Wrongfully Evicted And *Still* Can’t Get My Deposit Back

Shhh. It's 3000 bucks! by Francis McIlveen
Shhh. It’s 3000 bucks! by Francis McIlveen

Dave’s here to answer your questions every Wednesday, so send them to him at tenant@sfappeal.com

So here’s a quick synopsis of what’s going on with my apartment. My roommate and I both signed a year lease late-September for the apartment, and about a month into it, the landlord came over to check out some issues that we were having with the apartment, and she said that we could put in our 30 days notice. It was just a verbal agreement. Well shortly afterward, my roommate realized that she needed to go back home and had to put in her 30 days notice. I was thinking about finding a new roommate when our landlord informed us that she wanted both out if one was going to go (she gave no reason). I could have fought it, but I kind of wanted to find a new place anyway.

So we put in our 30 days notice and then we received a letter from her lawyer stating that due to us signing the year lease, we were responsible for paying for the apartment until it was rented out. We paid for the month of December, though I turned in my keys the 6th of December so that the manager could start showing it. It still has not rented out, though they’ve been supposedly showing it since that date. The rent is now coming out of our security deposit starting the 1st of January.

Is there any way to fight this?

Here’s another lesson about getting things in writing. First, if the landlord was willing to terminate the lease when she told you could give 30-days notice, that should have been memorialized (like that legalese?) in an agreement.

Many tenants believe the threat that they will owe all of the future rent if they breach a lease.That is simply not true.Second, when the landlord told you she wanted both of you to go you should have asked her to write her rationale in a letter. Of course, I think I can guess why you wanted to go. Could it be that your landlord is an asshole?

So now we have a situation where you surrendered the unit early and the landlord still claims she can’t rent the place? How much rent is she asking for it now?

This is a very common occurrence. As long as the landlord is sitting on a tenant’s money, or better yet, can intimidate them to keep paying, the landlord won’t do anything to re-rent the unit. Many tenants believe the threat that they will owe all of the future rent if they breach a lease. That is simply not true.

Unfortunately, without evidence that she told you could terminate and then tried to wrongfully evict you, you could be liable for breach of the lease.

However, a landlord has a duty to mitigate her damages after breach of a lease. That means she has to re-rent the unit and arguably absorb a decrease to reduce her own overall loss.

For example, if your one-year lease commenced on October 1, 2009; your rent was $2,000.00 per month; your security deposit was $2,000.00; and you paid through December; there are nine more months left on the lease.

We all know the apartment can rent for something and presumably it can rent for close to same amount as you paid. Unless you really got skinned, the market hasn’t dropped that much.

But even if the landlord can only get $1,800.00 per month, the most you would owe her for breach of the lease would be $200 X 9 or $1,800.00 minus any incidental cost she had to rent it, like advertising the unit. So you should get around $200.00 back, unless you damaged the place on your way out.

Find out how much your landlord is asking to rent the unit. Check to see if she has already rented the unit. If she has and she is still trying to take your security deposit she will be unjustly enriched (more cool legalese.)

If she is asking for an increase in rent or she has already rented to other tenants, sue her in small claims court for your security. See last week’s Tenant Troubles for information about suing for a security deposit and enjoy the great Dusty Springfield.

Here’s a caveat. Case law regarding landlords’ duty to mitigate damages isn’t great. If the landlord can show the court that she hasn’t been lollygagging on your dime, you may have a problem.

I think I may have already said this, but it’s worth repeating: If all is fair in love and war and all war is about ownership of land (and resources), don’t be surprised when your landlord lies and tells the court, with a straight face, that she never offered to terminate your lease. That’s why you have to get this stuff in writing.

Crow & Rose's legal practice emphasizes eviction defense, wrongful eviction and other landlord tenant and real property matters.

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