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broken lease

Discussion in 'Other Residential Landlord & Tenant Issues' started by lynnjohn, Apr 2, 2011.

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  1. lynnjohn

    lynnjohn Law Topic Starter New Member

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    a tenant broke a year lease (after 4 months) in the state of california and then moved to texas. I re-leased but it took three months and cost $7100 in missed rent and listing fees. Where do I file the smalls claims case? If I can catch the tenant in california should I file it there or do I need to file in their new state even thought the contract was signed in california and house leased was in california.. What is my best bet to recover the loses ?
     
  2. jacksgal

    jacksgal Super Moderator

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    How do you plan to serve the defendant if he/she is in another state?
     
  3. army judge

    army judge Super Moderator

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    You can file in California.
    If you do, and he/she/it is in Texas, you can't serve him/her/it.
    A California court has no power to compel a person in another state to appear and answer for small claim matters.

    You could file in Texas. That, however, would cost you more than you potentially stand to collect.

    You've been outfoxed. The deadbeat varmint has scurried away and is protected in The Republic of Texas.
     
  4. lynnjohn

    lynnjohn Law Topic Starter New Member

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    I know for sure a date that they will be in ca and I know where they will be... If i can serve them in ca would that be enough to get a judgement to attach to their credit so I can get a collections agency to try to collect? Or would I be better off just filing in small claims in texas?

    Army Judge..I didn't think filing a small claims case cost very much ? Am I missing some costs involved aside from having to show up for the case in texas and a small filing fee plus a fee for severing ?
     
    Last edited: Apr 2, 2011
  5. army judge

    army judge Super Moderator

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    Your biggest expense would be your travel and lodging costs associated with your trips to Texas.

    Be advised, in Texas when you file small claims, it is done in JP Court. You can be required to serve the defendant in the county, place, and precinct where they reside.




    This could be three, maybe four, or more trips to Texas, if your defendant is savvy and wise to the system.



    You can try and serve your mark in California.

    But, your judgment would have to be domesticated to Texas. Texas is a very debtor friendly state! Many of a defendant's assets are untouchable. They are protected constitutionally.


    Do you think this deadbeat has anything other than a paycheck and some personal belongings? As I said, small claims is often a big disappointment to plaintiffs!!!
     
    Last edited: Apr 2, 2011
  6. mightymoose

    mightymoose Moderator

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    Filing in Texas won't cost you much at all... but you would have to get yourself there, possibly more than once, and that cost adds up fast. Add the possibility that your tenant may never pay up, even with a judgment, and you just add to your losses.

    Yes, if you can manage to time it right to serve the papers while the person is in California then you may be ok. You will be able to handle everything locally, and when the tenant fails to appear on the court date you might be able to get a default judgment.
     
  7. jacksgal

    jacksgal Super Moderator

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    Just add no matter which court winning is not the end of things if you win. If you win and they fail to pay you then will need to return to court to get garnishment or whatever forceful means is available to collect. You may this whole thing costly with no return. I believe Army Judge has already warnned you that collection on this is probably unlikely
     
  8. lynnjohn

    lynnjohn Law Topic Starter New Member

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    Well.. When my tenant rented from me she had perfect credit and she does hold a good job in tx I have already worked that out.
    I have a bit of time on my hands and I feel what my tenant did was very dishonest and unfair. Renting at the beginning of the summer (our holiday season on the water) and once the holiday season was over she broke the lease lying about the reason for ending the lease . Summer only rentals go for triple the price as year round rentals. In my area it is very hard to re-rent after september. I suggested they find a new renter , I even offered she take on another roommate to help their situation but she wasn't interested (of corse because she was lying about the reason for ending the lease) and didn't even want to try to find a replacement. She said and her and her boy friend broke up and she could afford the rent any longer when I find out latter they were actually moving to texas and getting married. I knew it was all fishy because I knew what she was making per month from her pay subs she submitted to lease and I knew that it was more than enough to cove the rent and why she was the only one on the lease. I know the reason dosen't really matter in the eyes of the court but it does matter to me.

    At this point even if it costs me a little and I don't recover anything I would feel better knowing that the next time she rents there will be a hint to the landlord that she may not be a great tenant even if it's just a ding to her credit.
    When I accepted her as a tenant I had three other possible tenants but she had the best credit which was excellent and was a School Principal..and of corse seemed so lovely..how could I go wrong..I thought. So at this point if I can keep her from pulling this little trick of hers with someone else.. and her realizing that you can't get away with things like this with no consequences..I did keep her deposit but I'm still -$7100 and with bruised ego for having such a bad judge of character...

    If I have her severed in ca for small claims in ca is that enough to get the case going in ca and get the judgement against her?
    I'm afraid the judge might throw it out since she is now living in tx. Or do I just do it in tx but will they up hold a contract in Ca?
    thank you for all of your info and help...
     
  9. army judge

    army judge Super Moderator

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    A landlord must take certain affirmative steps before withholding a tenant's security deposit.

    This website might be useful to you.

    http://www.dca.ca.gov/publications/landlordbook/sec-deposit.shtml

    The most common disagreement between landlords and tenants is over the refund of the tenant's security deposit after the tenant has moved out of the rental unit. California law therefore specifies procedures that the landlord must follow for refunding, using, and accounting for tenants' security deposits.

    California law specifically allows the landlord to use a tenant's security deposit for four purposes:

    For unpaid rent;
    For cleaning the rental unit when the tenant moves out, but only to make the unit as clean as it was when the tenant first moved in;214
    For repair of damages, other than normal wear and tear, caused by the tenant or the tenant's guests; and
    If the lease or rental agreement allows it, for the cost of restoring or replacing furniture, furnishings, or other items of personal property (including keys), other than because of normal wear and tear.215
    A landlord can withhold from the security deposit only those amounts that are reasonably necessary for these purposes. The security deposit cannot be used for repairing defects that existed in the unit before you moved in, for conditions caused by normal wear and tear during your tenancy or previous tenancies, or for cleaning a rental unit that is as clean as it was when you moved in.216 A rental agreement or lease can never state that a security deposit is "nonrefundable."217

    Under California law, 21 calendar days or less after you move, your landlord must either:

    Send you a full refund of your security deposit, or
    Mail or personally deliver to you an itemized statement that lists the amounts of any deductions from your security deposit and the reasons for the deductions, together with a refund of any amounts not deducted.218
    The landlord also must send you copies of receipts for the charges that the landlord incurred to repair or clean the rental unit and that the landlord deducted from your security deposit. The landlord must include the receipts with the itemized statement.219 The landlord must follow these rules:

    If the landlord or the landlord's employees did the work - The itemized statement must describe the work performed, including the time spent and the hourly rate charged. The hourly rate must be reasonable.
    If another person or business did the work - The landlord must provide you copies of the person's or business' invoice or receipt. The landlord must provide the person's or business' name, address, and telephone number on the invoice or receipt, or in the itemized statement.
    If the landlord deducted for materials or supplies - The landlord must provide you a copy of the invoice or receipt. If the item used to repair or clean the unit is something that the landlord purchases regularly or in bulk, the landlord must reasonably document the item's cost (for example, by an invoice, a receipt or a vendor's price list)220
    If the landlord made a good faith estimate of charges - The landlord is allowed to make a good faith estimate of charges and include the estimate in the itemized statement in two situations: (1) the repair is being done by the landlord or an employee and cannot reasonably be completed within the 21 days, or (2) services or materials are being supplied by another person or business and the landlord does not have the invoice or receipt within the 21 days. In either situation, the landlord may deduct the estimated amount from your security deposit. In situation (2), the landlord must include the name, address and telephone number of the person or business that is supplying the services or materials. Within 14 calendar days after completing the repairs or receiving the invoice or receipt, the landlord must mail or deliver to you a correct itemized statement, the invoices and receipts described above, and any refund to which you are entitled.221
    The landlord must send the itemized statement, copies of invoices or receipts, and any good faith estimate to you at the address that you provide. If you do not provide an address, the landlord must send these documents to the address of the rental unit that you moved from.222

    The landlord is not required to send you copies of invoices or receipts, or a good faith estimate, if the repairs or cleaning cost less than $126 or if you waive your right to receive them.223 If you wish to waive the right to receive these documents, you may do so by signing a waiver when the landlord gives you a 30-day or 60-day notice to end the tenancy (see Landlord's notice to end a periodic tenancy), when you give the landlord a 30-day notice to end the tenancy (see Terminations and Evictions), when the landlord servers you with a three-day note to end the tenancy (see Three-day notice) or after any of these notices. If you have a lease, you may waive this right no earlier than 60 days before the lease ends. The waiver form given to you by the landlord must include the text of the security deposit law that describes your right to receive receipts.246

    What if the repairs cost less than $126 or you waived your right to receive copies of invoices, receipts and any good faith estimate? The landlord still must send you an itemized statement 21 calendar days or less after you move, along with a refund of any amounts not deducted from your security deposit. When you receive the itemized statement, you may decide that you want copies of the landlord's invoices, receipts and any good faith estimate. You may request copies of these documents from the landlord within 14 calendar days after you receive the itemized statement. It's best to make this request both orally and in writing. Keep a copy of your letter or e-mail. The landlord must send you copies of invoices, receipts and any good faith estimate within 14 calendar days after he or she receives your request.247

    What should you do if you believe that your landlord has made an improper deduction from your security deposit, or if the landlord keeps all of the deposit without good reason?

    Tell the landlord or the landlord's agent why you believe that the deductions from your security deposit are improper. Immediately ask the landlord or agent for a refund of the amount that you believe you're entitled to get back. You can make this request by phone or e-mail, but you should follow it up with a letter. The letter should state the reasons that you believe the deductions are improper, and the amount that you feel should be returned to you. Keep a copy of your letter. It's a good idea to send the letter to the landlord or agent by certified mail and to request a return receipt to prove that the landlord or agent received the letter. Or, you can deliver the letter personally and ask the landlord or agent to acknowledge receipt by signing and dating your copy of the letter.

    If the landlord or agent still doesn't send you the refund that you think you're entitled to receive, try to work out a reasonable compromise that is acceptable to both of you. You also can suggest that the dispute be mediated by a neutral third person or agency (Getting Help From a Third Party.) You can contact one of the agencies listed Appendix 3 for assistance. If none of this works, you may want to take legal action (see below).

    What if the landlord doesn't provide a full refund, or a statement of deductions and a refund of amounts not deducted, by the end of the 21-day period as required by law? According to a California Supreme Court decision, the landlord loses the right to keep any of the security deposit and must return the entire deposit to you.248 Even so, it may be difficult for you to get your entire deposit back from the landlord.249 You should contact one of the agencies listed in Getting Help From a Third Party for advice.

    Practically speaking, you have two options if the landlord doesn't honor the 21-day rule. The first step for both is to call and write the landlord to request a refund of your entire security deposit. You can also suggest that the dispute be mediated. If the landlord presents good reasons for keeping some or all of your deposit for a purpose listed above, it's probably wise to enter into a reasonable compromise with the landlord. This is because the other option is difficult and the outcome may be uncertain.

    The other option is to sue the landlord in small claims court for return of your security deposit. However, the landlord then can file a counterclaim against you. In the counterclaim, the landlord can assert a right to make deductions from the deposit, for example, for unpaid rent or for damage to the rental that the landlord alleges that you caused. Each party then will have to argue in court why he or she is entitled to the deposit.250
     
  10. lynnjohn

    lynnjohn Law Topic Starter New Member

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    Army judge:
    I kept the deposit for unpaid rent since the tenant is a one year lease until june of this year. I believe this is my right to do the tenant didn't even have a problem with this. But please let me know if some how I'm wrong in doing so.

    I am now only trying to recover the lost rent & expenses until I re-rented the house which took three months to do because it was an out of season rental at the time the tenant decided to break the lease. But from what I'm learning on this forum it will be very hard to collect any money from the tenant in which case I will feel satisfied if I only at the least impact her credit so some another landlord won't have her pull the same shenanigans on them.
    So what is the best way to to this ?

    as stated in the post... they have move to tx but I know I can catch them in ca for a day or two.also what are the rules about serving someone in ca. Can it be done anytime any where ? or are there certain situations that are off limits and would be considered invalid if served at like for example church?
     
  11. jacksgal

    jacksgal Super Moderator

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    You seem dead set on suing. That is your call although there will be cost you will not likely recover and victory will not promise you get anything back. go to courthouse file law suit or have your Attorney deal with this. then you or your Attorney can find a process server to serve defendant. Where this takes place will depend on location of defendant. Serving defendant while still in CA is easist. Keep in mind the defendant must be served in manner local laws state. If the defendant is bright he/she can avoid service if smart enough. Without service and proof there of the case cannot continue. Then you will be forced to attempt to serve defendant in TX.
     
  12. army judge

    army judge Super Moderator

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    In your state, you must provide the tenant with a list of reasons as to why you retain his/her security deposit. That itemized list must be sent to the tenant within 21 days of the date the tenant vacated the premises.

    Perhaps your tenant had no problem with you retaining her deposit, as long as she believed she would skate owing you rent. Trust me, as soon as you go after this grifter, shyster, con-artist, deadbeat; she'll have a very big problem with it.

    It isn't about what either of us thinks, believes, or desires. It is about the law. If you haven't created that list and 21 days has elapsed, the tenant can make your life miserable. How? A savvy tenant can end up suing you! The tenant can recover up to twice the amount of the deposit. Jim Croce said it best,

    I love the law. I've spent four decades practicing law. As much as I love the law and our country, both can sometimes fail us. Once in a while the bad triumph over the good. This is one of those once in a whiles!




     
    Last edited: Apr 3, 2011
  13. lynnjohn

    lynnjohn Law Topic Starter New Member

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    the deposit isn't the issue I sent a letter to her stating this info...
     
  14. jacksgal

    jacksgal Super Moderator

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    You sent an itemized letter with how deposit was used?
     
  15. lynnjohn

    lynnjohn Law Topic Starter New Member

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    yes.
    even if she claims she didn't receive it (although we also did have a verbal conversation too ) and takes me to small claims for this and lets say for argument she wins double the amount back: 3000 x 2 = $6000 she still owes $7100 for my loses I'm still ahead $1100. With the stretch that the judge gives her double the deposit back for improper notification they would also have to hear about the broken contract. I did re-list the house the next day from notification with a listing agent. I am not charging her for cleaning as she left the house very clean. And I did re-lease after three months at which point her financial obligations ends. So I say bring it on then I wouldn't have to sever her and a judge can decide what is fair. I have made every effort to re-rent and in the end had to drop the rate in order to get the place rented.
    it could be the best thing that could happen here if she take me to court for her deposit...maybe I shouldn't have sent that letter....hmm
     
    Last edited: Apr 3, 2011
  16. jacksgal

    jacksgal Super Moderator

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    Ok so your willing to forfiet (so to speak) $6000.00 with the hopes to win $7000.00 meaning your up $1000.00? Even if it turns out that way again collecting will be very very difficult and your cost could exceed the reward if any
     
  17. lynnjohn

    lynnjohn Law Topic Starter New Member

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    well i haven't forfeited anything I did the right thing. and that's the point I have done the right thing all along...but $1100 judgement is better than zero if for some reason as it seems I can't track her down as it seems from everyones posts that if she's wise to the system it can be very difficult to even serve her. So yes..it would be easier if she came to me if she tries to make it impossible for me to sever her.
     
  18. jacksgal

    jacksgal Super Moderator

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    "You" cannot serve her! As i stated before you are best to use a "Process Server" they are knowledgable on how to serve difficult persons and are aware of the guidelines in doing so
     
  19. lynnjohn

    lynnjohn Law Topic Starter New Member

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    yes I know sorry.. I should have said hired someone to serve her. What are the rules on severing someone in california. Are there places that are off limits, times or circumstances that would make it invalid ?
     
  20. jacksgal

    jacksgal Super Moderator

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    The process server will know this information
     

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