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  1. #1
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    Default Re: No Security Deposit, Dispute on Damage Amount, Landlord Threatening Collections

    Hmmm... ok, I'm not sure how to go about this.

    The landlord is telling me they are not subject to the "security deposit" law since there was no security deposit. It appears to me that they specifically didn't hold a security deposit just so that law wouldn't apply and I'd have no legal remedies. I wonder if I can pay the $336 to prevent them from sending to collections and then sue them for it back. I know that sounds crazy but I do not want this to go to collections in any case.

  2. #2
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    Default Re: No Security Deposit, Dispute on Damage Amount, Landlord Threatening Collections

    well, if there is no security deposit to return, then that portion of the law obviously cannot apply. That doesn't mean the rest of the laws, especially the laws speaking to claims for damages, does not have to be followed.

    this is the law he is arguing he benefits from not having to comply with since he is not withholding and of your deposit:

    554.609 Itemized list of damages; check or money order; contents of notice of damages.Sec. 9.
    In case of damage to the rental unit or other obligation against the security deposit, the landlord shall mail to the tenant, within 30 days after the termination of occupancy, an itemized list of damages claimed for which the security deposit may be used as provided in section 7, including the estimated cost of repair of each property damaged item and the amounts and bases on which he intends to assess the tenant. The list shall be accompanied by a check or money order for the difference between the damages claimed and the amount of the security deposit held by the landlord and shall not include any damages that were claimed on a previous termination inventory checklist prior to the tenant's occupancy of the rental unit. The notice of damages shall include the following statement in 12 point boldface type which shall be at least 4 points larger than the body of the notice: “You must respond to this notice by mail within 7 days after receipt of same, otherwise you will forfeit the amount claimed for damages.”.
    but I do not believe it allows him to not comply with the requirement of making the claim itself

    554.610 Effect of noncompliance with notice of damages requirement.Sec. 10.
    Failure by the landlord to comply with the notice of damages requirement within the 30 days after the termination of occupancy, constitutes agreement by the landlord that no damages are due and he shall remit to the tenant immediately the full security deposit.
    so, since he sent you notice within that 30 days, he can legitimately make the claim of damages.

    but take note of this statute:

    54.613 Action for damages; retention of security deposit; waiver.Sec. 13.
    (1) Within 45 days after termination of the occupancy and not thereafter the landlord may commence an action in a court of competent jurisdiction for a money judgment for damages which he has claimed or in lieu thereof return the balance of the security deposit held by him to the tenant or any amount mutually agreed upon in writing by the parties. A landlord shall not be entitled to retain any portion of a security deposit for damages claimed unless he has first obtained a money judgment for the disputed amount or filed with the court satisfactory proof of an inability to obtain service on the tenant or unless:
    (a) The tenant has failed to provide a forwarding address as required by section 11.
    (b) The tenant has failed to respond to the notice of damages as required by section 12.
    (c) The parties have agreed in writing to the disposition of the balance of the deposit claimed by the landlord.
    (d) The amount claimed is entirely based upon accrued and unpaid rent equal to the actual rent for any full rental period or portion thereof during which the tenant has had actual or constructive possession of the premises.
    (2) This section does not prejudice a landlord's right to retain any security deposit funds as satisfaction or partial satisfaction of a money judgment obtained pursuant to summary proceedings filed pursuant to chapter 57 of Act No. 236 of the Public Acts of 1961, as amended, being sections 600.5701 to 600.5759 of the Compiled Laws of 1948 or other proceedings at law. Failure of the landlord to comply fully with this section constitutes waiver of all claimed damages and makes him liable to the tenant for double the amount of the security deposit retained.
    within 45 days...

    that means, if he does not sue you within 45 days after the termination of occupancy, he cannot make a claim in court. Then, his failure to comply with the rules within constitute a waiver of all claimed damages.

    so, unless he sues you within 45 days, this is no longer a valid debt and he cannot legally allow it to be reported to the credit reporting agencies.

    the "for damages which he has claimed...." section means the lack of deposit is not relevant.

    his failure to demand a security deposit does not excuse him from the requirements to make a claim, which if there was a deposit would be above and beyond that amount, within 45 days.

  3. #3
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    Default Re: No Security Deposit, Dispute on Damage Amount, Landlord Threatening Collections

    The provisions of the LTRA relate to claims against security deposits, and neither preempt nor shorten the limitations period for common law claims for rent owed or for damages.
    Quote Quoting Oak Park Village v Gorton, 128 Mich App 671, 679-680; 341 NW2d 788 (1983).
    A statute of limitations must afford a reasonable time within which a suit may be brought. Given the other sections of the LTRA, which provide for a 30-day notice of damages and a 7-day response by the tenant, there would commonly be fewer than eight days within which to commence suit for all damages, even if those damages were in excess of a security deposit. This is an unprecedentially brief time; one so brief as to be deemed unreasonable. Dyke v Richard, 390 Mich 739, 746; 213 NW2d 185 (1973).

    We, however, do not deem the 45-day time limit of § 13(1) to be a statute of limitations because no legislative intent to shorten the applicable period of limitations or to abolish the common-law action for damages is expressed in the title of the statute, as required by Const 1963, art 4, § 24. The title of the landlord tenant relationship act states:

    "An act to regulate relationships between landlords and tenants relative to rental agreements for rental units; to regulate the payment, repayment, use and investment of security deposits; to provide for commencement and termination inventories of rental units; to provide for termination arrangements relative to rental units; to provide for legal remedies; and to provide penalties." (Emphasis added.)

    Nothing in the title suggests that the LTRA is intended to abolish a pre-existing remedy for damages or to shorten an existing statute of limitations....

    [W]e hold that § 13(1), in light of the overall statutory scheme of the LTRA, deals strictly with claims for damages to be secured out of security deposits, and does not in any way enhance, restrict, or affect pre-existing statutory and common-law remedies for damages or for unpaid rent.

  4. #4
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    Default Re: No Security Deposit, Dispute on Damage Amount, Landlord Threatening Collections

    Oh, so again, Michigan law does not mean what is stated, not only without ambiguity but specifically with force, within their law.

    The limit of 45 days is so specific and clear I am aghast at the citations statement.

  5. #5
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    Default Re: No Security Deposit, Dispute on Damage Amount, Landlord Threatening Collections

    Digressing for a moment, the Michigan eavesdropping statute is poorly constructed, but I think the interpretation followed by the Michigan court's is less problematic than an interpretation that says you would be "eavesdropping" by recording a conversation between yourself and one other person on the basis that it's the conversation "of others", or that recording one person would be okay but adding a second person to the conversation would transform the recording into a felony offense even if the second person knew that he was being recorded. The legislature has chosen not to improve the statute, so the courts do the best they can.

    In relation to security deposits, the text of the statute does support the court's interpretation, and it actually makes sense to distinguish when a landlord can act to collect money from a tenant when he's not holding the tenant's money, as opposed to putting him on a short schedule to return the tenant's money if he cannot make a timely claim against it. The statutory speaks of "damage to the rental unit or other obligation against the security deposit", and in context the term "other" indicates a dependence between "damage to the rental unit" and "obligation against the security deposit". These cases are litigated because the legislature isn't exercising sufficient care in drafting statutes, but the courts are making reasonable interpretations and the fact that the legislature has allowed the interpretations to stand for decades suggests that the legislature is not offended by the courts' rulings.

  6. #6
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    Default Re: No Security Deposit, Dispute on Damage Amount, Landlord Threatening Collections

    Mr. Knowitall;740540]Digressing for a moment, the Michigan eavesdropping statute is poorly constructed, but I think the interpretation followed by the Michigan court's is less problematic than an interpretation that says you would be "eavesdropping" by recording a conversation between yourself and one other person on the basis that it's the conversation "of others",
    of others is quite clear. You cannot be others. There is no ambiguity there.
    In relation to security deposits, the text of the statute does support the court's interpretation, and it actually makes sense to distinguish when a landlord can act to collect money from a tenant when he's not holding the tenant's money, as opposed to putting him on a short schedule to return the tenant's money if he cannot make a timely claim against it.
    Wile the case cited does state that, I do not agree that is what the statute is saying.
    54.613 Action for damages; retention of security deposit; waiver.Sec. 13.
    (1) Within 45 days after termination of the occupancy and not thereafter the landlord may commence an action in a court of competent jurisdiction for a money judgment for damages which he has claimed or in lieu thereof return the balance of the security deposit held by him to the tenant or any amount mutually agreed upon in writing by the parties. A landlord shall not be entitled to retain any portion of a security deposit for damages claimed unless he has first obtained a money judgment for the disputed amount or filed with the court satisfactory proof of an inability to obtain service on the tenant or
    within 45 days...may commence and action...for damages which he has claimed OR in lieu thereof return the balance of the security deposit held by him.
    . Failure of the landlord to comply fully with this section constitutes waiver of all claimed damages and makes him liable to the tenant for double the amount of the security deposit retained.
    failure...to comply with this section constitutes a waiver of ALL claimed damages and [read as plus but obviously cannot apply unless there has been a retention of some or all of the security deposit] double the amount...retained. It says nothing that would allow it to be interpreted it was addressing ONLY the damages of no more than the amount of the deposit held by the landlord.

    Based on the construction of the rest of the LTRA, it is clear that all actions required of either the landlord or tenant are quite precise and intended to impose strict time limits upon all actions. There is no reason to believe the legislature did not intend to also impose a precise and very limited time requirement for the landlord to act in making a claim for damages, whether there was a security deposit involved or not.

    Along with that, as many states play follow the leader with laws and the intent, it is not uncommon for a state to impose a much shorter sol upon actions involving landlord tenant issues and specifically in damages claims issues.

    what I find equally problematic, although unrelated to the case at hand is this:
    A landlord shall not be entitled to retain any portion of a security deposit for damages claimed unless he has first obtained a money judgment for the disputed amount or filed with the court satisfactory proof of an inability to obtain service on the tenant or unless:
    Based on that statement, a landlord simply cannot retain any amount of the deposit based on damages, exclusive of rent due unless they first obtain a judgment. How can that even be put into practice since, if the landlord is precluded from retaining a deposit without first having a judgment but the law requires they refund the deposit within an amount of time that would not allow the landlord to obtain a judgment. That means if there are damages (exclusive of rent due), the landlord must first refund the deposit and then sue to obtain a judgment and then collect on that judgment. Kind of defeats the purpose of the deposit, doesn't it?

  7. #7
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    Default Re: No Security Deposit, Dispute on Damage Amount, Landlord Threatening Collections

    Quote Quoting jk
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    of others is quite clear. You cannot be others. There is no ambiguity there.
    So now you're agreeing with the interpretation of the eavesdropping statute? If you record your own conversation, it's not the conversation of others?
    Quote Quoting jk
    Wile the case cited does state that, I do not agree that is what the statute is saying.
    And the original trial court agreed with you. However, your attempt to reconstruct the statute seems less compelling to me than position taken by the Court of Appeals - yours requires ignoring the stated purpose of the statute and eliding from the interpretation the references to security deposits that support the position ultimately adopted by the Court of Appeals. It is reasonable in context to interpret "All claimed damages" as "all damages claimed against the security deposit", even before considering the precedent relied upon by the court in relation to the statutory modification of periods of limitation. There are plenty of reasons to believe that the legislature would treat differently a circumstance where the landlord was holding onto somebody else's money, versus where the landlord was not. I would be more sympathetic to your argument if the landlord in the case we're discussing held a security deposit.

    Your comment on MCL 554.613 reflects more bad drafting, and it becomes necessary to read into the language an effective stay of the 45 day rule once litigation has been commenced. An argument can be made (and has been by the Michigan Supreme Court) that it's not the court's job to fix legislative mistakes of this type, although I'm not sure how diligently they adhere to that principle, and I haven't tried to determine if that particular tension has actually been litigated.

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