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I placed 1/2 months rent down to hold an apartment (have receipt with money put down, paid with check, apartment number and date also on receipt).
A few days later, on a Friday, an e-mail is sent from the manager saying the apartment is no longer available, but they have another unit (that I do not want to rent) they will hold for me. I read the e-mail the following Monday and reply saying I need to talk to my wife about it later today, I'll get back to you on Tuesday during your business hours.
The next time I check my e-mail I see that they responded shortly after my Monday e-mail and say the original apartment is mine, here is a lease to fill out. On Tuesday I call them and refuse to rent with them. I also request my deposit refunded. They state: we gave you a lease Monday, you refused Tuesday, the deposit is ours - that's how we run our business.
Can a rental manager make an agreement, state in writing (e-mail) they cannot fulfill that agreement, and then return to the original agreement at a later date without my consent?
I placed 1/2 months rent down to hold an apartment (have receipt with money put down, paid with check, apartment number and date also on receipt).
A few days later, on a Friday, an e-mail is sent from the manager saying the apartment is no longer available, but they have another unit (that I do not want to rent) they will hold for me. I read the e-mail the following Monday and reply saying I need to talk to my wife about it later today, I'll get back to you on Tuesday during your business hours.
The next time I check my e-mail I see that they responded shortly after my Monday e-mail and say the original apartment is mine, here is a lease to fill out. On Tuesday I call them and refuse to rent with them. I also request my deposit refunded. They state: we gave you a lease Monday, you refused Tuesday, the deposit is ours - that's how we run our business.
Can a rental manager make an agreement, state in writing (e-mail) they cannot fulfill that agreement, and then return to the original agreement at a later date without my consent?
Thanks, Sam
This one is technically kind of tricky. There are a whole bunch of contracts going on.
The initial contract for which you placed money on hold.
The second where they (possibly, depending upon a bunch of stuff) rescinded the initial contract and made a counter offer.
The third where they reinstated the original.
The argument can be made that the 2nd offer voided the first as both were written. However the leasing company will say that they merely made an attempt to change the offer and when met with resistance decided to honor the 1st agreement. If this is the coffer/contract was voided, you win.
Really depends whether the judge sees the email as a rescinded 1st offer or if they see it as a attempt to ammend that when not accepted then went back to the original contract. If this is the case they win. It is also relevant that the only offer out there with all 3 required elements (offer, consideration, and acceptance) was the first one. If it is seen this way, they win.
The Statute of Frauds under the UCC deals with this issue, provided all the conditions are met to have it apply.
It says this:
"(4) A party who has made a waiver affecting an executory portion of a lease contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver."
In this case, I think the leasing company could argue and win based on how quickly they responded to your communication that essentially stated that anything other than the contract as written was not acceptable.
Without seeing the actual documents, and knowing how much money is in question, my best guess would be that the leasing company legally has a right to refuse to return your money. As in essence you broke the only contract that had consideration.
They tried to waive a contract term (in this case the specific apartment). You notified them that strict performance was required (in this case, the exact apartment in the contract) and there was no material change in reliance (you hadn;t already boxed your stuff up and given it to the movers, destined for the address) and they gave you back the original.
You may want to consult an attorney or even get an opinion from Legal Aid but I would write to the management company (return receipt certified) and confirm everything you've written here. Point out that they told you the apartment you had put a hold on was unavailable and that the one they had available wasn't what you wanted. Tell them that their subsequent retraction came after you had already made other arrangements and that you expect full return of your deposit within 5 days of receipt of this letter, otherwise you'll have no alternative but to take further action.
(The reason for a certified return receipt letter is that even if they don't sign for it, you have proof that it was sent and that they refused it).
To me this sounds like a classic bait and switch attempt and in my opinion you're legally entitled to have your full deposit returned. Good luck!
I can see this may come down the exact words used in the e-mail (I removed names/locations only). It does sorta sound like they took my money without making sure the apartment was available.
Quote:
May 18, 2012
3:19:46 PM CDT
I'm sorry for the delay. Coincidently the resident in #5 had subleased his apartment for the remaining of his lease. I was waiting for him to get back to me to see if the subleasers wanted a different apartment or to back out.
Unfortunately that didn't work, but we still have the 1st unit at #3 still available. I have put a hold on this unit until I here back from you. I greatly apologize for the confusion and any inconvenience this may have caused you.
We will wait for your reply.
May 21, 2012
7:48:57 AM CDT
I need to make some calls. I just got back from graduation and haven't had much time. I had been working on transferring my insurances (the company I'm with now is not in Michigan) when I move and will have to call up those providers and put things on hold. #5 was a better fit because of the additional space - I'll have to talk things over with my wife regarding #3.
As you know, my wife is pregnant - we're on our way to the hospital this morning. I should be able to follow up with a decision Tuesday afternoon.
By our next communication my parents had assisted me in finding a new rental. On Tuesday when I requested my deposit returned it was a story of "check your e-mail, we offered you the apartment on Monday, never said it was unavailable." I also have documented my need for an apartment in June, and that the above e-mail would mean that #5 would not be available until sometime in July.
My next question is, how much additional loss can I incur by taking them to small claims court (other than the court fee). I'm wondering because they threatened me with attorney fees (Is that a real risk in small claims court?). The following e-mail also confuses me because they are defining a request for a refund as harassing and threatening (just to put it in writing somewhere?) and almost make it sound like the sublease was unauthorized and they could evict them. Also, there was never any previous conversation about what other parties were involved. When I initiated the hold agreement I was told it was a break lease agreement for the current tenant - that's it.
Quote:
May 24, 2012
10:46:14 AM CDT
I want to make it clear that we will not tolerate this harassment from you or your father. If your father makes another scene in the office with threats and yelling we will contact the authorities. If we receive any more harassing or threatening phone calls we will be contacting the authorities and turn this case over to our attorney. This harassment gives us little incentive to help you out on the deposit that is non refundable after 24 hours as stated on your application. If the #3 unit was not sufficient for you we would have had to give you the #5 unit. This is not about the money for us, it is simply trying to accommodate 3 different parties. If it were about the money we would have proceeded with the break lease and charged the residents with the break lease fee. With the sub-leasers the current resident would be able to avoid those fees. We were simply trying to accommodate all parties and give them the opportunity to make their complex situations work. You backing out not only affect our company, but also affects the other residents involved. We sent you the lease to #5 apartment you wanted on Monday morning so the other unit was not an issue when you back out on Tuesday.
XXXXXXXXXXXX, LLC carries a very good reputation in this town and in the courts. We hope that you will understand that this is business and we have done everything in our means to accommodate you.
I can't tell what allegedly went down between your father and these people but if this is all that you have in writing I still think that they're bluffing big time on this whole matter. Just the tone of the letter alone reminds me way less of a professional sitting behind a desk than a pompous little ass who's railroaded people in the past, has no clue about all the legal ramifications and thinks he knows how to intimidate. The letter is very poorly written, it sidetracks and backtracks and has enough typos to indicate that it was done in haste and without any legal advice at all.
I still suggest you write to them as I previously suggested and go from there. Many times when challenged these little pipsqueaks roll over belly up and capitulate.
You will only be faced with the choice of taking them to Small Claims Court if they won't return your deposit. The filing fee in Small Claims Court is negligible and, if your suit prevails, they'll be paying that court fee. If they should prevail on defense, it's not that likely that they would recover costs of attorney fees. The whole purpose of Small Claims court is not to incur expensive attorney expenses and this is why attorneys aren't allowed to represent plaintiffs in SC court and any expenses involved with their services by either plaintiffs or defendants aren't awarded. Again, their response indicates that they've not a clue ...
The whole letter is a rambling bunch of ignorant BS. Go deeper into that dark night and you'll prevail and put an end to this company's nonsense which they may well have pulled on others in the past.
This was a fairly complicated tale, but if I read it right, you've said that while they did say that you could have the original unit, you couldn't have it at the advertised time. If that is the case, then I would guess a judge would come down in your favor, as they cannot provide what you applied for.
If that is not the case, and the advertised unit would be available as scheduled, it becomes a very gray area, and there is no way to know which way a judge would come down.
Personally I don't think this sounds like a bait and switch. I think it sounds like a complicated mess. It sounds to me like the tenant in 5 gave notice they needed to break the lease, so the company ran the ad, then the tenant found someone to sublet to, so rescinded their notice, but you had already turned in the app. I think the company made a mistake running an ad that they shouldn't have without all the facts and then were trying to find a way to fix the problem.
This was a fairly complicated tale, but if I read it right, you've said that while they did say that you could have the original unit, you couldn't have it at the advertised time. If that is the case, then I would guess a judge would come down in your favor, as they cannot provide what you applied for.
If that is not the case, and the advertised unit would be available as scheduled, it becomes a very gray area, and there is no way to know which way a judge would come down.
Personally I don't think this sounds like a bait and switch. I think it sounds like a complicated mess. It sounds to me like the tenant in 5 gave notice they needed to break the lease, so the company ran the ad, then the tenant found someone to sublet to, so rescinded their notice, but you had already turned in the app. I think the company made a mistake running an ad that they shouldn't have without all the facts and then were trying to find a way to fix the problem.
After seeing the letter I agree with your assessment. I also don't think it was a bait and switch. I think they messed up and attempted to do the best they could with the mess without a lot of knowledge as to what was legal.
If the apartment was not going to be ready for move in on the previously requested date, especially if that was stipulated, then you are in good shape. Do you have in writing anywhere a move in date in June or a lack of availability for June of the apartment you had requested?
After seeing the letter I agree with your assessment. I also don't think it was a bait and switch. I think they messed up and attempted to do the best they could with the mess without a lot of knowledge as to what was legal.
If the apartment was not going to be ready for move in on the previously requested date, especially if that was stipulated, then you are in good shape. Do you have in writing anywhere a move in date in June or a lack of availability for June of the apartment you had requested?
Oh my gosh! You guys are right - I never thought to look on the application to rent move in date. I put money down originally (signed the form, etc...) with a specific date. The subsequent date they provided was later and no new corrected application was sent to me. Very interesting... not what I expected to argue over but at least I'm adding to the pile of technicalities that may favor my outcome. I'm writing them a letter (snail mail) at the moment.
I'll get it proofread and sent out in a few days. Thanks for advice, this forum has been very helpful - as much as I hate throwing away money I'd really hate to waste the Renter's time if I don't have a case.
Oh my gosh! You guys are right - I never thought to look on the application to rent move in date. I put money down originally (signed the form, etc...) with a specific date. The subsequent date they provided was later and no new corrected application was sent to me. Very interesting... not what I expected to argue over but at least I'm adding to the pile of technicalities that may favor my outcome. I'm writing them a letter (snail mail) at the moment.
I'll get it proofread and sent out in a few days. Thanks for advice, this forum has been very helpful - as much as I hate throwing away money I'd really hate to waste the Renter's time if I don't have a case.
If they changed the move-in date when they offered you the original apartment for the 2nd time, then this is not dealing with a technicality. This is what is called a "material term" and as the change to a material term of the contract was made by the apartment company and not you, they are technically the ones in breach of the contract. If they breached the contract, which it appears they did, then sending you the lease with the NEW date was technically an attempt to get you to form a NEW contract. If there was a change of a material term, the contract with the material term change is legally a NEW contract. As you did not accept this new contract with a new move in date, you are in fact due your money back.
Need help as well.
I went to an apartment and decide I wanted to move in I gave the money for first months rent and deposit as well. I gave the guy all my information and asked him if he could give me the lease to sign he said that the day I move in it would be given to me to sign. He gave me a receipt stating I payed the money for deposit and rent and that my months rent would be pro rated because I was moving in on the second week of the month. The apartment wasn't ready they were remodeling it it would be ready on a Wednesday I did state it was fine because I was planning to move in during the weekend. Before the apartment was even ready I have a personal emergency I called the owner said that I would not be able to move in asked if I can get my money back he stated that he would not be able to give me my money since we had an agreement of me moving in. I did tell him I never signed a lease or any paper work that said I wouldn't be able to get my money back and I even asked for the lease it wasn't my fault if he couldn't give it to me. I told him the only thing you gave me was a receipt stating I payed the money to him. He even had the nerve to tell me that he didn't know if the money orders I gave him were fake or real that really pissed me of. He said it would take two weeks for the banks to verify them. I had copies of the money orders called to verify if they had been cashed they had been cashed the Friday I had called him and he said he was going to call back to verify what I was stating was true. I did tell him I would give him a call back because I needed my money. Now I call him and he ignores my calls. I need help I need my 2k back.
Last edited by Aracelii; 12-18-2013 at 01:53 PM..
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