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Old 05-15-2009, 12:46 PM
 
739 posts, read 2,824,395 times
Reputation: 310

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Here is the situation. We moved to Texas from California and went into a 1 year lease on a house. When we moved in the house was not move-in clean. After living there for 8 years they did a superficial cleaning. 8 months into the lease we found a house and fell in love with it. We weren't looking but happened to drive by it one day and ended up buying it. So, we contact our landlord and asked if we find a new tenant to sign a 1 year lease, if he would allow us out of our lease. He said it was fine. We spend a few months (during our closing) looking for a new tenant and found one. The new tenant signed a year lease and our landlord was happy. We also paid a professional cleaning crew to come out and deep clean the place (2 ladies 4 hours each). Everything was fine until we discussed our deposit. Here is the email I got the day we moved out and the new tenant's lease became active:



================================================== =====
"Please keep the receipts for the cleaning people and email it to me. That would be helpful along with any other expenses you have incurred on the house so I can reimburse you for those items.

I can write those expenses off on my taxes but any deposit money I return can not be written off as I understand it.

I am looking for ways to get some money back in your pocket in order to be as fair as I can afford to be.

I am still discussing your deposit with Dolores so ...... keep me (and your deposit) in your prayers. "
================================================== ======



I am a Christian so I got a little annoyed that he was playing that card, but fine, I'd be patient and wait. I Also sent the following email back to him:



================================================== =====
" I have the house cleaning receipt. As of Saturday at 4:30pm, all of the keys and remotes were handed over to Kyle. As I understand it, he was moving in Sunday.

As for the house, we left it in just as good shape, if not a little cleaner than what we received it in since we did have it professionally cleaned. Minus the dog deposit, I expect to get a majority of the remaining deposit balance back. There isn’t anything that would need to use the deposit funds for. Let me know if you have any questions on that."
================================================== =======



I waited 40 days (Texas only requires 30 days for the landlord to refund the deposit or give me an itemized list as to what he was deducting). After 40 days I sent this email:



================================================== =======
"I hope all is well. We are more or less settled in now to our new place.

It is now been over 5 weeks since the new tenant moved in and our lease was terminated. I need to get a status update on our deposit as according to Texas law, it should already have been received. For your records again, my new address is:

XXXXXXX

I would really appreciate it and it would be very helpful if you send our deposit back as soon as possible. Thanks again!"
================================================== =======



Three days later I received this email:



================================================== =======
"It was good that you were able to help with the new tenant but he could move out before your lease is up.

If it had not been rented you would have been immediately responsible
for the entire remaining rent total through the end of the lease
(as my legal counsel understands the Texas Law.)

So you were only saving yourself money by helping with the new tenant.

However, under Texas Law, it appears that you defaulted on the leave by moving out before the end of the lease and therefore forfeit your deposit.

Please check with a Real Estate Attorney, knowledgeable in Texas Rental Law, before you waste any more time on this.

I must add that XXXX and I were put under considerable stress when you broke your lease. I wish I could be magnanimous about
your deposit but I do not have that kind of financial wherewithal. Of course, it does not help that you normally paid your rent late each month.

I am sorry for your misunderstanding. Good luck with your new home and we wish you and yours well."
================================================== ========



Not let me qualify but what he means is late. The rent is due the 1st and late after the 5th. I directly deposited money to his bank account, cash, every month on the 5th or before. He thinks because it was not deposited on the 1st of every month, I was late. Sometimes the 1st was on a Saturday or Sunday. Not to mention that it was cash and he did not have to wait to cash a check and wait for it to clear.

So right now I am pretty pissed. Not only did I find him a new renter who signed a lease that would extend over the amount of time I would have been there, I professionally cleaned the house on my dime expecting to get my deposit back.

According to Texas Property code, Texas Property Code - Section 92.109. Liability Of Landlord - Texas Attorney Resources - Texas Laws, he has to refund or give me an itemized list before 30 days are up otherwise he is considered to be acting in bad faith and owes me it all back.
Here is the lease I signed with him with some info edited out for privacy http://www.solvetechnology.com/temp/Texas%20Residential%20Lease%20Agreement_edited.doc (broken link). Do I have a leg to stand on if I take him to court? Also, he moved to Alaska and would have to fly out here for the court date. What should I do?
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Old 05-15-2009, 02:42 PM
 
Location: Seaford, Delaware
3,482 posts, read 18,116,564 times
Reputation: 2659
How much are you talking about? You need to decide if filing a suit will be worth the time effort and probably futile attempt to get the money.
If the owner is in Alaska, he can have a representative appear in court. Have you got receipts for the rent to prove it was paid within the grace period? No receipts, no proof.
It sounds like the owner is holding onto the property by the skin of his teeth and needs the deposit to hold his head above water. Did the new tenant pay a deposit? Extra income for the owner.
Do you have it in writing that the LL agreed to let you move and get a new tenant?
It also sounds like the LL is keeping the deposit as if it is income. texas law does not allow that, it has to be kept seperate. he also needs to send an itemized statemnt if he is keeping the money.
There are lots of questions that keep opping into my head as I type this. I'm also a LL in Texas, FYI.
It sounds like he is hoping you will go away. He needs the money.
Decide if the amouint is enough to go for a fight, get the receipts for the rent to prove you are not late. Have it in writing about the agreement to find a new tenant. Also, it is not legal to double dip on rent. If he has a new tenant with a new deposit, he owes you the full deposit.In Texas, as elsewhere, if it is not in writing, it did not happen.
I hate LLs that take advantage. It gives the rest of us a bad rep.
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Old 05-15-2009, 02:46 PM
 
Location: Boise, ID
8,047 posts, read 25,347,393 times
Reputation: 9372
I am of two minds on this. It sounds like you did what you felt was the right thing, and if you had been my tenant, I would have appreciated the effort, refunded your deposit and moved on. However, by doing the right thing, you may have put yourself into a bit of a bind, as far as legal rights go.

Most of what you said sounds like the owner thinks you are subletting the unit to the new tenant. However, you said the owner said they would let you out of the lease if you found a new tenant. That conflicts with part of the last email they sent you. If you are out of the lease, it doesn't matter if the new tenant moves out before your original lease would have been up, because they let you out of your lease. Unfortunately, this is a "he said, she said" unless you have something in writing letting you out of the lease. Do you know if the new tenants lease says they are subletting it from you or leasing direct from the owner? That might make a difference.

On the other hand, if you gave the keys to the new tenant directly, that is more like a sublet also. If you didn't do a walkthrough with the owner between when you moved out and the new tenant moved in, the owner can't know what you did for damage, so I would be hesitant to refund damage deposit without knowing what damage there is.


However, on the other hand, if your lease says that if you break the lease, you forfeit the deposit, you might be out of luck. I didn't look at the lease yet to see if it says that or not.

Your landlord refers to Texas law a few times, but behaves emotionally in other places, such as saying they want to be as fair as they can afford to be, which is not necessarily the same thing as legal.

My opinion is that your LL is not behaving professionally, but gave good advice when he told you to consult an attorney. I think you are in the right ethically, but may not be in the right legally.
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Old 05-15-2009, 02:55 PM
 
739 posts, read 2,824,395 times
Reputation: 310
The new renter signed a completely new lease and not as a subletter. I gave the keys over because the landlord lives in Alaska, so I made sure he didn't have to bother about anything. This guy didn't get a single day with getting rental money. I made sure of that.

I have a bunch of emails back and forth from him that I can use in court. Hopefully those help.
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Old 05-15-2009, 03:02 PM
 
27,256 posts, read 55,739,719 times
Reputation: 21546
I think he has outlined his position...

It appears the only way to resolve this is through the court...

I know things are different in Texas... so I have no idea what's involved to pursue your deposit...

At least you are still in the area...

Maybe one of the Texas people on the Forum can offer more?
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Old 05-15-2009, 03:06 PM
 
Location: Boise, ID
8,047 posts, read 25,347,393 times
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Quote:
Originally Posted by ShaneSA View Post
It also sounds like the LL is keeping the deposit as if it is income. texas law does not allow that, it has to be kept seperate. he also needs to send an itemized statemnt if he is keeping the money.
I didn't think about that part, as we don't have to hold it separate in my area. Its true though. The deposit is YOUR MONEY. The landlord just holds it as "security" against damage you might cause or rent you might not pay. By not returning it, or an itemized list of what repairs or expenses it was spent on, they are basically "stealing" your money. He isn't being generous by returning all or part of it, he is being legal. He can't claim a tax writeoff against it, it isn't his money.
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Old 05-15-2009, 05:37 PM
 
739 posts, read 2,824,395 times
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As for the 'late' payments, I am looking for my deposit slips (I just moved so not sure where they are packed), but doesn't he also have to prove I was late if he is trying to make that argument?

Also, is it considered late if not paid on the 1st, but paid before the penalty date? Is that 'technically' late?
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Old 05-15-2009, 05:58 PM
 
Location: SW Austin & Wimberley
6,208 posts, read 16,036,821 times
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Both you and the landlord made errors, as is usually the case in these disputes. The primary error being that changes to the original agreement, whatever each of you understood them to be, were not put into writing and signed by both parties. That alone, in my book, means you both deserve whatever you end up just for being bad business people. Always get everything in writing in a landlord/tenant relationship. Always, otherwise don't complain when things go wrong.

It's also interesting, at least to me as a landlord and property manager of almost 20 years, that so many landlord/tenant beefs begin with the tenant breaking the lease or otherwise breaching the original agreement, then later making the landlord out to be the bad guy.

He didn't cause you to decide on early termination of your lease. That's a decision you made on your own, and one you knew or should have known comes with financial risk and uncertainty. Your present circumstance is part of the risk you assumed when you decided to break your lease and move out early, and you alone, not the landlord, had control over your decision to take that risk.

Now, instead of enjoying your new home (which I'm certain you should have negotiated a really good deal on - much more than a $1,000 saving - if it was new and in Round Rock) and moving on with life, you want to sue the landlord over something for which your eventual success in court is questionable at best.

What the landlord should have done is what I do. I would have told you, in writing, that in order to terminate the lease early, you must provide written notice, specify your exact move-out date, include with your letter the reletting fee of 80% of one months rent paid in advance, and that you must leave all utilities on and continue paying rent on the first of each month until a substitute tenant is found. And that you also must keep the yard maintained and watered whether you still live there or not.

In other words, your decision to end your lease early ought not cost the landlord a penny, nor any uncompensated effort.

That said, it sounds like you accomplished the end result of most of that, less the reletting fee, which compensates the landlord not only for the leasing of the property, but also for the inherent risk and time involved any time a tenant turnover occurs. In this case, the time includes multiple conversations and emails back and forth with you, which would not have happened if you simply stayed and paid as agreed. The risk includes the fact that you're going to now apparently sue him over the deposit, and the possibility that the new tenant eventually doesn't work out either.

In order to receive your deposit back, you'll have to provide the court with evidence that you provided a proper written 30 day notice, satisfactorily completed all obligations under your lease agreement, returned the keys to the landlord, provided a written forwarding address, and left owing no money.

If any of that didn't happen, the landlord has no obligation to return your deposit. If all of that did happen, the landlord must explain to the court how the deposit was used up and itemize the deductions. He can't simply "keep" it. Your lease specifies a reletting fee but isn't specific about an amount or whether it is owed even if the you find a replacement tenant for him. The judge would sort that out and decide, and you can't be certain how that will go because Texas JP Court justices are generally unpredictable in matters of subjective interpretation of vague lease terms.

Bottom line, you are not a 100% innocent victim. You alone set into motion the events that brought you to this point, not the landlord. At least own that much of the situation. You could have avoided all of this entirely by not breaking your lease.

On the other hand, it sounds as if the landlord may not have a solid answer as to how the deposit is used up, and it sounds like you may have accomplished your exit from the property in a way that did not cause him lost rent.

You have a weak case and he has a weak defense. If you both end up in court, it's where you both deserve to be because you were both foolish enough to not keep your agreements clear and in writing.

Now you just have to decide if you want to punish him by dragging him into court, which he may well deserve, or if your time and energy is better spend on more positive life endeavors.

Steve
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Old 05-15-2009, 06:46 PM
 
739 posts, read 2,824,395 times
Reputation: 310
Quote:
Originally Posted by austin-steve View Post
Both you and the landlord made errors, as is usually the case in these disputes. The primary error being that changes to the original agreement, whatever each of you understood them to be, were not put into writing and signed by both parties. That alone, in my book, means you both deserve whatever you end up just for being bad business people. Always get everything in writing in a landlord/tenant relationship. Always, otherwise don't complain when things go wrong.
Ah thanks for that! I am an idiot and therefore should have my deposit stolen- you are right! What was I thinking?

Quote:
Originally Posted by austin-steve View Post
It's also interesting, at least to me as a landlord and property manager of almost 20 years, that so many landlord/tenant beefs begin with the tenant breaking the lease or otherwise breaching the original agreement, then later making the landlord out to be the bad guy.
Obviously your going to have a landlord perspective and I will have a tenant perspective. Did I break the lease- I guess so. But I did not call my landlord and say 'Haha sucker! Im moving out, sucka, good luck!'. No, I called and asked him if I find a new tenant who signs a new lease if I can be released from my lease. He said that is fine. I also said that I would make sure he didn't lose a cent on this and would pay, even after my move out day, until I got someone in there. Heck, I even paid some of the new tenants deposit to make sure I got someone in there for him. I paid rent up until the 4th and the new tenant paid on the 5th. Did I break my lease? Yes, but I cleared it with my landlord and made sure he was not financially hurt any which way.

Quote:
Originally Posted by austin-steve View Post
He didn't cause you to decide on early termination of your lease. That's a decision you made on your own, and one you knew or should have known comes with financial risk and uncertainty. Your present circumstance is part of the risk you assumed when you decided to break your lease and move out early, and you alone, not the landlord, had control over your decision to take that risk.
True, but my decision was based on the fact that he gave me the okay. The house I bought was on the market for almost a year. Their Realtor said they didn't even have people looking at it. If my landlord would have said there is absolutely no way I could do this, I probably would have waited to put and offer and go into escrow closer to my lease end date.

Quote:
Originally Posted by austin-steve View Post
What the landlord should have done is what I do. I would have told you, in writing, that in order to terminate the lease early, you must provide written notice, specify your exact move-out date, include with your letter the reletting fee of 80% of one months rent paid in advance, and that you must leave all utilities on and continue paying rent on the first of each month until a substitute tenant is found. And that you also must keep the yard maintained and watered whether you still live there or not.
Okay, and is that in the lease you make them sign? Its sure as heck not in mine nor was this ever told to me by my landlord.

Quote:
Originally Posted by austin-steve View Post
In other words, your decision to end your lease early ought not cost the landlord a penny, nor any uncompensated effort.
It didn't cost him a dime. I did all the footwork finding someone new. I kept up the house. In fact, I moved out with it in better shape than I received it. I showed the house. I did everything except sign the new lease agreement for the landlord.

Quote:
Originally Posted by austin-steve View Post
That said, it sounds like you accomplished the end result of most of that, less the reletting fee, which compensates the landlord not only for the leasing of the property, but also for the inherent risk and time involved any time a tenant turnover occurs. In this case, the time includes multiple conversations and emails back and forth with you, which would not have happened if you simply stayed and paid as agreed. The risk includes the fact that you're going to now apparently sue him over the deposit, and the possibility that the new tenant eventually doesn't work out either.
I DONT want to sue him. I just want what is fairly back of my deposit- I don't even want the whole thing! I just want him to give back what is OWED to me- nothing more. That was not his money to start with. Yes, he can take some out for deductions, but I never got an itemized education list. I only got an email saying you aren't getting any back, which, as I understand it, is unlawful as well.

Quote:
Originally Posted by austin-steve View Post
In order to receive your deposit back, you'll have to provide the court with evidence that you provided a proper written 30 day notice, satisfactorily completed all obligations under your lease agreement, returned the keys to the landlord, provided a written forwarding address, and left owing no money.
Well, I have emails back and forth with us discussing me leaving, I provided him a written forwarding address multiple times and have emails for that, I completed my obligations except far staying there a year, and I could not return the keys to the landlord since he lives in Alaska.

Quote:
Originally Posted by austin-steve View Post
If any of that didn't happen, the landlord has no obligation to return your deposit. If all of that did happen, the landlord must explain to the court how the deposit was used up and itemize the deductions. He can't simply "keep" it. Your lease specifies a reletting fee but isn't specific about an amount or whether it is owed even if the you find a replacement tenant for him. The judge would sort that out and decide, and you can't be certain how that will go because Texas JP Court justices are generally unpredictable in matters of subjective interpretation of vague lease terms.
Well he simply is 'keeping' it which is where my issues come from. No itemized letter of deductions at all. 40 days later I get an email saying sorry Charlie and that is all.

Quote:
Originally Posted by austin-steve View Post
Bottom line, you are not a 100% innocent victim. You alone set into motion the events that brought you to this point, not the landlord. At least own that much of the situation. You could have avoided all of this entirely by not breaking your lease.
Never claimed to be or said I was. I know I got out of my lease early which, yes was my decision. But telling me your going to return my deposit, then you are 'praying' about my deposit, then saying sorry all together is plain wrong. I know you are a landlord and you are going to side with him, but if you do the same type of things to your tenants, then I would consider you a dead beat also. Take 5 seconds to see if from the tenants side who every step of the way consulted you in the process and made sure you were financially not at risk.

Quote:
Originally Posted by austin-steve View Post
On the other hand, it sounds as if the landlord may not have a solid answer as to how the deposit is used up, and it sounds like you may have accomplished your exit from the property in a way that did not cause him lost rent.
He doesn't which is the part that frustrates me the most.

Quote:
Originally Posted by austin-steve View Post
Now you just have to decide if you want to punish him by dragging him into court, which he may well deserve, or if your time and energy is better spend on more positive life endeavors.
I am not trying to punish him. I don't want to go to court. If I do, I don't want to take more than I am owed, but I do want him to live up to his obligations which he hasn't.

So yes, I made a mistake by not getting in writing. Yes I decided to move out early. But, I am not the only person at fault here Steve.
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Old 05-15-2009, 07:13 PM
 
Location: SW Austin & Wimberley
6,208 posts, read 16,036,821 times
Reputation: 5288
Quote:
So yes, I made a mistake by not getting in writing. Yes I decided to move out early. But, I am not the only person at fault here Steve.
Yes, but you are the one who hit the "start" button on the chain of events. I've never seen a landlord sue a tenant for finishing the lease and doing everything they were supposed to, but I've seen a lot of tenants sue landlords over things that started with a broken lease. Yours is a textbook case.

Don't want these problems? .. then don't break your lease and move early. If you do break your lease, get all agreements in writing. If you fail to get everything in writing, accept the consequences instead of suing the landlord. Consider it a seminar fee and move on with life.

I'll just add that I've evicted about 80 tenants over the years and thus have sat while waiting my turn and observed a LOT of landlord/tenant disputes in JP Court, which in a sadistic sort of way I enjoy, but also find very educational and interesting. Most are just like yours. Both sides screwed up and one side wants the other to pay 100% of the cost of their mutual boneheadedness. More often than not, the Judge gets so confused over the he said she said, they call it a wash and nobody wins or loses, both sides pay their own fees, and that's the end of it. I give your situation a 50% chance of that outcome.

Go forth in righteous indignation if you must, but don't be surprised if it all turns out to be a big waste of time.

Steve
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