I Want to Recover Damages Associated to My Rental House

[flyboy2805]

Harold the residential property management agreement does say "nothing in the residential property management agreement shall be construed as requiring the broker/designated property manager to bear any portion of losses arising from, or connection with, ownership or operation of the property". I hope I'm not screwed. The thing is that they were negligent. They did not perform a Move-In inspection and they did not perform a Move-Out inspection with damages everywhere. I insisted on being there and I took pictures. They never deducted anything from the security deposit because they never had a move-in report to begin with. I was wronged. The property management company has been found at fault with the real estate commission and will have to pay the fine, so I have ammunition.

[Harold99]

Harold the residential property management agreement does say "nothing in the residential property management agreement shall be construed as requiring the broker/designated property manager to bear any portion of losses arising from, or connection with, ownership or operation of the property". I hope I'm not screwed. The thing is that they were negligent. They did not perform a Move-In inspection and they did not perform a Move-Out inspection with damages everywhere. I insisted on being there and I took pictures. They never deducted anything from the security deposit because they never had a move-in report to begin with. I was wronged. The property management company has been found at fault with the real estate commission and will have to pay the fine, so I have ammunition.

They may not be responsible for the damages directly, but they held your security deposit and they incorrectly and incompetently gave it away (to the tenant). If the damages exceed the amount of the security deposit, IMO, they owe all that money back to you. It wouldn't matter if an employee stole the money, if they used it for a vacation or they lost it on a bad investment. That money was to fix excessive damage to the property and it was their responsibility to keep that money available for that purpose.

Again, it depends on the nature of the damage, what the place was like when it was rented, and how long the tenant had been there. Sure, some things are obvious. But others are less so. For example, scuffs on a floor. Is that more than usual wear and tear? Maybe, maybe not, depending on the extent of the scuffs, what the floor was like when the tenant moved in, and how long the tenant had been there.

That would be a contractual duty, however, not an issue of negligence.

You're right that the property management company may have breached the contract in returning the security deposit rather than withholding it for the damage the tenant did and would be liable for that. And it's likely easier to sue the property management company for that than chasing down the tenant who might not have much ability to pay at this point. But if the OP wants to be sure of getting fully paid he may want to pursue both the property management company and the tenant. For example, let's suppose, as you say, the damage is easily proven and is $5,000. The only failure of the management company in that case is that it let the security deposit go back to the the tenant. Let's say that security deposit was $1,500. The management company would be liable for breach of contract for the $1,500 security deposit it let go. But the property management company did not cause the damage to the unit. That damage would still be there even if the property management company had handled the deposit correctly. So the $3,500 of damage that was done that exceeded the security deposit is something the landlord would have to go against the tenant to recover.

Bingo. And I'm discussing the legal definition of the term since that's what will matter should it go to court.

I'm not disagreeing that the property management company may be liable to the OP for at least some of the damages he has here. But it's not a negligence claim. It'd be a breach of contract and/or breach of fiduciary duty claim.

Seems that you just re-wrote what I already said...but with some extra fluff.

[pg1067]

Putting answers in the quote box with the questions you're answering makes it extremely difficult to tell what text is yours and what text is mine.

As far as I can tell, you have a property manager that did a lousy job with respect to a particular tenant. You said something about some "real estate commission" finding the former employee at fault for something, but I'm not sure what that means or if it's at all meaningful for purposes of this thread. It also sounds like the "designated broker" and the "property manager" are the same person or entity.

I disagree with "Taxing Matters" that a negligence claim isn't possible here. However, a lot will be informed by the terms of your contract with the property manager, which I and multiple other folks asked about, but which you still haven't told us anything about.

I want to know if I can sue the designated broker

Anyone can sue anyone for anything, and you can sue for up to $10k in small claims court, where you wouldn't have to worry about the fine points of a contract versus negligence claim.

[flyboy2805]

The designated broker

Thanks Harold, can I sue the designated broker himself, instead of the incompetent property managers? They are no longer with the brokerage and I do not know their whereabouts

[pg1067]

can I sue the designated broker himself, instead of the incompetent property managers?

As I wrote previously, anyone can sue anyone for anything.

[flyboy2805]

'The relationship of the parties to this Agreement shall be that of principal and agent, and all duties to be performed by Broker/Designated property Manager under this Agreement shall be on behalf of Owner, in Owner's name and for Owner's account. In taking any action under this agreement, Broker/Designated Property manager shall be acting only as agent for Owner, and nothing in this Agreement shall be construed as creating a partnership, joint venture or any other relationship between the parties or as requiring broker/Designated Property Manager to bear any portion of losses arising out of or connected with the ownership or operation of the Property. Neither party shall have the power to bind or obligate the other except as expressly set forth in this Agreement. Broker/Designated property manager, under this Agreement, shall not be responsible for delays in the performance of any obligation unless there is an intentional delay caused by Broker/Designated property manager or its agents and employees. "

Thanks Payrol. Will the Designated broker do?

[PayrolGuy]

You want to sue the deepest pockets. Those belong to the management company.

But hell, you are free to name both the company and whoever signed the agreement as the "Broker/Designated property Manager".

[pg1067]

Will the Designated broker do?

Will the designated broker do what?

You still haven't clearly articulated the relationship between the "broker" and the "property manger" and the "management company." Between your original post and your response (post #8) to my initial responses (post #7), it appears that the "property manager" is merely an employee of the "management company." That being the case, any suit against the employee should be dismissed, and the employer (the entity with whom you apparently contracted) would be vicariously liable for any malfeasance or nonfeasance by the employee. However, also in post #7, I asked, "what is the relationship between the "designated broker" and the PM and you?" You responded (in post #8) by writing, "I employed the Designated Broker/Property Manager as the sole exclusive agent of management of my property." Your use of "Designated Broker/Property Manager" suggests that those to terms mean the same person or entity (as I pointed out in my post #13. You made a reference at the start of your post #14 to "The designated broker," but it appears you stopped in the middle of the sentence. However, you then asked whether you "can . . . sue the designated broker himself, instead of the . . . property managers" (plural). You also made a reference to "the brokerage," so now we've got the following four (or more) persons or entities in play here:

1. The "prop management company" (see post #1)
2. The "prop manager" (singular) (post #1) or "property managers" (plural) (post #14)
3. The "designated broker" (post #1 and numerous others)
4. The "brokerage" (post #14)

Other than #2 apparently being an employee or employees of #1, I can't tell what the relationship is between any of these persons/entities.

All that being said, the contract's express creation of an agency relationship suggests that, in addition to a breach of contract claim and possible negligence claim, you might also have a viable claim for breach of fiduciary duty. Those claims would exist against the other party to the contract (presumably the "prop management company"). You likely have no viable claim against employees of that company. Whether you have any valid claim against anyone else is impossible to determine without clarity as to who these other persons/entities are.

[flyboy2805]

PG here you go,

The property management and brokerage agreement governs a single managed property located at...blah blah..and referred to here as collectively as "Property" and is entered from date blah blah to blah blah, between Owner of the house(Me) and Broker/Designated Property manager(John Doe), by and through its authorized Agent(Mary Jane) who is duly licensed to manage the property

Owner(me) emplys the Broker/Designated property manager(John Doe) as the sole exclusive Agent of Owner to lease and manage the Property.

What do you think now? I think the Designated Broker can be sued for breach of fiduciary duty.

[llworking]

PG here you go,

The property management and brokerage agreement governs a single managed property located at...blah blah..and referred to here as collectively as "Property" and is entered from date blah blah to blah blah, between Owner of the house(Me) and Broker/Designated Property manager(John Doe), by and through its authorized Agent(Mary Jane) who is duly licensed to manage the property

Owner(me) emplys the Broker/Designated property manager(John Doe) as the sole exclusive Agent of Owner to lease and manage the Property.

What do you think now? I think the Designated Broker can be sued for breach of fiduciary duty.

That is still a bit less than clear. I think that you need to run that contract past a local real estate company who can read the exact names of the person's or entities involved.

However, let me give you an example of something. If someone who acts on your behalf works for a firm, and your contract is with the firm, then the firm is who you sue. In your example you gave individual names for everyone.