Landlord Gave Permission to Break Lease-Now Keeping Security Deposit (tenant, renter's insurance, inspection) - Renting -Apartments, houses, lease, tenant, landlord, agreements, termination - City-Data Forum

bswitzer1586 · 08-17-2013, 07:35 PM

This is California.

The house my wife and I were renting started having a really bad mold problem around Dec/Jan. We tried cleaning the mold and did everything we could think of to keep it from growing but the mold continued to come back. We informed our LL when we first started noticing the mold growing and told her we were trying to control it ourselves. 2 weeks later the mold had come back in force. Needless to say we were concerned about the livability of the house. We contacted our LL again and told her the seriousness of the situation (emailed pictures of the new mold growth and asked that she send out an inspector to test the mold). Three days later, we still hadn't heard anything from her and my two sons started getting some weird rashes on their legs. I contacted our renter's insurance and they immediately put us up in a hotel until the mold could be removed. During all of this, we kept in contact with our LL to let her know what was going on. She said she was going to send out a specialist and let us know what she was going to do.

2 weeks go by in the hotel and we still hadn't heard from her. I email her to ask her what was going on and she responds by saying that the inspectors said the mold was our fault and that she expects us to take care of it. This seemed suspicious so we called the company she used and they flat out denied what she said. They gave several recommendations to fix the mold problem and explicitly told us that the mold wasn't caused by anything we were doing.

I emailed her back and told her that if she wasn't going to fix the problem she could either let us move out or we were going to go to the health department. She ends up emailing us to "vacate the premises and let her know when we are moved out". So we move all our stuff out and I pay rent all the way up to the last day we had possession of the house.

3 weeks go by and we still hadn't received a deposit or itemized list. I email her and receive no response. Finally, after threatening a lawsuit she responds and says that she doesn't know why we would deserve the deposit back after breaking the lease and that if she had itemized everything "we would have owed her money".

My Questions:
After doing my research I feel like we have a strong case to take her to small claims court over this money. I was even wondering if we should include the cost of the hotel stay (the insurance company only covered so much. We ended up in the hotel for a month and a half by the time it was all said and done). Also, can we recover the rent we paid to her while we were in the hotel?

She said that if we take her to court she will counter sue us but didn't give us a reason. Does she have anything to stand on? Is there anything else we should be doing?

Thanks,
B

LOL_Whut · 08-17-2013, 08:06 PM

What do you have in writing about the source/cause of the mold? She claims it was your fault, and not her liability, so how will you counter that in court?

STT Resident · 08-18-2013, 04:58 AM

In CA the landlord has 21 days to return to you your security deposit less any itemized deductions for damages. Your landlord has failed to do so and you should therefore write her a letter (return receipt certified mail is preferable) advising her that since she's failed to do so she is legally required to refund to you your whole security deposit with no deductions. Give her two weeks from the date of the letter to make good.

If she fails to do so then you file in Small Claims court for the return of the deposit. If it comes to this, she has the right in court to countersue you for any alleged damages. You'd be well advised in this case to get written documentation from the company who assessed the mold issue that the mold was not caused by you.

Keep copies of any and all correspondence you have with the landlord - emails, texts included - not only to confirm that she let you out of your lease but that any and all other issues were discussed between you.

You'll find CA landlord tenant laws linked in the first "sticky" on this forum but this will get you started off. The letter is the first thing - keep it short, businesslike and to the point. Good luck!

NoMoreSnowForMe · 08-18-2013, 10:25 AM

Hi B,

I agree with STT 100%. I know, other posters are falling over in shock. But it's true.

Would you be okay with settling for just the deposit? I think you should be able to stay out of court, if you are.

On the other hand, I do think you have a case to get back not only your deposit, but also the rent you paid while in the hotel. The reason is, that in CA, if the place is uninhabitable, you shouldn't have to pay rent. Also, if you were to have reported the place to the health dept., and they deemed the place uninhabitable, they could require the landlord to pay for other accommodations. And you have the right to break your lease.

The big deciding factor here, is can you convince a judge the place was uninhabitable? Depending on what those mold inspectors said, maybe you can - and maybe you can't.

In theory, you could also try to get punitive damages for her withholding the deposit in bad faith, but again, not likely, because she may honestly believe it's fair to keep it.

So, you could use the above possibilities to bluff her into settling with you for the deposit. Actually collecting for anything beyond your deposit, in court is iffy, in my opinion.

So, howzabout one of my infamous letters?

Dear Ex-Landlord,

According to California law, under California Civil Code Section 1950.5, a landlord has 21 days to return a security deposit, and/or an itemization of deductions. If this is not done, the landlord forfeits his/her right to keep any of it.

Additionally, under a 1974 California Supreme Court decision, Green v. Superior Court, all leases and rental agreements are deemed to include an implied warranty of habitability. If a rental property is deemed uninhabitable, this is grounds for a tenant to break a lease. Therefore, we would not be liable for the rent already paid to you, after we relocated due to the mold.

We contacted the mold inspector, and were informed that the mold was not due to anything we did or did not do as tenants. Because the uninhabitability of the rental was not caused by us, as tenants, we believe the court will find you liable for our costs in relocating.

It is entirely feasible that the court will find that you should be required to pay us our full deposit of $_____________, the rent we continued to pay after the rental was uninhabitable in the amount of $_________________, as well as our hotel costs in the amount of $_____________________.

However, we would like to avoid going to court. We will settle for your refunding us the security deposit in the amount of $____________________, if you do so by _________________x date, and include a letter which states that any issues regarding our tenancy are fully settled.

If you are unwilling to settle for the deposit amount, we will take the matter to court and ask for the maximum allowed, including punitive damages in the amount of twice the deposit, as allowed by California law if a deposit is kept in bad faith.

We are hoping you will see that this is a fair compromise on both sides.

Sincerely Yours,

You

In case you want to check out the laws, etc., here are a couple of links:

Tenant Info: Repairs - Implied Warranty

California Tenants - California Department of Consumer Affairs

STT Resident · 08-18-2013, 10:40 AM

I advise against mentioning anything about the mold issue until such time you have in your hands a letter from the company who did the inspection attesting that the mold was not caused by you. You need only get to this IF you have to file a claim for the return of the security deposit. I also never forewarn any LL (and I've taken a few to court) that I'm going to sue them for this, that or anything else. In this case, a simple letter asking for return of the security deposit is more than sufficient (no quoting statutes or anything else) and is all you're legally required to do. Showing your hand just isn't a good idea in my experience. Quoting statutes is for lawyers to do and even they generally don't do that until court papers are filed.

NoMoreSnowForMe · 08-18-2013, 10:45 AM

Quote:

Originally Posted by STT Resident

I advise against mentioning anything about the mold issue until such time you have in your hands a letter from the company who did the inspection attesting that the mold was not caused by you. You need only get to this IF you have to file a claim for the return of the security deposit. I also never forewarn any LL (and I've taken a few to court) that I'm going to sue them for this, that or anything else. In this case, a simple letter asking for return of the security deposit is more than sufficient (no quoting statutes or anything else) and is all you're legally required to do. Showing your hand just isn't a good idea in my experience. Quoting statutes is for lawyers to do and even they generally don't do that until court papers are filed.

LOL! Well, that was short-lived. I disagree. I've had fantastic luck with letters like these. I learned from lawyers I worked for. If you want to bluff somebody into settling out of court, sometimes showing your hand is the way to go. If you don't, then you have to go to court to show your hand, which is what you're trying to avoid.

The laws and statutes are public info. Don't need to be a lawyer to use them. Plus, it will make her wonder if the OP has already talked to a lawyer.

And, if the LL shows this letter to a lawyer, the lawyer will say...yep, you could lose under these laws. I had this happen just recently in settling a deal with my daughter's tenants. Sent them a letter showing our hand, the tenant took it to a lawyer, and he told her to settle.

Bluffing 101.

STT Resident · 08-18-2013, 10:51 AM

Well, maybe you've been to court on these matters more often than I and know more lawyers so have more experience. I'm sticking to my opinion. My stance is that you may feel comfortable writing such letters but the average lay person is ill advised to write such letters when they don't fully understand the complexities of that which they're writing.

The primary issue here is that the landlord has failed to return the security deposit as legally required and all that's needed is a simple letter asking for it.

oregonwoodsmoke · 08-18-2013, 10:52 AM

You got out of your lease. The security deposit is not an unreasonable payment to break the lease. I suggest that you move on.

Lawsuits are not fun and there is no guarantee about what the judge will decide. You might win, but it is also possible that the judge will rule against you and then you get to pay all the landlord's legal expenses besides whatever other damages he decides to charge you with and the rest of the rent for the lease period. You open the can of worms, and there is no sure thing about what will crawl out.

In my opinion, you got out of it cheaply. Leave well enough alone.