U.S. CitiesCity-Data Forum Index
Go Back   City-Data Forum > U.S. Forums > California
 [Register]
Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
View detailed profile (Advanced) or search
site with Google Custom Search

Search Forums  (Advanced)
 
Old 09-15-2008, 05:15 PM
crg crg started this thread
 
2 posts, read 17,666 times
Reputation: 12

Advertisements

I am new here and I have an urgent question. I am landlord in West Oakland and just served my tenant a 3 Day Notice to Vacate due to disorderly conduct/nuisance (it was 3 months of warning to her to keep quiet and stop interfering with other neighbors' peace ... her guests were threatening other neighbors, suspicion of illegal activity, police at the site several times due to domestic violence and other activity).

She is moving out today and wants: 1) pro-rated rent for Sept (she paid September); and 2) all of her security deposit back (minus cleaning and/or damages, of course.

I was very clear in my lease (it was a 1 yr lease) that she was to abide with quiet hours (10 pm - 7 am) so I feel that this is a breach of contract and I should not be at a financial loss. Creating a nuisance is also a breach of contract. Do I need to return all this money to her? My feeling is that I should not have to unless I find a replacement tenant (my duty to mitigate my damages).

Any advice would help. Thanks!
Rate this post positively Reply With Quote Quick reply to this message

 
Old 09-15-2008, 05:24 PM
 
27,839 posts, read 59,026,760 times
Reputation: 22543
In my opinion be thankful that she is leaving...

When I give a 3-day notice to pay or quit, I only charge rent through the day the tenant moves out.

Oakland has a rent board and rent control as well as a Rental Property Business License... Eviction can and often does become a long drawn out process because of a technicality such as providing copies of required notices to the rent board, etc.

You should consider joining the local Apartment Association if you are not a member already. Membership often provides access to local attorneys at no charge for a simple question...

Good Luck.
Rate this post positively Reply With Quote Quick reply to this message
 
Old 09-15-2008, 06:02 PM
 
Location: Piedmont, CA
35,062 posts, read 61,428,800 times
Reputation: 18879
Quote:
Originally Posted by Ultrarunner View Post
Eviction can and often does become a long drawn out process because of a technicality such as providing copies of required notices to the rent board, etc.

It can take months and the tenant can just sit there rent free in the meantime-then if they decide not to go to the hearing-even if you win the case, they still might not pay and your left holding the bag.

I had a very bad experience with a tenant like that once. Still irritates me to even think about it.
Rate this post positively Reply With Quote Quick reply to this message
 
Old 09-15-2008, 09:17 PM
 
Location: Full time RV"er
2,403 posts, read 6,225,464 times
Reputation: 1494
Quote:
Originally Posted by 18Montclair View Post
It can take months and the tenant can just sit there rent free in the meantime-then if they decide not to go to the hearing-even if you win the case, they still might not pay and your left holding the bag.

I had a very bad experience with a tenant like that once. Still irritates me to even think about it.
Promiss her any thing just ( not in writing ) just get her out. then in the State of California you have 21 days to do a refund of her Deposit funds (if one is due ). Send her your final statement , because of her violation of the contract you will send her any money's she has comming when you get a new tennant, that is the only time you can show how much your losses are . If she decides to take you to court as I have found in the past with rental situation simular to yours the Judge will most likely rule in your favor . She is the one that caused her loss.
Rate this post positively Reply With Quote Quick reply to this message
 
Old 09-16-2008, 12:08 AM
crg crg started this thread
 
2 posts, read 17,666 times
Reputation: 12
Thanks for all of your replies ... very helpful. Fortunately, she did move-out and gave me the keys. Unfortunately, she is threatening legal action if I don't give her back pro-rated rent and all of her security deposit. I told her that she is only entitled to it if and when I find a new tenant because she did breach the lease agreement. I hope this holds up in court!
Rate this post positively Reply With Quote Quick reply to this message
 
Old 09-16-2008, 10:55 AM
 
Location: Southern California
60 posts, read 231,829 times
Reputation: 38
First, see what your copy of Nolo's Guide for California Landlords and their companion, Guide for Tenants says about the matter (you DO have a copy of the de facto-guide for landlord-tenant matters?!).

Second, check with the rent-board and local laws regarding this stuff as Oakland may have more strict rules in favor of the tenant.

Third, don't lie or promise anything. It's unethical and it's illegal... and it can get you in trouble if the tenant decides to be more unethical than you.

At the end of the 21-day period, you can legally subtract all rent that is due up to that point, but nothing that will come due in the future (most tenants and judges do not know this). So you can charge the rent-due on 10/1/2008 against the deposit.

You must, at the least, send an itemized statement claiming the back rent, damages, etc on that 21st day. Regardless of whether you refund all, some or no money, make sure you send a statement. If you fail to do this, it could be interpreted as bad faith by the courts and you will lose your right to recoup damages from the tenant (and you may be subject to penalties that will be awarded to the tenant).


Second, the 3-day notice doesn't end her obligation on the lease. 1951.2 says you are correct--you are entitled to the lesser of all rent lost until you find a new tenant or what's stipulated in your lease (i.e. if your lease says breaking lease is 1-month of rent, then that's all the tenant owes).

You are legally obligated to mitigate damages (i.e. find a new tenant as quickly as possible) and be prepared to show you made an effort.


Technically, unless you have properly asserted your right to use the "lock-in" provision (CC 1951.4), you cannot "charge" the tenant for rent each month as it comes due. Since the tenant was issued a 3-day notice, "lock-in" most likely wouldn't apply anyway.

Technically, you are supposed to wait until you get a new tenant, can show the total damages, and then try to collect the final amount from the tenant (most likely go to court or collections). I am unsure if the courts strictly enforce this or not--though I think the only thing it would affect is if you can collect "late fees". Instead of late fees, just request interest when you file suit.


That all said, there are some wildcards. The tenant may be bluffing. The tenant may go get the help of some kind of tenant-organization. The Judge may not be familiar with the relevant laws and make an unpredictable ruling (in your favor or against).


I agree with Ultrarunner. Join an association of some sort... at the lease, make sure you are using up-to-date leases provided by reputable organizations and you have solid DIY guidance.

Luckily for landlords, most tenants are clueless about the rights. Unfortunately for landlords, there are some tenants who know their rights and will assert them over clueless landlords.
Rate this post positively Reply With Quote Quick reply to this message
Please register to post and access all features of our very popular forum. It is free and quick. Over $68,000 in prizes has already been given out to active posters on our forum. Additional giveaways are planned.

Detailed information about all U.S. cities, counties, and zip codes on our site: City-data.com.


Reply
Please update this thread with any new information or opinions. This open thread is still read by thousands of people, so we encourage all additional points of view.

Quick Reply
Message:


Settings
X
Data:
Loading data...
Based on 2000-2020 data
Loading data...

123
Hide US histogram

Over $104,000 in prizes was already given out to active posters on our forum and additional giveaways are planned!

Go Back   City-Data Forum > U.S. Forums > California
Similar Threads
View detailed profiles of:

All times are GMT -6.

© 2005-2022, Advameg, Inc. · Please obey Forum Rules · Terms of Use and Privacy Policy · Bug Bounty

City-Data.com - Contact Us - Archive 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 - Top