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Yolanda
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Posted: Sat Apr 12th, 2008 10:42 am |
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logicaldog wrote: Please actually read the post before you give any "advice"-the only good advice here is from OH. otherwise forget it.
I am sorry that you have the attitude that you do. You wrote asking for advice and you received excellent feedback. You may not agree with the advice given, and that is okay. You simply take what you can use according to law, and proceed accordingly. Most of us are experienced LL's and share our experiences with others. As you state, your case is "open and shut, but is a nuisance". The "nuisance" is what drove you here. We responded. It sounds like you have taken care of your problem. I am sure new ones will arise. Good luck to you. Last edited on Sat Apr 12th, 2008 01:29 pm by Yolanda
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logicaldog
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Posted: Sat Apr 12th, 2008 05:44 am |
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I talked to a landlord lawyer and landlord tenant here. In Virginia they dont use holding agreements because the greater liability is given in the lease where the tenant can be held accountable for the entire term of the lease-if it doesnt rent. My case is open and shut but is a nuisance. The lawyer wants to move the case to general district and countersue for damages, I dont think I will. This is not complicated-the house was vacant for a month-the tenant gave me 7 days notice that he didnt want it, I MITIGATED and can prove it becuase it was rerented for occupancy the 1st of the following month. I lived in CA for 10 years and I know it is tenant, not landlord friendly, the rest of the world doesnt follow that model - and maybe it is more like 30 years for me.
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Terry in CA
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Posted: Sat Apr 12th, 2008 05:10 am |
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It seems perhaps you did not understand the advice re: a holding deposit/fee agreement and why one is needed to protect you and the applicant/tenant. If you've been at this 25 years (I've been at this over 30) I am very surprised you have not utilized one.
While the unit was vacant for a month, you CHOSE to allow it to be by agreeing to "hold" the unit for over a month for the new tenants. So if they HAD performed, you would not have gotten any RENT until April 1st, right? Then again, you CHOSE to hold the unit for the replacement tenants until May 1st which yes I missed the first time. That being said...the outcome, especially because they are suing you and allege a reason for non rental, depends on what documentation you can produce in court.
Since they allege reasons for not renting the unit and they are suing you, I would suggest you be open to advice given from others so that perhaps you will not find yourself in this same situation ever again.
Again, the wording in your lease is also key to what might happen in court.
You should always use a holding fee or holding deposit agreement whenever you "hold" a unit for any applicant/tenant. And that agreement needs to fully comply with YOUR state laws.
Lastly, the ability to collect a holding FEE or holding DEPOSIT and the rules / laws that pertain to doing such and what "losses" you can claim DO VARY by state. That is the other point I was trying to make here.
LL's need to know their state laws thoroughly.
Last edited on Sat Apr 12th, 2008 05:16 am by Terry in CA
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logicaldog
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Posted: Thu Apr 10th, 2008 08:03 am |
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Please actually read the post before you give any "advice"-the only good advice here is from OH. otherwise forget it.
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Yolanda
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Posted: Wed Apr 9th, 2008 08:15 pm |
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I would wait until you are served with court papers. They may not follow through. As I always say and it is my personal opinion, when going to court it is always subject to interpretation. If you do go to court, just make sure you have your lease and all pertinent documentation to support your case. Make sure you do research for your state. If you do not go to court, I highly recommend you take the advice of both OH LL and Terry in CA and use what you can to make your landlording easier. Even though you will be out one month's rent, I would calculate whether or not it is worth the time and effort to take the tenant's to court. Good luck to you!
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logicaldog
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Posted: Mon Apr 7th, 2008 09:48 am |
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Terry- you clearly didnt read my post at all- the house is vacant for one month-the former tenants weren't hostile-lived there for five years without ONE complaint or concern, I renrented it IMMEDIATELY, it is a highly sought after area-Olde Town Alexandria, thats why having rented the house, then sat on it for a month, then deciding not to rent is ridiculous. I have been a landlord for 25 years, this has never happened.
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OH landlord
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Posted: Sun Apr 6th, 2008 05:19 pm |
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You will have to check with the clerk of court. Here, either owner could go to court regardless of who signed the lease. As long as one of the owners was the person at court, it wouldn't make a difference. But I'd double check with the clerk because every state is different on this.
Terry, the poster did say she already has secured new tenants, but they will not take possession until May 1st. Thus she will be out one month of rent (April 1-30), plus advertising fees.
To the poster, Terry is correct in having a holding agreement. It is applicable to every state. If you will hold a property for more than a week or two, you should have a specific agreement to hold the property. Mine says the holding fee (which later converts to the deposit upon taking possessin) is NON-REFUNDABLE. I take a holding fee, not a security deposit if they will not move in immediately. This way if they back out before taking possession, the agreement clearly states it is not refunable.
I never show a unit with hostile tenants in the unit. However, if they have been good tenants, most will have no problem with me showing the unit before they leave.
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Terry in CA
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Posted: Sun Apr 6th, 2008 05:10 pm |
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No, they are "contract" related. If the contract officially is "executed" upon receipt of all move in money and keys being handed over (which represents possession being given), in MANY states the lease may not hold.
And in every state, a LL should sign a very clear holding deposit (or fee) agreement if they hold the unit for any time for tenants before taking full amount of move in money and handing over keys.
And in still many other states, you must account for actual "losses"..that is NOT just CA.
My overall suggestion was to KNOW YOUR STATE laws before proceeding.
Also the wording of your lease is key. We can't see/read it from here.
Honestly, since you thus far have only been shorted five days rent, I don't understand why you are not putting more time into re-renting the unit instead of the "court" process over someone backing out. AND fully checking the unit for any evidence of water intrusion, etc.
I don't ever show a unit while tenants are still living there...as often times they can disrupt the process of closing a deal with new tenants.
Last edited on Sun Apr 6th, 2008 05:11 pm by Terry in CA
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logicaldog
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Posted: Sun Apr 6th, 2008 02:11 pm |
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Okay update, I sent the statement certifed return receipt requested, I send a copy of the lease and the letter to the court to be attached to the case file, I will also bring to court-the lease, the former lease, the new lease....pictures of basement....now the tenants (the ones that backed out) are saying they saw water. I have never seen water, the other tenants NEVER said one word. Another question is this-I have lost enough time from work for these people-had to take a week off to rerent becaue of them. The house is jointly owned with my husband, he's a teacher and is easier to get a day off, can I send him? Do I need a power of attorney or something? He didnt sign the lease simply because he wasnt there when we executed the lease. thanks OH
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logicaldog
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Posted: Sat Apr 5th, 2008 12:22 pm |
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Your comments are very CA related and dont work for other states.
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logicaldog
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Posted: Sat Apr 5th, 2008 12:20 pm |
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thanks so much, very helpful. Jan
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Terry in CA
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Posted: Sat Apr 5th, 2008 08:52 am |
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This is often STATE LAW specific and for the states that provide for you only to retain the portion that represents your ACTUAL LIQUIDATED LOSSES, you may be only to retain rent per day from April 1st to whenever you get the unit re-rented AND you must show true effort to do so. Please check YOUR state laws.
As a rule, never accept a deposit to hold a unit for that long without signing a very clear holding deposit. Although you have the signed lease, since the "performance date" was April 1st, you were not going to start collecting income until that date.
In other states perhaps the 30 days MIGHT work but not likely since they never took possession (keys never were handed over and full up front money not paid). What you had instead was a holding deposit plus a signed lease committment.
P.S. STRONGLY advise against using two year leases for residential (then again I don't like leases at all..but over one year in many states are frowned upon by courts, have additional requirements/restrictions, etc).
Last edited on Sat Apr 5th, 2008 08:53 am by Terry in CA
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OH landlord
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Posted: Sat Apr 5th, 2008 02:57 am |
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First thing you need to do is to get them a written deposit statement which shows exactly why you kept their deposit and send it to them at their forwarding address. He notified you on Easter Sunday that they would not be living there, I'd use that day as the day they have given up possession to the house. You have 45 days per VA law to get this statement to them.
I would show that they notified you March 30th of their intention to vacate. They automatically owe rent for 30 days after this notice of intent to vacate, so show that you deducted the rent for April (for their 30 day notice) from their deposit. Also subtract any advertising, agent fees, or other cost you incurred in finding the new tenants that will take over May 1st. Return the rest to them if any. Send them this statement by certified mail, return receipt requested. Make sure they receive it by May 14th. (Send it as soon as possible so they can recieve it before court.) Of course, keep a copy of this for court.
Backing out of a legal contract without proof of uninhabitability won't hold up in court. All they have is hearsay from former tenants (who probably won't go to court to testify for these people). They can't admit 3rd party testimony as proof ("Well, the last tenants told me..." just won't hold up.) You can testify that the last tenants never reported a wet basement or asked for any repairs to this effect. Go take some dated photos of the basement showing it is dry so you can show them in court. You also should take the signed lease to show that you had a contract with them to rent the unit. Some tenants just don't believe that a lease is a legally binding contract. You have every right to keep a month of rent from his deposit along with advertising fees. If your costs exceed the deposit, countersue for the difference.
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logicaldog
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Posted: Fri Apr 4th, 2008 04:03 pm |
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I had a yuppie (probably the worst) couple sign a two year lease on Feb 23rd to take possession on April 1st. I didn't hear anything from them, went on vacation, came back (house was, of course, off the market all that time) and checked my email on Easter Sunday and he told me that he wasn't taking the house and felt entitled to his security deposit back, in fact he demanded it. This couple has PLENTY of money and was checked out credit wise. Apparently they have been hanging out at the house questioning the current tenants for a month and have some hearsay (gossip). I think they just got cold feet and found a different house (they have a different address). He says that the current tenant told him that there was water in the basement. This is the first time I have heard this although I wouldnt be surprised, most houses flood in this area from time to time, but the former tenants lived there for four peaceful years and NEVER complained about anything. I set about re-renting the property immediately (I cancelled a business trip,etc. to do so), I told him, as it states in the lease (It is a realtor lease-Weichert here in Northern VA), he is liable for the full term of the lease payments but that it is encumbant upon me to rerent it as soon as possible. I found new tenants who will take possession on May 1st (which is very reasonable), and the house will be vacant with no one paying rent for a full month. I did not return his security deposit and explained that they pay for this months lost rent.Got a notice today he is suing me in small claims court. I am extremely concerned with what can happen in court (ANYTHING!!!)> Even tho he signed a legally binding two year lease he is going to say that there is a wet basement. I visited the property and see no signs of this and the former tenants kept nice furniture and area rugs down there and they weren't wet. I HATE to go to court. (Seems like there has been alot of it lately with people just walking off). The house is owned jointly with my husband, can I send him-he is much more level headed, but he isn't listed on the lease. I am sick of these entitled yuppies!!! They can be bank presidents and they still are soooo selfish and self absorbed. The worst. Help!
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