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Thanks to this thread and some conversations I have had, I am able to piece together what happened and how that might be viewed legally. I apologize if this is long or redundant; just trying to clear things up. Also there are some things that I didn't mention because I forgot them:
* I answered an ad on craigslist in San Diego. Went to view the property. Owner told me that she was in a rush to decide. I applied for the apartment (rent $950).
* I emailed some reference information to Owner. I also emailed her that I was interested in the rental, and that I would be willing to pay more, in order to show her that I was serious. I offered $2450, thinking first ($950) + deposit equal to first ($950) + extra $550. I did not specify what the amount was to be used for.
She was in violation of CA Civil Code Sec. 1950.5(c) , which states A landlord may not demand or receive security, however denominated, in an amount or value in excess of an amount equal to two months' rent, in the case of unfurnished residential property, and an amount equal to three months' rent, in the case of furnished residential property, in addition to any rent for the first month paid on or before initial occupancy. Cal. Civil Code section 1950.5(c).
I did not know this and was not trying to trap her. She clearly doesn't know it either. I understand that judges are stricter on LLs / business owners re: knowing their regulations. * I was accepted for apartment. That evening, I deposited $400. into her bank account toward a security deposit. This was stated explicitly on the phone by Owner when discussing the transaction. (My intent was to deposit all $2450 into her account, but I couldn't withdraw more than $400 from ATM. Also, we hadn't signed anything yet, and I am foolish but not entirely insane.)
*The next day, I drew a cashier's check for the remaining $2050 and met her at the apt. At that time, I changed my mind. I felt like a complete jerk about this, as I had gone out of my way to tell her how much I wanted it. I was wrong - I am so happy that I realized how dingy and tiny it is before I signed a lease! I told her that she could keep some of the $400 deposit because I had cost her money.
* I emailed her that evening, apologizing again and stating that I thought $200 was a fair amount for her lost time on the market (less than 5 business hours).
*She replied via email, agreeing to return $200.
* A few hours later, she emailed again, retracting her offer and stating that she would keep the $400.
Civil Code section 1950(b) prohibits nonrefundable security deposits. "Security deposit" is defined broadly and includes costs associated with processing a new tenant.
* I emailed her a Demand for $200. It referenced CC 1950(b) and was partially written by a lawyer friend.
* She emailed me (many insults in the email, which was pleasant) saying she was forwarding all our correspondence to her lawyer and that I am lucky she isn't suing me.
I read that if a LL sues for rent - i.e. the rent for the month of April - then s/he can't legally rent the property at the same time. So she'd have to keep her property off the market for the duration of the lawsuit. I don't know that CA is the same, but this is the forum where I read it: Can I hold a prospective tenant liable for not taking the apartment? .
* We have had no further correspondence.
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I know that time is of the essence.
If the $400 is viewed as a security deposit, then I can sue for up to $1200.
Quoting lawyer friend: "mention that you consider the landlord's refusal to return your deposit to be in "bad faith" and put the landlord on notice that per Civil Code section 1950.5(l), the court may order her to pay you not only the $400 you gave her, but also an additional sum up to twice the amount of the security deposit as a bad faith penalty! "
If it were viewed as a holding deposit, and a judge decided that the Owner could keep all $400, would I be liable for more? I would not be liable for the $950, is this correct?
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So after all this, the one question remains - do I take her to Small Claims? I will almost certainly not do it.
I don't want to think about this viper anymore. I am a bit worried that I will suddenly get served papers from her attorney, but I think I'm in the legal right here, so if that happens I will deal with it.
But going to court? I don't want to see her face. She's mean. I think I will let this one die, even though I firmly believe that she doesn't have the right to keep my $200.
Thank you for your help. I wish I weren't a wimp, but I am. Live and learn.
* I emailed some reference information to Owner. I also emailed her that I was interested in the rental, and that I would be willing to pay more, in order to show her that I was serious. I offered $2450. I did not specify what the amount was to be used for.
She was in violation of CA Civil Code Sec. 1950.5(c) , which states A landlord may not demand or receive security, however denominated, in an amount or value in excess of an amount equal to two months' rent, in the case of unfurnished residential property, and an amount equal to three months' rent, in the case of furnished residential property, in addition to any rent for the first month paid on or before initial occupancy. Cal. Civil Code section 1950.5(c).
I did not know this and was not trying to trap her. She clearly doesn't know it either. I understand that judges are stricter on LLs / business owners re: knowing their regulations.
I don't think she would be in violation there. It clearly says they can collect up to 2 month's rent in deposit + 1 month's rent. $950x3 = $2850, so $2450 is an acceptable amount.
Quote:
Civil Code section 1950(b) prohibits nonrefundable security deposits.
"Security deposit" is defined broadly and includes costs associated with processing a new tenant.
The part about "nonrefundable security deposits" just means that you can't have part of the deposit be nonrefundable regardless of what condition the property is left in. For example, if your lease says that $150 is nonrefundable for carpet cleaning, but you have the carpets professionally cleaned yourself and the place is move-in ready clean, they have to give you your deposit back. They can only hold out for legitimate expenses. It doesn't mean that they always have to refund all of your deposit no matter what, or there would be no point to having a deposit in the first place.
The law about holding deposits may be more applicable here, but either way, a judge may decide she is entitled to something for lost rent. On the other hand, he may not, given the circumstances. Things don't always go the way you expect when standing in a courtroom.
Quote:
We have gone back and forth via email, and she threatened to sue me. I read that if a LL sues for rent - i.e. rent in April - then s/he can't rent the property at the same time. So she'd have to keep her property off the market for the duration of the suit. I don't have the exact code for that, but I read it on these forums for NY, I think
Two things. First, the laws for NY are different than the laws for just about anywhere else in the country, when it comes to renting, so take anything you see for there with a grain of very large salt. Second, in this case I believe that is actually referring to double dipping, which is a rule pretty much everywhere. Meaning that if you can't sue the tenant for April if a new tenant has moved in and paying April rent. You can only collect from one tenant for the same time period. That doesn't mean the property has to remain vacant for the entire time of the trial. It just means that if she does put someone in, she can't sue you for the time they live there.
- Oh thank you! I misread the part about in addition to first months' rent. You are correct; $2450 is within the law.
I feel pretty sure that she will rent it if she hasn't done so already. I saw it up on CL a couple days ago (for $875, actually), and it isn't there now. I don't think she'd be willing to let it sit during a lawsuit.
If she does sue me, I will get a lawyer and try to come out ahead. I am only a wuss sometimes. Not when attacked.
What would be the max $$$ she could get, if a judge sided completely with her? Any ideas?
You never said anywhere exactly what date this all went down, but putting 2 and 2 together from your posts, I'm going to assume it was on the 30th or 31st of March. If the property is rented now, that is less than a week of downtime. $950/4 is $237.50. So I can't imagine a judge granting more than that, which means if she sues you, it is entirely possible that the judge would tell her to pay you some of it back, instead of you paying her more. So I doubt she would take the risk. I really can't see her realistically suing you for anything on it, I think that was just a scare tactic.
Not a chance she's going to sue. Pity you are, by your own admission, such a wimp about getting your money back as she'll just turn around and do the same thing to somebody else. Oh well!
So after all this, the one question remains - do I take her to Small Claims? I will almost certainly not do it. I don't want to think about this viper anymore. I am a bit worried that I will suddenly get served papers from her attorney, and if that happens then I know I have a good shot at winning.
But fighting just makes my stomach hurt. I think I will let this one die.
Thank you for your help. I wish I weren't a wimp, but I am. I don't want to see her in Small Claims court, even though I firmly believe that she doesn't have the right to keep my $200. Live and learn.
I'm that way too, at least on a personal level. If the amount in debate ends in the word "hundred", I just write it off as lesson learned. If it ends in "thousand", then it is worth the time to go after the person in court. For $200, I would just go on with life, myself, since $200 doesn't break the bank for me, and isn't worth the ulcer. But if $200 is a lot to you, I think the odds are you would get something back in a courtroom.
That's a good way to look at it. $200 isn't nothing to me, but it's not enough $$ to go to court over. If I do end up taking her to court, it will be on principle. I'd love to have a judge tell her that her behavior was bad faith.
I'll post updates as/ if they happen.
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