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ernesto67
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Posted: Sat May 10th, 2008 10:50 am |
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Here is the update:
I spoke with a lawyer, and because the living situation was unique in that I did not have exclusive rights to the property, the lease would fall under the statutes that govern a "shared facility."
The laws regarding contracts/leases for shared facilities state that the tenant can break the lease and must follow any language included in the lease. My lease very clearly stated a paragraph regarding a lease break - tenant must notifiy within 30 days and provide a lease break penalty of 1/2 month rent.
The lawyer helped me draft a letter citing the various laws that affect this situation, and I sent it certified regisitered return receipt requested mail, with the keys. The landlord received that on May 1. I informed the landlord in the letter that she could deduct the damages owed her from the $1300 security deposit that she had, and that she was to return the remaining amount plus interest to me within 30 days.
I also included a check to cover the oil I used during this lease term, which totalled over $2000. I typically paid a lot less for oil, so I am thinking that when all is said and done, I overpaid her for oil.
She now has in her possession $2000 to cover oil (and the tank is currently 3/4 full, so I paid for two tanks and only used 1.25 tanks); $1300 in security deposit, plus $375 for a lease break fee.
She replied (via email) that I cannot break the lease because it is a fixed term agreement, and is apparently choosing to ignore the lease break clause that she included in the document.
Two days later she replied with another email stating that she had no record of a $1300 security deposit, and demanded that I send her a photocopy of the cancelled check.
For the record, I do have a copy of the security deposit on my bank statement, but I do not feel it is my responsibilty to provide her with documentation that she was legally required to keep.
I initially went into this lease break situation wanting to make it as easy on both of us as possible, and she is claiming that I am now behind two months rent and that I still owe for the remainder of the term (through August). The lawyer told me to just law low and that if this woman had any clue, she would walk away and rerent the property and realize that she has a rather large sum or money in her pocket.
My fear is that she will attempt to sue me for the two month's rent that would be covered by the "missing" security deposit. What I am unsure of now is, does she actually have no record of the deposit? If that is the case, it is in violation of the state law (as is common in most states, the deposit has to be in an interest bearing account and a written record must be provided and the deposit must be returned with interest following the deduction of damages). I never intended to receive the deposit back, as I was the one who initially broke the lease. Now I am wondering how to proceed.
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LandlordLaura
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Posted: Mon Apr 21st, 2008 05:18 pm |
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Please let us know what you find out by consulting the Landlord Tenant Attorney. State/County/City laws can be very different from area to area and the local experienced Attorney will be your best source of valid information. Be sure you take your Lease, past oil bills payment receipts, your written move-out notification that you provided to the Landlord and a copies of cancelled checks that show the amount of security deposit and the "lease break fee" that you have already paid to the Landlord. Providing proof to the Attorney will help clarify your situation.
Off the top of my head I, personally, would want the following issues clarified by the experienced Landlord/Tenant Attorney:
What is the legal proceedure the Landlord will have to follow in regard to the return of your security deposit? Because you have already pre-paid the lease-break fee required, find out if the Landlord will be prevented from retaining any portion of your security deposit due to the lease break situation itself*. (*This is not to say that the the Landlord cannot withhold for reasons other than the lease-break situation...)
A clarification of what, specifically, the Landlord's is required to do to "mitigate damages". (Although, again, a lease-break fee would generally limit your liability for the full term of the Lease...)
Whether the Landlord should have credited you with "rent" for the days she lived in the property during the term of your Tenancy due to the fact that you were still paying full rent for only a partial, limited use of the property. Do you have any proof of which particular days the Landlord stayed, ie. past notices/communications?
How is the oil expense to be "legally" calculated? Does the Landlord have a requirement to demonstrate his/her costs for the oil before calculating the charges attributed to your use of it. I, myself, do not own property that is heated by oil and I may be wrong here, but, in my opinion, the Landlord should charge you (be reimbursed) for oil at the cost that he/she paid when the oil was purchased for the unit. Any "future" cost of oil would be charged to the new Tenants who use the (probably more expensive) oil.
When you return possession of the property to the Landlord, be sure that you videotape and/or photograph the condition of the property, photograph the amount of oil left in the tank, get a written receipt for the keys (or other necessary items) being returned and, if possible, do a move-out inspection with the Landlord so that you have proof of all of these things for your records.
Good luck on getting the situation worked out. I hope all goes very well for you. Keep us posted...
Last edited on Mon Apr 21st, 2008 05:20 pm by LandlordLaura
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ernesto67
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Posted: Mon Apr 21st, 2008 09:02 am |
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Thank you Laura for your help.
I checked the laws for the State of NH and they clearly state that my landlord is required to mitigate damages, and that the lessee has the same rights to break a lease with appropriate notice as outlined in the language of the lease as the lessor.
I have contacted a lawyer and am waiting to meet with him. There were no specific clauses in the lease about owner occupancy. One paragraph states:
ACCESS – Owner recognizes that Tenant has a right to privacy and wishes to observe that right. At certain times, however, Owner, employees or agents of Owner, may have to gain access to the dwelling for purposes of repairs, inspection, or maintenance. Owner will notify Tenant as to when this will be happening. In emergencies, there will be no notice.
OWNER OCCUPANCY – Owner will notify Tenant as to dates of occupancy. Notification will be by phone call/email/regular mail to Tenant.
When I signed the lease I was not aware that she would occupy the dwelling for 6-8 weeks of the year. She never specified any dates or lengths of time. I typically would get an email stating she was flying in either the next day or that night to stay, or she woud show up unannounced. Whenever I asked her how long she was planning on staying, she was evasive and said she wasn't sure and "why do I need to know?"
Regarding the oil, when I moved in, the tank was full. I was very frugal about oil usage and keeping the heat moderated during the first winter that I was there because I thought I was being billed for the amount of oil actually used. At the end of the first year lease term (September) she told me I owed $1800 for oil, which I paid. I signed a lease for a second year, and at the end of that term she said I owed $1200, and I gave her the money for that in September.
I did not know that I was paying for oil that was prebought at a locked in rate, she only told me of this when I sent her the letter with my intent to vacate.
This was the language in the lease concerning oil:
UTILITIES/SERVICES -Tenant agrees to pay all utilities and services. Utilities/Services be in the name of the Tenant where appropriate. Payment for oil is to be paid the last two months rent of the present lease.
I am more than willing to pay for the oil that I used, I intend to call the oil company, find out how much was delivered during the last winter, and the current rate, then check the tank to see how much is currently in there, and determine how much I owe her. She wants to call the oil company, find out the prebuy rate for the 2008-2009 winter season, and charge me that price for all of the next year lease term; however, she claims that price is not determined until late summer or early fall so that she cannot charge me now for the next year's oil.
I never once saw an oil bill or knew how much I was using other than checking the tank regularly.
Another frustrating thing regarding the oil is that I tend to turn it down very low when I am at work during the day, low at night, and use it sparingly when I am home, as I really cannot afford outrageous heating bills. When she comes to live there, she turns the heat on much higher and keeps it on at all times.
I want to end this on as amicable a note as possible, and I thought that by giving her 60 days notice, the fee for breaking the lease, and letter explaining why I had to break the lease would suffice. She has a security deposit and 'last months rent' (which in NH is considered one security deposit) of $1300, which she has had since August of 2005, when I first signed a lease. Rent was $650 a month when I moved in and when we signed the new lease for this year she raised it to $750 without ever discussing it with me. She had been staying there for 3 weeks in Aug and Sept, the previous lease had expired on July 31, and when I received the new lease to sign a day before she was leaving to go home, I saw the new rent price. I checked NH laws which state that a tenant has to be given in writing a 30 day notice of a rent increase if there is no lease involved. Since I was signing a new lease, I was not sure at the time if I had rights to refuse the increase and opt to find another place. I was rather irritated that she never bothered to have a converstation with me about her decision to increase rent, and I felt trapped in that situation.
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LandlordLaura
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Posted: Sun Apr 20th, 2008 11:00 pm |
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I would suggest that you locate a local Tenant's Association and discuss your situation with them in detail. If you cannot locate a local Tenant's Association, try calling a HUD office in your immediate area to ask for a reference and/or speak with an experienced Landlord/Tenant Attorney. If you have not already read through the Landlord Tenant Laws for the State/County/City where the rental property is located, try pulling them up online and reading through them thoroughly to see how the issues you mentioned are legally addressed.
In general, if the Lease Agreement does not specifically allow for the Owner/Landlord's occupation of the property, he/she does not have any right to use the property and/or invite others to enter your property during the term of your Lease. Generally, if you already gave the Owner a 60 day notice that you are moving out AND your Lease contains a penalty clause for breaking the Lease AND you already paid the penalty for breaking the Lease, you have given the Owner everything required in order to allow him/her to re-rent the property and mitigate his/her damages. In general, many State Landlord Tenant Laws require the Owner/Landlord to mitigate damages by finding a replacement Tenant when a Lease-break situation occurs. If the Owner/Landlord does not want the property to be unoccupied, then he/she had better find a Tenant to occupy the property.
A Tenant is generally not responsible for FUTURE oil usage. If a Lease states that a Tenant is to pay utilities, per the local Laws, the usage shoud be very clearly determined and directly connected to the Tenant's useage. What, exactly, does your Lease say about how the oil expenses are to be paid? You mentioned that you thought you were paying for the oil you used. By what means were you determining that? How have you been billed in the past and what is the past history of billing? For example, you stated that you have lived in the property for 3 years. When were you billed for the first year of oil that you used? If you are unsure, ask the Landlord for proof of payment to date...
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ernesto67
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Posted: Fri Apr 11th, 2008 04:58 pm |
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I rent a single family home. My lease is a one year term, set to expire in August.
My landlord occasionally occupies the residence while I am there. I have been there for nearly 3 years; when I first moved in she explained that she comes home a few times a year to check on the property and visit family. She said she would notify me of the dates of her occupying the residence.
The first time she entered the premises after I moved in was completely unannounced - she literally walked into the house one morning while I was getting ready for work. She stayed for two and a half weeks.
A few months later she gave me 1 week's notice of her arrival, she then stayed for 6 weeks. She never gives me a date of departure, so I never know how long she will be there for.
This type of pattern has continued throughout the 2.5 years I have lived there.
My rent is not reduced at all when she is there, and she does not pay for any of the utilities.
Her most recent stay at the house resulted in her having people over to the house while I was away. She asked me to move some of my belongings out of the living room to accomodate her gathering. I did, and then left for the week to stay with a friend, as I find it difficult to live in this situation. She then proceeded to take every single remaining item of mine out of it's place in various rooms of the house (kitchen, bathroom, living room, dining room) and throw it onto my bed and the floor of my bedroom and shut the door.
I came home a week later to discover all of this in my room - I was not able to even open the door all the way and I spent several hours moving my belongings back out of my room.
I recently decided to make a career change that requires relocation, and I am also engaged and moving in with my fiance. I wrote a very nice letter to her asking to terminate the lease and gave her the option of continuing through the end of May ( the letter was sent in March). I included in the letter a check for the penalty cost of breaking the lease as it was stated in the terms of the lease. I stated that I was willing to stay through May in order to not inconvenience her and allow her time to find another tenant.
She is refusing to let me break the lease and is requiring me to pay rent through the end date of Aug 31, as well as any damages incurred on the property. She also wants me to pay to fill the oil tank for the 2008-09 season (she pre buys the oil - I was not aware of that, I thought I was paying for the oil I used), and she is demanding that I occupy the residence as she does not want it unoccupied.
I am willing to pay the damages to the property via security deposit, and I understand that I am responsible for rent through the end of the lease, however, given her actions of moving into the residence repeatedly, does that action not nullify the existing lease? The lease states that there is only one occupant allowed, yet she frequently lives there with me for usually a total of 2-3 months of the year combined. Does this also not violate the law that states that tenants have "exclusive right to the property while in residence" and "right to quiet and peaceful enjoyment of the property"
Advice?
Oh, this is in NH.
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