on: April 04, 2015, 10:01:14 AM »
Wow, I can't believe how ridiculous your LL is being. 

We also rented from people who weren't real LLs and they were clearly not familiar with the law.  They didn't return our security deposit within 30 days (which was first/last/security deposit, so quite large) as required by PA state law, so we actually could have sued them for double.  They also didn't return our last month's rent after the first year, nor did they pay us interest.  I sent them the applicable excerpts of the law via email, and got some attitude back, but they sent me my full check. 

I would absolutely sue for treble damages in your case.  I would have sued in my case if they hadn't complied.  I've found that lawyers aren't expensive as I always think they will be, and in this case the principle would make it well worth it to me.  Good luck, and keep us posted!

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #80 on: April 06, 2015, 11:45:12 AM »
This is giving me flashbacks to one of the apartment buildings I lived in Chicago. The apartment building was old and had a cockaroach epidemic. The electricity was turned off when we got the apartment and the entire inside of the refrigerator was covered in black mold. About 6 months or so before our lease would be renewed she sweetly asked if we would be renewing because we were such good tenants. We let her know a month or so before our lease was up that we would not be renewing, and personality turned. She would call us saying that she was going to be at the apartment in 10 minutes to show the apartment (when we still lived there) and we needed to get out, and then later she would go on a verbal tirade that the apartment was dirty, messy, etc. We explained that a landlord is supposed to give 24 hour notice, but that fell on deaf ears. We had heard from others that she was "prone" to keeping the deposit, so we cleaned the place better than when we got it (our Dad who is super neat freak helped us). Sure enough 30 days went by, no deposit. We called her a few times, and a couple weeks later received an itemized bill of all the things that were wrong, including multiple late fees for rent that were fabricated, that exactly equalled our deposit. Our Dad had his lawyer call her, but she cussed him out, said sue me, used obscenities, hung up. The lawyer said, we could sue but this lady is crazy, is it worth the money? So we walked away. 
« Last Edit: April 06, 2015, 11:54:31 AM by partgypsy »

Cathy

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #81 on: April 12, 2015, 05:23:24 PM »
Update: the demand letter was delivered on March 3, and, surprise surprise, LL has not sent us a check. So it looks like we will be suing to get our $1013 back.

Two questions for this group:

(1) Can we cash the check he DID send without it negatively affecting our case? I feel like I read somewhere that cashing a check was akin to agreeing/accepting the amount sent.

(2) Should we sue for (treble) damages (treble = $3039), or just the amount we are owed from our security deposit? How can/should we account for the travel expenses we will incur to go fight this in California?

What a pain!

Correct, do not cash the check.

In California, this topic actually presents an interesting potential application of the doctrine of "implied repeal". In modern times, when a legislature changes the statutory law, it explicitly repeals the old statute. However, historically speaking, legislatures were less reliable about explicitly repealing the old law, so there was a well-known principle in the common law that if a new law on a topic is passed, the old statute is implicitly repealed to the extent of the inconsistency, even though the legislature doesn't make the repeal explicit. This principle is also part of the law in the USA, although it rarely comes up because legislatures are pretty good about explicitly repealing old laws.

However, this check cashing topic in California is actually an example where the legislature failed to repeal an old law.

Cal. Civ. Code § 1526 provides that cashing a check marked payment in full generally does not result in settlement of the dispute if the creditor strikes out the notation on the face or the check or cashes the check without knowledge of the notation. This statute was enacted in 1987.

On the other hand, Cal. Commercial Code § 3311 provides that generally if the creditor cashes a check tendered in full payment of the claim and amount of the claim was unliquidated or subject to a bona fide dispute, then the claim is fully settled. This statute was enacted in 1992.

One statute tells you that cashing the check ends the dispute. The other one tells you it does not. This situation is indicative of pretty poor work on the part of the legislature, but the doctrine of implied repeal tells us that the passage of the 1992 statute probably implicitly repealed the 1987 one, meaning that the 1992 statute is probably the law in California.

Another interesting point is that the 1992 statute provides that the claim has to be unliquidated or subject to a bona fide dispute in order for the check to be an effective means of settling the claim. A claim for the recovery of an illegally withheld security deposit would appear to be a claim for liquidated damages, although it is not entirely clear. Although the landlord clearly disputes whether he owes the OP the security deposit, the bona fides of that dispute are up for debate. The landlord would appear to have no legally cognisable argument against returning the security deposit in full. If the claim is for a liquidated amount and there is no bona fide dispute over that amount, then cashing the check is safe even under the 1992 statute.

That said, I would certainly not recommend cashing the check, and this post should not be interpreted as advice to cash the check -- it is just discussion of some interesting arguments.
« Last Edit: April 12, 2015, 05:25:58 PM by Cathy »

arebelspy

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Re: Seeking landlord perspectives - wear & tear vs. damage, sec dep return
« Reply #82 on: April 12, 2015, 06:04:43 PM »


Thanks Cathy!  That was really interesting.  :)
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