The Money Mustache Community
Learning, Sharing, and Teaching => Real Estate and Landlording => Topic started by: Freedom2016 on January 09, 2015, 09:39:13 AM
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We are moving out of our rented house on the west coast next week and our landlord will be doing a walk-through in the next few days.
We have kept the house in very good condition and expect only one issue that would eat into our $2700 sec deposit return: the wood floor in the kitchen/family room area. Landlord refinished it before we moved in, was clearly very proud of it, and repeatedly told us that the floor was on its "last" refinish (it had already been refinished 3-4 times); it would have to be replaced next time. Keep in mind this is a 17 year old house.
Admittedly the floor does show a number of scratches at this point. LL was at the house 6 months ago and made a point of saying he considered those scratches damage to the floor. We called in 3 different floor companies to ask if they thought it was damage, all 3 said no, it looked like normal wear and tear to them - including the company that had refinished the floor most recently! But none were willing to put that in writing.
Nonetheless we expect our landlord will want to deduct $$$ from the sec deposit for the floor, and we'd like to be prepared for the conversation. We are worried that he will try to claim we have to pay to REPLACE the floor ($$$$$), whereas worst case scenario we think we should only be responsible for the cost of refinishing (~$1500 per a quote we got). Our take is that it is not our responsibility that the floor is at the end of its useful life - we didn't cause that (I'm pretty sure CA law would back us up on that point). Having said that, it sticks in our craw a little bit that we should be on the hook for anything, because we've had many wood floors and none have shown wear the way this one has, making us think it wasn't sealed properly. (We own a condo on the east coast with wood floors throughout and lived in it for 4+ years without it showing the wear that this one has shown in 15 months.) The back door also leaked after a bad rainstorm in February while we were out of town, causing real damage to the floor (the door company later admitted to a faulty installation). So we figure he has also gone after the door company for $$$ to fix the floor from their damage.
I'd like to hear the perspective of some landlords -- what advice would you give us to make the conversation with our LL as painless (and least costly) as possible? We are unlikely to litigate as we will be moving back east and it's not worth it to file a small claims suit across the country, but we would be very unhappy if he keeps the entire sec deposit for this issue.
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The floor is 17 years old, and has already been refinished 3-4 times?! Either the flooring is defective or your landlord is entirely OCD: unless you're running a dog kennel or something, that floor shouldn't have even hit it's first refinishing yet, and should last about another 80 years before actually wearing out to the point of replacement. Neither defective products/work nor somebody else's OCD should be your problem.
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Landlord is in fact OCD and we agree with you, Jack!
But...how to convince the LL of that? When we had a HUGE ant infestation last year, LL told us to deal with it, and when we suggested he talk to the exterminator to discuss whether there may be structural problems with the house that allowed so many ants in, he wouldn't do it because an exterminator "just wants to sell him a product." So I fully expect him to pooh-pooh the assessments of the floor companies we talked to.
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Submit a picture if you can.. Curious on the damage and the $1,500 quote.
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I would pre-research any tenant advocacy groups in your area for advice/guidance and look up all state statutes regarding wear & tear and security deposits.
Take a ton of pictures and document everything before you leave.
Beyond that it's hard to say other than wait to see what he comes back with. It sounds to me like there is significant wear. If he comes back with something unacceptable you may need to pay to consult an attorney.
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I tried to attach photos here, hopefully it worked. I don't feel as if we abused the floor, but this was a high traffic area for for 2 adults and a 2 year old, for 16 months. DH feels bad that yes, at times the 2 year old banged things around...but I pointed out that the toddler did the same thing in our condo and our wood floors are fine, not a scratch to show for his banging efforts.
The $1500 refinishing was a written estimate from 1 of the 3 companies we had out to the house. DH has it in his email somewhere.
I should mention that one of the guys who came out pointed out a small piece of flooring where it is clear it had been sanded down to the subfloor - in fact it's visible in the first pic, on the left side - so it does seem to be true that there's no way to just sand it again.
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Landlord just completely cheaped out on the floor. Not sure why he didn't go with sheet vinyl if that was his goal.
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I should mention that one of the guys who came out pointed out a small piece of flooring where it is clear it had been sanded down to the subfloor - in fact it's visible in the first pic, on the left side - so it does seem to be true that there's no way to just sand it again.
FYI, that's not "real" hardwood. That's "engineered" wood, which is basically plywood with the expensive, nice-looking wood only on the top layer. It wasn't sanded down to subfloor, it was just sanded down below the fancy-wood layer (which, yes, is still enough to ruin it).
The point is, that's yet another reason why you're certainly not liable to replace with a "real [solid] wood" floor!
Landlord just completely cheaped out on the floor. Not sure why he didn't go with sheet vinyl if that was his goal.
Because his goal is to blame his tenants and get him to pay to upgrade the unit for him, apparently.
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We are his first tenants - he and his wife lived there until last summer with their 2 kids, then they moved to a better school district. Which is neither here nor there re: the floor, only that he has an inordinate amount of pride in this house and seem to take it as a personal insult (and automatically our fault) when anything goes wrong.
OK - so the question remains. What's the negotiation strategy for minimizing what LL is going to try to charge us?
One of you said to wait to see what he does. Which means waiting until he returns our sec dep 21 days after we vacate the property. Which means we will be back on the east coast, so if he is a dick about it, suing him will get a lot more expensive for us.
Anything we can do to try to negotiate this down/away when he does the walk-through?
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The floor definitely has some minor scuffs and the like, but it sounds like it falls pretty soundly under wear and tear. Did the companies you talk to give a reason for why they would not give you a written statement?
If you haven't already done so, this may be useful to look through:
http://www.dca.ca.gov/publications/landlordbook/index.shtml (http://www.dca.ca.gov/publications/landlordbook/index.shtml)
http://www.dca.ca.gov/publications/landlordbook/sec-deposit.shtml (http://www.dca.ca.gov/publications/landlordbook/sec-deposit.shtml)
You can request an "initial inspection" before the final inspection to get an idea of what he wants to hold you responsible for, and you should be able to get this in writing. That might give you a better idea of any next steps.
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I'm a little torn in my reaction. If I were looking at the pictures of the floor and knew nothing else, I would say it's damage beyond wear and tear. I've lived in my house for almost 10 years and those pictures look 10 times worse than my floors.
However, I obviously don't know the quality of the flooring, or if the number of refinishings has compromised the floor's ability to resist scratches, or if it was previously refinished improperly. Any one of those things could impact
How does a floor even get that scratched up, though? A pet? Constant moving of furniture? I can't think of anything besides that that would cause that level of scratching in a short time.
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Look at your local laws but that looks like more than wear and tear to me.
The floor can't be refinished but you still shouldn't be required to replace it. I'd expect to get hit with the cost of refinishing a wood floor.
So perhaps mention that to him as a negotiation strategy. We do not refinish floors between tenants but if it was that scratched up we would need to and we would charge them for that. I would not expect a tenant to replace a wood floor because it happened to be on its last leg.
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I have wood floors in a house with dogs and cats and a lot of traffic and I am certainly not careful, and my floors don't look anything like that. You are either really really hard on floors or, what I suspect, is they weren't refinished well or were not designed to be refinished as often as they have been. I would contact a local tenants rights organization in your area to see if they have any suggestions as to how to proceed.
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I'm a little torn in my reaction. If I were looking at the pictures of the floor and knew nothing else, I would say it's damage beyond wear and tear. I've lived in my house for almost 10 years and those pictures look 10 times worse than my floors.
However, I obviously don't know the quality of the flooring, or if the number of refinishings has compromised the floor's ability to resist scratches, or if it was previously refinished improperly. Any one of those things could impact
How does a floor even get that scratched up, though? A pet? Constant moving of furniture? I can't think of anything besides that that would cause that level of scratching in a short time.
We agree it looks bad, but it's not due to pets (didn't have any) or moving of furniture (other than a high chair on plastic wheels, we didn't). It was us treading back and forth, I suppose occasionally my rolling a travel suitcase across the floor, and the toddler pulling plastic toys along the floor. In short, we had normal activities that show abnormal wear. There are also parts of the floor where it looks like the wood slats are coming apart (little half-centimeter long crack lines that run parallel with the grain).
The question is how to demonstrate/prove that we used the area "normally" to our LL or a court of law if it comes to that. I will say we were really struck early on in the lease by the wear that was already showing. Like I said, we have lived in lots of homes with wood floors and have never experienced this before.
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Also, I'll look into a tenants' rights organization, but I actually tried to contact one last winter for another LL issue and they took forever to reply, only to ultimately say they don't cover our geographic area. I haven't been able to find another resource that might help.
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After looking at the pictures I think it looks like more than normal wear & tear as well. What kind of shoes leave those scuff marks? On top of that the last picture shows what look like damage to the wood surface.
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Like I've said, we can't really explain what we did to cause the wear. Our habits are exactly the same in our own condo and there is no damage to our own floors.
At any rate, this morning we decided that fighting LL on this too much is not worth it. I can get pretty upset over matters of principle - and in fact we sued a guy a couple of years ago who had an accident while test driving my car and refused to pay for it. We won the case - yay! moral victory! - but then he declared bankruptcy so we never collected a dime.
So in this case, we'll agree to the cost of refinishing the floor ($1500) and will push back only if he tries to argue we should pay for replacing it. Even then the most he'll ever get out of us is $2700 and we've started thinking of that as the price for our peace of mind and being done with our dick landlord forever.
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Hmm,
I define damage as deep gouges from moving furniture, stilleto heels, forks pounded into the floor by your toddler, riding / eccessively sliding toys on floor with debris trapped under... Although most people experience this, like crayon on walls, these would be considered damage by me.
From your pictures, I would have expected that you were moving heavy AV equipment on cardboard boxes all the time, or had a child toy like a plastic riding car with stone stuck in the wheel. If it truly was none of that, then the finish did not keep up.
If I were you
1) I would point out that the last refinishing job was sub standard, or intended to be refreshed every few years. Ask a lot of questions, putting the blame on the LL -The coat is pretty thin... how many coats? oil or water based? Did you refrain from walking on it for the first week? etc.
2) Suggest a Screen and recoat is what is needed to restore. (not a sanding, just a buff and top up)
3) A screen and recoat may need to be normally done every 3 years, so if you have lived there for a year, then you would only pay 2/3 of the cost of this... (get a quote for buff and recoat only) e.g. $1500 x 2/3 = $1000 maximum
4) Start talking about -- "look how clean we are leaving this place", "you have had very low costs with us", "we have been a dream tenant about paying on time and bothering you rarely, this is minor compared to what you could have had,... therefore we expect the full deposit back"...
Lastly, if not biting on the above...
Find out what the depreciated value is on 17 year old pre-engineered flooring intended to last 20 years... only 15% of the life cycle value would be left (at best), which is the most that you could be expected to fund, and that is if you extensively damaged it to an unliveable condition (e.g., dog pee stains over 40% of the floor)
Then, take the % of damage -- half the floors? more" and multiply.
e.g.,
20 year life cycle (assumption) - cost of $10,000
3 yr remaining / 20 = 15%
15% x 50% damage amount = 7.5%
7.5% x $10,000 = $750
Refinishing it to rent out was akin to a landlord putting in new cheap white carpeting just before renting to tennants. I don't know what he was thinking, but good luck to you as this does not sound like a LL with any experience in realities.
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Thanks, goldilocks, that's really helpful!
Can we also use the following as leverage?
We gave LL notice that Jan 31 was our last day in the house. We have since made travel plans to leave on the 15th - so we are turning the property over 16 days early. If he is a jerk about the floor can we leverage the 1/2 month of free rent he is getting from us? Do we have any legal standing to either:
(1) Say/threaten that we have changed our minds and want use of the property until Jan 31 (since we've paid for it) so he can't rent it any earlier
(2) Ask him to refund half the month's rent since he gets to possess his property half a month early?
We'd really be looking to say, look let's call it even. We've given you half a month's head start on getting a new tenant - you can use that money for the floor.
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Thanks, goldilocks, that's really helpful!
Can we also use the following as leverage?
We gave LL notice that Jan 31 was our last day in the house. We have since made travel plans to leave on the 15th - so we are turning the property over 16 days early. If he is a jerk about the floor can we leverage the 1/2 month of free rent he is getting from us? Do we have any legal standing to either:
(1) Say/threaten that we have changed our minds and want use of the property until Jan 31 (since we've paid for it) so he can't rent it any earlier
(2) Ask him to refund half the month's rent since he gets to possess his property half a month early?
We'd really be looking to say, look let's call it even. We've given you half a month's head start on getting a new tenant - you can use that money for the floor.
As a landlord these wouldn't have any weight for me. If the lease says you pay on a per month basis then you owe through the end of the month, including not changing over utilities until the end of the lease.
Personally, if I rented it to someone who wanted to rent it earlier I would probably reimburse the previous tenant (which I did for a tenant just this past November).
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Thanks, goldilocks, that's really helpful!
Can we also use the following as leverage?
We gave LL notice that Jan 31 was our last day in the house. We have since made travel plans to leave on the 15th - so we are turning the property over 16 days early. If he is a jerk about the floor can we leverage the 1/2 month of free rent he is getting from us? Do we have any legal standing to either:
(1) Say/threaten that we have changed our minds and want use of the property until Jan 31 (since we've paid for it) so he can't rent it any earlier
(2) Ask him to refund half the month's rent since he gets to possess his property half a month early?
We'd really be looking to say, look let's call it even. We've given you half a month's head start on getting a new tenant - you can use that money for the floor.
Um, now you are showing your inexperience as a tenant, the landlord will not rent out or gain any extra money from the half a month early. The best is that he has a few days to complete any minor repairs or checks on the place. Very few people rent starting at the half month. He may let someone in for "free" for a few days early, etc, as a promotion to acquire a good tenant.
The closing cost / repayment is all a negotiation at this point, you have given your required notice and fulfill your legal duties, the landlord does his end. The grey area is the damage deposit, and anything could be negotiated between you two at this point, for any reason.
If you strongly disagree with the outcome, there is always small claims court, and at least LL is not likely to declare bankruptcy.
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Interim update: we had the inspection the other night. LL was fairly relaxed, even jovial with us. At one point he said he didn't think there was anything he would withhold money for, but at another he said the floor was a concern. However, even on the floor issue he wasn't as dickish as we thought - he said the floor looked a lot better than he had remembered it, and that he would talk to his floor guy about whether it may have been improperly refinished and/or whether a simple buff would spiff it up. So we don't really know what to expect.
The other thing he said he might withhold some money for was the cable line that had to be run upstairs through a wall. He didn't like its location/appearance and may remove it, charging us for the spackle/repaint job of the small holes in the wall (which should take all of 10 minutes...).
As an aside: we had some hot water plumbing issues in the last few months that we worried he would blame on us. DH's friend who is a master plumber was coincidentally with us during the inspection; he had assured us it was nothing we did and likely had to do with a water main leak on the street. LL had hired a handyman to come to the house when we did the inspection, and according to our plumber friend, it was obvious he didn't really know what he was doing. Most notably he didn't know how to remove the kitchen faucet, and quietly asked the realtor listing the house if he could come back the next day to finish the job -- no doubt so he didn't break the thing in front of 5 people.
Anyway, I will update when we receive the sec dep check and find out what he held back. Fingers crossed.
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I tried to attach photos here, hopefully it worked. I don't feel as if we abused the floor, but this was a high traffic area for for 2 adults and a 2 year old, for 16 months. DH feels bad that yes, at times the 2 year old banged things around...but I pointed out that the toddler did the same thing in our condo and our wood floors are fine, not a scratch to show for his banging efforts.
I'm sorry to tell you this, but any significant damage to a wood floor after 16 months is "damage" rather than "wear and tear". If you had lived in the house for 5-6 years, the threshold would be different.
There is no need to "refinish" engineered hardwood. It can be replaced for ~$2-4 per square foot, plus labor.
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The floors don't look good and do look damaged, but I agree that is a short period of time to have so much go wrong which is unusual and frustrating. I'm glad it seems that the landlord is not making a big deal of it.
At first I was somewhat sympathetic to you when you stated your landlord was "dickish" and referred to him as "my dick landlord", but my opinion has reversed since reading your other comments.
My reaction to the following:
1. About leaving on the 15th:
(1) Say/threaten that we have changed our minds and want use of the property until Jan 31 (since we've paid for it) so he can't rent it any earlier
(2) Ask him to refund half the month's rent since he gets to possess his property half a month early?
2. charging us for the spackle/repaint job of the small holes in the wall (which should take all of 10 minutes...)
3. the whole interchange on your "master plumber" friend and his astounding expertise vs. the landlord's "clearly incompetent handyman friend" which seems irrelevant to any of the issues at hand
is that you may well be the derogatory jerk who is incapable of viewing matters objectively here.
Your decision to leave on the 15th is yours. If you want to stay until the end of the month go ahead, who cares; however, you have no right to "threaten" your landlord with anything and, in particular, no right ask to half the month's rent because of your decision to leave early which is for your own convenience. Rentals run month to month generally and that is why 30 days notice is required from the 1st day of the month.
"Which should take all of 10 minutes" is self-centeredly dismissive of the actual effort and time it takes someone to obtain spackle and materials, travel to your home, prep the area, spackle, clean up, leave and wait for spackle to dry, get paint and materials, travel to your home, paint - which may require painting the entire wall so one spot does not stand out - clean up, pack up and leave.
I'm glad you are not my tenant - or my landlord for that matter. I expect you would not be great to deal with either way.
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Totoro, thanks for your feedback! It's always instructive to hear how one sounds to others - it was jarring to read that I'm coming across as the jerk. I didn't realize that my brainstorming here about possible strategies we might try if our landlord went "extreme jerk" on us would sound so terrible. The earlier feedback on that point was helpful, and we never pursued that angle.
We haven't been jerk tenants - he always got his rent early and we rarely called him. We also cleaned his house nearly to perfection when we left - windows washed inside and out, carpets professionally shampooed, baseboards cleaned, vacuumed behind the fridge, washer and dryer, swept the garage, fireplace cleaned, shelves and drawers wiped clean. I also ran touch-up paint over a few spots where our son had banged into walls. I don't think it's exaggeration to say that the house looked better upon our leaving than it did when the lease started.
What was so frustrating about him is that when we did call him for repairs (things that where we're from are legit landlord responsibilities), he would put it back on us and otherwise blame us. I had a notable conversation with him a few months into our tenancy where he said that should any of the aging, original appliances in the house fail for any reason, he considered it our responsibility to replace them at our cost. I said, "even if it stops working because it's old?" He said, "yes... it was in working condition when I turned the property over to you." I repeated the point a few times to make sure that's what he actually meant (it was). I was truly dumbfounded by that and spent a lot of time researching "useful life" of appliances and trying to figure out what our rights were. Hence our extreme nervousness at what he was going to say during the inspection, particularly on an issue that we think is a pretty gray one. We've never denied that the floors don't look great, but we do feel that we did not abuse or misuse them. We just had no assurance about whether we were going to be able to have a reasonable conversation with him about it - so I wanted to be prepared.
As for the plumber comment, it was neither here nor there -- a poorly considered comment that I'm sorry I made; I guess the whole situation got to me and led to some snark. Finally, the "it should take all of 10 minutes" comment was to indicate that the charge should ultimately not be huge for that one. The walls are textured (no need to have perfectly smooth finish), I saw spackle in the garage, and he has touch-up paint to match the rooms.
But again, thanks for the feedback Totoro. I will keep it in mind in my future online communications. I'm not a jerk in real life so I should take care not to come across as one in written form.
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Well, that was a nice response - thanks.
I agree that your landlord has it wrong on appliances and might indeed have a poor understanding of landlord responsibilities, which is frustrating. Where I live there are free detailed guides for landlords and tenants. Do you have something like this where you live?
As for painting, our experience with larger than nail-holes that need patching is that you need to repaint the entire wall or you get a noticeable spot where the paint is different: http://www.reviewjournal.com/life/home-and-garden/touch-paint-rarely-matches-rest-wall Your landlord might be fine with just painting over the spot though.
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I'm an owner/manager of rentals and had some issues with a hardwood floor being scratched and dented by furniture and dog claws, and I tried this method which helped quite a bit:
"You could try puffing it out with steam. Use a pin to poke small holes in the bottom of the hole through the finish. Wet a corner of a clean white rag. Press it to the dent, and apply the tip of a hot clothes iron. It should swell the dent back up to the surface in most cases. But you will may have to remove the finish first if that first method doesn't work. You can do this by sanding the dented area, or applying a chemical stripper to expose the bare wood. Then apply a wet corner of a white clean rag to the spot, just as you apply the hot tip of a clothes iron. Use distilled water so you don't cause a mineral stain if your water has iron in it. This should puff the wood back to the surface. You should let this dry overnight, and then fine sand and attempt a touch up."
Also, some of those scratches are showing up because of the dirt in them. If you can clean the dirt out and puff the deepest ones with steam, it might help the appearance enough to appease the landlord.
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To update this thread...
I suppose I shouldn't be shocked that we have not received our security deposit back, despite both our lease and CA law saying that we should have received it within 21 days of turning the property over. (21 days was yesterday)
DH and I debated the tone/length of the message to send him to put him on notice that he is late; in the end we went with a friendly, we're-giving-you-the-benefit-of-the-doubt email. In it we requested return of the deposit within the next week. (I may also send a return-receipt copy of the email via snail mail.) If he doesn't, I believe we'll be on strong footing to say he acted in bad faith and if that's the case we could sue and potentially get our deposit x 2 back.
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I hope you get your deposit back without too much trouble.
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Sorry to hear he's dragging his feet...hope he gets the check in the mail to you soon. For some people it really is like pulling teeth for them to pay out money they owe. :-/ I refund tenant deposits immediately, unless work has to be done which requires a receipt, and even then I get it to them by the required date.
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Thanks for the replies. We have sample letter language but wanted to the friendly informal way first. It's been 72 hours since emailing LL and we haven't heard a word from him. He was usually prompt about replying to email when we were his tenants, so... WTF?
Seems like it may be time to get more formal and less nice...
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He didn't do what he should have - sent you an itemized list of deductions and the balance of what was left (if any). At this point you should be getting the whole thing back, and damages if you want to pursue.
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So he finally wrote back:
Thanks for following up. I apologize, but I have been trying to wrap up things and get the house rented. We have found a new tenant, who is scheduled to move in on 2/15. I was planning to send you a check this week, after I have everything done. I will definitely get it out to you by the end of the week.
There were two larger issues and a few minor items that needed to be addressed. One was the kitchen floor scratches. As I mentioned when we met, I had Tulip look at it and they recommended a light touch up and new coat of polyurethane. However, the initial estimate was over $1,400. After bidding it out to other contractors, I found someone who can do a light sanding and coat for $410. The other issue is the hot water problem. It seems that the handyman’s “fix” of cleaning the canisters out did not work, so I am having to look into other alternatives. I don’t know yet what the fix is, buy obviously, if it is something other than routine maintenance, then I will not withhold for that. It will be looked at on Wednesday and I hope to have the answer then.
The other small things were:
1. back yard clean up
2. garden pruning, weed pulling, and replanting (the flowers in the planter box all died)
3. battery replacement -- replacement of a few light bulbs (front door and side garage door), clearing hair from sink drains,
4. Clear the clogs in the bathroom sinks.
5. Caulk the toilet bases.
6. Adjust the back dining room door to close and open easily.
7. Remove coax cable from bedroom and office, patch and paint.
There were other items that I have the handyman working on that I will bear as my own expense. They are:
[list of 12 things, including #5 and 6 from the above list, so he must have made a typo]
I hope all is well and Dan is back from his “road trip.” With the weather you have been having, I’ll bet you wish that you were still in California. Take care and I’ll be in touch soon.
I can live with the $410 for the kitchen floor; I thought it would be much more $$$ for that. I think I mentioned the hot water issue earlier in this thread; I don't see how he can charge us a red cent for that - hot water is a habitability issue, plus we did nothing to cause it.
He is right that we didn't replace the annuals in the flower box that died, so I could see that charge. I'll have to ask him to specify what the back yard cleanup and weed pulling is, since we weeded and mowed before we left. PLUS the garden area was overrun with weeds when he rented to us; we restored it to better than it was when we moved in. Like I said items #5 and 6 were repeated in his own list, plus those seem like regular wear and tear issues to me.
How much of a stink would you make about these deductions? He is beyond the 21 day window (so, legally speaking, per arebelspy's comment, I believe he is supposed to return the entire deposit), so would you play hardball at this point? What would you communicate back to him?[/list]
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I have had rentals for over 10 years.
I would say everything on that list is normal wear and tear except #7 if it means you installed something in a bedroom and he had to remove it.
And of course the floor scratches.
It seems odd that he's charging for the hot water system if it's *other* than routine maintenance. Was it in the lease that you should maintain the water heater? I would only charge someone for fixes to a water heater if they actively did something to break it. Like drop an anvil on it.????
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I have had rentals for over 10 years.
I would say everything on that list is normal wear and tear except #7 if it means you installed something in a bedroom and he had to remove it.
And of course the floor scratches.
It seems odd that he's charging for the hot water system if it's *other* than routine maintenance. Was it in the lease that you should maintain the water heater? I would only charge someone for fixes to a water heater if they actively did something to break it. Like drop an anvil on it.????
The water problem isn't the water heater - we had it checked. Our plumber friend thinks it is likely sediment that's come up through the pipes due to a water main leak on the street outside. LL's comment was indicating that if it's something other than routine maintenance he wouldn't charge us for it. There's just no way it's a routine maintenance thing.
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Do you want to use this landlord as a reference again or teach them a lesson in doing the right thing and following the law as a landlord?
Personally, if I were you, I would be demanding the whole thing back. And I'm speaking this is as a landlord. I think he has a duty and obligation to follow the law, and he did not. This is a good lesson for him so he doesn't * other people over in the future. Plus the whole trying to bill you for the water heater thing annoys me as well. You are entirely within your rights to get everything back, and I personally believe that you should. The only reason why I wouldn't be seeking damages right now is due to the hassle. But resolve it however you want.
I'd send them something roughly like this.
You are in violation of California state law, due to your failure to refund what was due within 21 days. Per Granberry v. Islay Investments ((1995) 9 Cal.4th 738, 745 [38 Cal.Rptr.2d 650, 653]. See California Practice Guide, Landlord-Tenant, Paragraphs 2:783-2:783.6 (Rutter Group 2011).), the entire amount of the security deposit is due back to me. Please send the entire amount of $____ within 5 business days or I will be forced to pursue both this amount, and damages, via legal remedy. Thank you.
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I have had rentals for over 10 years.
I would say everything on that list is normal wear and tear except #7 if it means you installed something in a bedroom and he had to remove it.
And of course the floor scratches.
It seems odd that he's charging for the hot water system if it's *other* than routine maintenance. Was it in the lease that you should maintain the water heater? I would only charge someone for fixes to a water heater if they actively did something to break it. Like drop an anvil on it.????
The water problem isn't the water heater - we had it checked. Our plumber friend thinks it is likely sediment that's come up through the pipes due to a water main leak on the street outside. LL's comment was indicating that if it's something other than routine maintenance he wouldn't charge us for it. There's just no way it's a routine maintenance thing.
If it is routine maintenance, that's on him. The only way you are liable is if you did something to damage it.
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Do you want to use this landlord as a reference again or teach them a lesson in doing the right thing and following the law as a landlord?
Personally, if I were you, I would be demanding the whole thing back. And I'm speaking this is as a landlord. I think he has a duty and obligation to follow the law, and he did not. This is a good lesson for him so he doesn't * other people over in the future. Plus the whole trying to bill you for the water heater thing annoys me as well. You are entirely within your rights to get everything back, and I personally believe that you should. The only reason why I wouldn't be seeking damages right now is due to the hassle. But resolve it however you want.
I'd send them something roughly like this.
You are in violation of California state law, due to your failure to refund what was due within 21 days. Per Granberry v. Islay Investments ((1995) 9 Cal.4th 738, 745 [38 Cal.Rptr.2d 650, 653]. See California Practice Guide, Landlord-Tenant, Paragraphs 2:783-2:783.6 (Rutter Group 2011).), the entire amount of the security deposit is due back to me. Please send the entire amount of $____ within 5 business days or I will be forced to pursue both this amount, and damages, via legal remedy. Thank you.
Thanks! No, we won't need to use him as a reference. As homeowners we are very unlikely to need a good word from him in the future.
I am on board with teaching him a lesson, though my husband is worried about "poking the bear" by being too aggressive (leading LL to withhold $ anyway, or sue us separately for expenses), thus sending this whole thing to court across the country (we're now living in Mass.). We're asking ourselves the question, "how much money is it worth it to us to be done with this whole thing and never have to talk to him again?"
That said, I'm still leaning toward using your language ARS and taking the risk of him suing us... just need to get DH on board before pulling the trigger.
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I get what you're saying. I once went all legal on a tenant with whom I had had a good working relationship and it completely backfired. I clearly insulted them and the whole them by not giving them the benefit of the doubt that they would act honorably. I have regretted it, but that is also with the benefit of hindsight. When I was in the middle of it, their intentions were not so obvious.
Has he ever given you reason to doubt that he'd do the right thing if you explained politely what you expect? You can assert your rights without demanding them.
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Has he ever given you reason to doubt that he'd do the right thing if you explained politely what you expect? You can assert your rights without demanding them.
Actually, yes. Throughout our tenancy we found him to be unreasonable on items that clearly involve landlord responsibility (most notably what I wrote up-thread about his assertion that we would have to replace his refrigerator if it crapped out due to age).
Here is what I sent:
Dear LL,
Not having heard from you for several days after our inquiry on 2/5/15, we researched California law governing the return of security deposits.
Unfortunately, you are in violation of California state law due to your failure to refund a full or partial security deposit within 21 days. Per Granberry v. Islay Investments ((1995) 9 Cal.4th 738, 745 [38 Cal.Rptr.2d 650, 653]. See California Practice Guide, Landlord-Tenant, Paragraphs 2:783-2:783.6 (Rutter Group 2011)), the entire amount of the security deposit is due back to us.
Please consider this our formal demand letter, and send the entire amount of $2700, plus the $79 water heater service charge we incurred (receipt attached) plus $150 for the patio set you purchased from us, for a total of $2929 within 5 business days (Feb 17) or we will have to pursue both this amount, and damages, via legal remedy.
Our address is...
We hope to hear from you promptly.
Interestingly, I just learned that he would have to file a suit against us in MA - he can't sue us in CA because we don't live or work there anymore. This leaves him with two possible courses of action:
(1) Return the deposit as demanded and chalk this up to a lesson learned;
(2) Withhold whatever the hell he wants to, forcing us to sue him to get it back
I think the odds are greater that he will do #2 than #1, which sucks for us. We'll see what happens.
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I agree he's likely to ignore you or not comply, meaning your next letter should outline the damages that will be due. You should also look into CA tenant advocacy groups that can help.
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Interestingly, I just learned that he would have to file a suit against us in MA - he can't sue us in CA because we don't live or work there anymore.
I wouldn't be so sure about that. All of the facts of the case arose in California so he can probably sue you there. However, he would have to effect personal service in your current state of residence before the case could proceed.
He likely also has the option to sue you in your current state of residence but that would not be required normally.
If the amount in controversy exceeded $75,000, you or he could also sue in federal court based on diversity jurisdiction.
Interesting, maybe I'm wrong on that. This is where I read it: http://smallclaims.cc-courthelp.org/index.cfm?fuseaction=page.viewPage&pageID=4843&nodeID=24&stopRedirect=1 (http://smallclaims.cc-courthelp.org/index.cfm?fuseaction=page.viewPage&pageID=4843&nodeID=24&stopRedirect=1)
If he ignores completely, that will make our decision to sue much easier - it will be worth it for us to travel to CA to show up in court if he keeps all $2700 (that's a lot of dough!). Our decision will be a little bit harder if he, say, withholds $500 and sends us the rest, as we'll have to decide whether the travel and hassle is worth it. As far as I understand it, it's actually pretty rare for CA courts to award damages in these situations b/c it's hard to prove "bad faith."
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Wouldn't he have to sue in small claims? At most he would be seeking $400-800 (probable upper limit) in damages.
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Wait, he leased you a place with annuals and is now charging you to replace plants that have a life expectancy of just one year? Just no.
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Just something to keep in mind (I don't have personal experience as to how true it is). But I've been told even if you file in small claims court there is no recourse if the landlord still does not pay you after that. They can't garnish wages or force them to pay. Can only make a judgement against the landlord. At least that's the advice I was given after getting jacked around by my last landlord keeping my security deposit. It was $500 and the list of why it was being withheld was always changing.
I HATE dishonest landlords that want the tenant to pay for wear/tear and maintenance on their property. They want all the perks and no responsibility. Deadbeats. I feel your pain...
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Angie, what state are you in? I believe in California you can garnish wages - income from rental property, for example. But maybe I need to research that more!
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Colorado. But as I said that's what I heard I didn't research too much.
It became obvious that my landlord had no money to give me. She was continually making up different reasons for withholding money after I would shoot down the original ones. So I gave up. Glad she only asked for a $500 deposit or else she would have taken way more!
I wish people would recognize how the housing collapse has hurt renters too. Tons of people are now playing landlord and they never had any intention on doing so in the first place. Being a first time landlord they don't understand what's appropriate and what's not, especially in regards to security deposits and maintenance. Add on to that the reason they are in it is because they made poor financial decisions and it can be a disaster.
I really think there should be credit checks and references for landlords. No reason that they should have all the power.
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Update
We sent our demand letter on 2/10. In yesterday's mail we received a check...with more than $1000 withheld for the following (sorry for formatting, I don't know how to make a pretty table):
1 Hot water canister cleanout $75.00
2 Floor resurfacing $410.00
3 Replacement plants $76.57
4 Garden pruning, weed pulling $18.75
5 Battery replacement $6.50
6 Replace burned out lights $30.24
7 Clear clogs from bathroom sink $30.00
8 Caulk shower $74.00
9 Caulk toilet bases $52.00
10 Adjust front door to close easily $45.00
11 Adjust back door to close easily $45.00
12 Remove coax cable $150.00
$1,013.06
We're pretty annoyed at this point. Most of these items are normal wear and tear. Also annoying is that he says in his cover letter that we vacated the property on 1/31/15 which is blatantly untrue - he got his keys back on 1/14. But even more than that, he ADDED items to the list of deductions he was going to take, namely #10 and #11, which he explicitly said in his earlier email to us that he would pay for himself. #1 by the way is related to the plumbing problems he's had.
What would you guys do at this point? Keep in mind that we would have to fly across the country to sue him.
DH and I are stewing on this, but are wondering if we need to forgive and forget, that the time and mental energy we would spend teaching him a lesson would be much better spent focusing on our beautiful kids and our wonderful life here on the east coast.
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You have a specific amount of time to respond in writing and dispute it. I'd go ahead and do so. It doesn't mean any legal action or flying across the country, but just writing a letter and mailing it.
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You have a specific amount of time to respond in writing and dispute it. I'd go ahead and do so. It doesn't mean any legal action or flying across the country, but just writing a letter and mailing it.
I agree.
See if you can do some research on what constitutes wear & tear and include that in your letter. And, you can always file and see if he'll back down before you have a hearing. (btw, I'm sure you can get a plane flight back for much less than $1000+filing fees.)
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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.
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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 (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?
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They're irrelevant because he missed the deadline, right? So ignore them.
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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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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§ionNum=1950.5. (http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV§ionNum=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 (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:
(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.
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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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Okay - I've drafted a letter - open to any suggested edits:
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:
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?
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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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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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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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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.
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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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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"
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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.
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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.
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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!
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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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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."
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...
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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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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.
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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?
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3x2700 + 150 for the outstanding patio furniture debt.
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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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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.
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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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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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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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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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Wow. Hoping this gets worked out soon for you, Course11.
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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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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.
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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.
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Thanks Cathy! That was really interesting. :)