Deposit vs. Liquidated Damages

**DCrealestate** · 06-18-2012, 12:06 PM

My question involves landlord-tenant law in the State of: Washington, DC

I put a deposit on an apartment that was shown to me with wood floors and advertised as having wood floors. The agent informed me that they were going to carpet the apartment (prior to my submitting an application), but that the property would be granted on a first come/first served basis. So, I submitted the application and the security deposit without seeing the carpet, however, I expressed that I wanted to see the apartment with carpeting before signing the lease. After viewing the apartment with carpeting, I decided I did not want to live in the apartment anymore. The real estate agent is refusing to refund my deposit, claiming liquidated damages. I am arguing that the apartment was advertised under false pretenses and they showed me an apartment with wood floors, and then wanted me to move into a different apartment with carpeting. Does my argument stand to reclaim my deposit?

jk · 06-18-2012, 12:13 PM

You can't argue two arguments here as one defeats the other. First you said they showed you an apt with wood floors but told you they were going to install carpet. You claim you wanted the right to accept or deny the apt based on the actual carpet installed. Now you want to turn around and argue the apartment was not as shown (wood floors) but actually, it was delivered as promised (with carpeting).

Which is it: they installed carpet and that was a material alteration of the apartment which you were not made aware of or you are cancelling the contract on the basis that you reserved the right to cancel based on approval of the carpet.

so, what does your contract say to damages and the deposit should you cancel the deal?

**DCrealestate** · 06-18-2012, 12:24 PM

Good point on the two arguments here, I guess it was not quite as clear as I imagined it in my head.

The application states: "Upon notification that applicant has been accepted and that the lease has been prepared, applicant is obligated to execute said lease within three days of notification or deposit shall be forfeited as liquidated damages and the property shall be returned to the rental market."

They advertised the apartment with wood floors and showed me the apartment with wood floors. At the showing, they informed me that they were putting carpet in. I was unsure if I wanted to move in with the carpeting, however, given the first-come first served principle, I submitted the application but told the agent that I wanted to see the apartment with carpeting before I signed the lease (I should also note that I never signed a lease, only the application for the apartment).

My argument would be that I am cancelling the contract on the basis that I reserved the right to cancel the contract based on approval of the carpet (and no lease was ever signed).

Thanks.

jk · 06-18-2012, 12:44 PM

so, you wanted to bind them to a contract but allow you to escape should you change your mind, right?

My argument would be that I am cancelling the contract on the basis that I reserved the right to cancel the contract based on approval of the carpet (and no lease was ever signed).

Signing the lease is irrelevant here. You entered into a contract that allowed them to retain the deposit should you breach that contract which, unless you can prove otherwise, you have. As to your claim you reserved the right to cancel the contract based on approval of the carpet: what proof do you have.

Just the same; they would have to prove they informed you that they were installing carpets. Your argument would simply be that they advertised and showed you a wood floor apartment and they are now attempting to put you in a carpeted apartment.

The problem: if they have another equal unit without carpeting or are willing to remove the carpet, you are still bound to enter into the lease.

what you should have done is added the reservation concerning the carpet to the contract. (info for the future)