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  1. #1
    Join Date
    Oct 2010
    Posts
    4

    Default Bad Faith Retention of Security Deposit

    My question involves a security deposit in the State of: California


    Our previous landlord is trying to withhold the security deposit. We are in California. Here are the emails sent back and forth, which sums everything up.



    Hello.
    It has now been 20 days since we have vacated the premises at 46927 Shale Common Fremont, CA 94539.

    We have not received the security deposit that is due to us, and we are requesting to pick it up tonight or tomorrow night.

    According to California Tenant Law, the landlord has 21 days to return the security deposit to the tenants.

    Tomorrow will be day 21. If you do not return the security deposit, we will pursue legal action.

    Please write back to let us know how to proceed from here.

    Thank you,
    Chris and Kelly



    Hi Kelly,
    On March 12, 2010 you and Chris signed a 2 year rental agreement. On Sept 1, 2010 you gave us notice that you are moving out on Sept 15th, and you only paid rent in the amount of $750 for the month of September. The rent for the month of September is $1500.

    As we discuss on September 16th that you and Chris broke the 2 year lease, and you did not pay of the rent due in September. Therefore no security deposit will be refunded.

    We later left you a voice mail saying that if we rented the condo by 10-1-210 then out of the goodness of our heart we would return $750 of the deposit. However today is Oct 5th and we have not rented the condo.

    The security deposit in the amount of $1500 is applied to the following:

    $1500 security deposit is not being refunded to you and Chris due to the fact the rental agreement for 2 years starting in March 2010 is broken. Item 3 in the rental agreement reads - the landlord may use the security deposit for any rent or other amounts owed pursuant to the lease agreement.

    OR

    $750.00 is used for balance of Sept rent

    Item 11 in rental contract reads late charge of 6% of the current rental amount shall be incurred if rent is not paid when due. Every month the rent was not paid when due. 6% of monthly rent of $1500.00 is $90 a month, times 7 months is $630.00. [THIS IS NOT TRUE, RENT WAS ONLY LATE 2 TIMES, AND IT IS MY UNDERSTANDING THAT IF A LATE FEE WAS TO BE APPLIED, IT SHOULD HAVE BEEN DONE AT THE TIME OF PAYMENT, AND THAT ACCEPTANCE OF PAYMENT WAIVES THE RIGHT TO BACK CHARGE A LATE FEE IN THE FUTURE FOR THE AMOUNT ACCEPTED]

    Other charges the bedroom wall with art work we clearly told you not to paint. However you did paint the art wall without permission. Therefore the charge in the amount of $120 will be applied to repaint the wall white.

    Best Regards,
    Leslie & Mike Perez



    Leslie,

    I highly suggest you review your own contract that you had us sign.

    Item 18. TERMINATION OF RENTAL AGREEMENT: TERM IS A MONTH TO MONTH TENANCY; EITHER PARTY MAY TERMINATE THIS TENANCY BY THE SERVING OF A 30 DAY WRITTEN NOTICE.

    We were told that we could paint in the second bedroom as we wished, but not to paint over the wall art. There was no stipulation that we could paint around it. When we completed the walk through on September 16th, I asked Mike flat out if there was anything that we could be charged for, and he said no everything was in great condition.

    California tenant law states that painting is not a recoverable damage. We got verbal consent to paint. $120 is an insanely high amount to attempt to recover. It would take 1 can of paint to repaint that room, which would cost approximately $30.00.

    We would like to ask that you return the security deposit in the amount of $720.00. $750.00 to recover the second half of Septembers rent, plus $30.00 for a gallon of paint. You have 1 day to return the money to us before you reach the legal limitations of 21 days after vacancy.

    The California tenant law does not recognize "goodness of the heart" security deposit returns. You need to pay the security deposit back.

    Thank you,
    Chris and Kelly



    In regards to my comment:

    We were told that we could paint in the second bedroom as we wished, but not to paint over the wall art. There was no stipulation that we could paint around it. When we completed the walk through on September 16th, I asked Mike flat out if there was anything that we could be charged for, and he said no everything was in great condition.

    That should read:

    We were told that we could paint in the second bedroom as we wished, but not to paint over the wall art. There was no stipulation that we could NOT paint around it. (MEANING WE WERE ALLOWED TO PAINT, JUST NOT PAINT OVER THE WALL ART) When we completed the walk through on September 16th, I asked Mike flat out if there was anything that we could be charged for, and he said no everything was in great condition.

    Thank you,
    Chris and Kelly


    How can we get our deposit back? I understand that they have the right to deduct $750, but I do not believe that they can legally withhold the entire deposit. Please help!! If nothing else, do we have a legit case to sue them in small claims court? They have now exceeded the 21 day limit.

    Here is a link to the exact contract they had us sign:
    http://www.lectlaw.com/forms/f091.htm

  2. #2
    Join Date
    Sep 2010
    Posts
    10,320

    Default Re: Bad Faith Retention of Security Deposit

    You need to tell us what is in the blanks on your particular lease. Specifically, in clause 2, is month-to-month checked or is a date entered?

    Your quote of ITEM 18 is different from what the form you linked in says.

    Even if you are on a month-to-month tenancy, you're obligated to pay for *ALL* of September.

  3. #3
    Join Date
    Oct 2010
    Posts
    4

    Default Re: Bad Faith Retention of Security Deposit

    You need to tell us what is in the blanks on your particular lease. Specifically, in clause 2, is month-to-month checked or is a date entered?

    Clause 2 in my contract reads: TERM: the premises are leased on the following lease term: 2 year lease

    Your quote of ITEM 18 is different from what the form you linked in says.

    Apparently, my link is exactly the same except for item 2 and 18. it should read as above

    Even if you are on a month-to-month tenancy, you're obligated to pay for *ALL* of September.

    understood, we have already agreed to that

  4. #4
    Join Date
    Sep 2010
    Location
    Oklahoma
    Posts
    695

    Default Re: Bad Faith Retention of Security Deposit

    The landlord has every right to keep the entire security deposit. I'll explain why...

    1. According to Item 18, a 30 day notice is required to break the tenant agreement, which you failed to do by only giving a 15 day notice, and not paying the complete months rent, therefore, you failed to contractually terminate the residency.
    The landlord can deduct the $750 from your security deposit for the unpaid rent.
    2. Because you failed to contractually terminate the residency the landlord can expect monthly rent payments from Oct - Mar, when the lease contract expires. $1500 x 6% = $90 x 7mo = $630
    3. The landlord can charge a reasonale amount to repair/replace any deficit items. The paint needed to be re-done. The landlord is under no obligation to do the work and can subcontract it out. $120 although steep I don't think it meets the level of unreasonable.

  5. #5
    Join Date
    Sep 2010
    Posts
    10,320

    Default Re: Bad Faith Retention of Security Deposit

    No, they are different, you said ITEM 18 says:


    Item 18. TERMINATION OF RENTAL AGREEMENT: TERM IS A MONTH TO MONTH TENANCY; EITHER PARTY MAY TERMINATE THIS TENANCY BY THE SERVING OF A 30 DAY WRITTEN NOTICE.


    What the form you linked says

    18. TERMINATION OF LEASE/RENTAL AGREEMENT: If this lease is based on a fixed term, pursuant to paragraph 2, then at the expiration of said fixed term this lease shall become a month to month tenancy upon the approval of LANDLORD.

    Where said term is a month to month tenancy, either party may terminate this tenancy by the serving of a 30 day written notice.


    If it, in fact, says the latter, which I suspect is does as what you posted makes no sense given what item #2 says, then you do NOT have a month to month tenancy. You broke a two year lease and the landlord is allowed to collect damages for his loss of rent until the end of the lease term or he gets the unit rerented.

    You're lucky you got out of it for just the amount of the security department. Frankly, as a landlord, I'd not offered you any concessesion after your snide comments in your response to his letter.

  6. #6
    Join Date
    Oct 2010
    Posts
    4

    Default Re: Bad Faith Retention of Security Deposit

    Quote Quoting flyingron
    View Post
    No, they are different, you said ITEM 18 says:


    Item 18. TERMINATION OF RENTAL AGREEMENT: TERM IS A MONTH TO MONTH TENANCY; EITHER PARTY MAY TERMINATE THIS TENANCY BY THE SERVING OF A 30 DAY WRITTEN NOTICE.


    What the form you linked says

    18. TERMINATION OF LEASE/RENTAL AGREEMENT: If this lease is based on a fixed term, pursuant to paragraph 2, then at the expiration of said fixed term this lease shall become a month to month tenancy upon the approval of LANDLORD.

    Where said term is a month to month tenancy, either party may terminate this tenancy by the serving of a 30 day written notice.


    If it, in fact, says the latter, which I suspect is does as what you posted makes no sense given what item #2 says, then you do NOT have a month to month tenancy. You broke a two year lease and the landlord is allowed to collect damages for his loss of rent until the end of the lease term or he gets the unit rerented.

    You're lucky you got out of it for just the amount of the security department. Frankly, as a landlord, I'd not offered you any concessesion after your snide comments in your response to his letter.
    I really don't appreciate the undermining tone that was written in. I came here for assistance, not to be ridiculed. please disregard the contract link I posted. Everything is the same except for those 2 items which read as follows:
    Item 2:
    TERM: The premises are leased on the following lease term: 2 year lease

    Item 18:
    TERMINITATION OF RENTAL AGREEMENT: Term is a month to month tenancy; eiter party may terminate this tenancy by the serving of a 30 day written notice. [this item is the only item in bold on the contract]

    From Caltenantlaw.com
    d. The landlord checked too many boxes [essentially], so that the agreement says that it is both a lease and a monthly tenancy -you get your pick, under rules that apply the contract as reasonably understood by the one who didn't create the ambiguity.

    So, as I have stated repeatedly, I understand that I have to forefit $750 for the rest of setember rent. However They are trying to back charge late fees that never existed..

  7. #7
    Join Date
    Sep 2010
    Posts
    10,320

    Default Re: Bad Faith Retention of Security Deposit

    There's no undermining tone. You posted two different things and then said you didn't and I just called for clarification.
    If your attitude to everybody is the same as your tone is to the volunteers here who are attempting to help you and to your landlord, you're going to have a hard time in life.

    I've got nothing more to say to you, you appear to have a two year lease, not a month-to-month tenancy. As I have stated, you're lucky that the amount the landlord is going to recover is only $1500. He appears to be entitled to more.

  8. #8
    Join Date
    Oct 2010
    Posts
    4

    Default Re: Bad Faith Retention of Security Deposit

    Quote Quoting flyingron
    View Post
    There's no undermining tone. You posted two different things and then said you didn't and I just called for clarification.
    If your attitude to everybody is the same as your tone is to the volunteers here who are attempting to help you and to your landlord, you're going to have a hard time in life.

    I've got nothing more to say to you, you appear to have a two year lease, not a month-to-month tenancy. As I have stated, you're lucky that the amount the landlord is going to recover is only $1500. He appears to be entitled to more.
    Are you a lawyer?
    My tone is serious. It is not rude, it is business and to the point. I am exceptionally peaceful and sweet when I have not been pushed over the edge.
    By the way, this issue was just resolved, and the LL agreed to give us $720 back in order to avoid court. Apparently the condo was never claimed as a rental, so they are not claiming the rental income which I guess would put them in a bind if we took this to court.

    Thank you for your assistance in this matter.

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