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Real Estate Today

Changing Jobs is No Excuse for Broken Lease

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Robert S. Griswold | Steven R. Kellman | Ted Smith
15-September-2002 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (9 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

QUESTION: I am two months into a one-year lease agreement, but was recently given an opportunity to change my career. However, the job change meant moving to another firm over 45 miles away. I spoke with my landlord before I accepted the job and asked if he would be willing to work with me regarding getting out of the lease. I suggested a three-month notice and that I would pay any expenses he may incur and also proposed that he keep my entire $500 security deposit.

He mentioned that we could work something out so I accepted the job. Later I received a call from my landlord advising me that he was going to require me to fulfill the full one-year lease. Can I get out of the lease? I am even willing to give a six-month notice and pay further expenses.

ANSWER: Landlords' attorney Smith: I'm afraid not. Your job transfer is not legal justification for your breach of lease. The landlord can hold you to the term.

California law requires the landlord to mitigate its damages; that is, make a diligent effort to market the property to qualified replacement tenants. Such efforts include advertising, listing, showing and posting signs. So long as the landlord can show proper diligence, you will be held responsible for the vacancy factor together with advertising expenses and administration costs.

Hopefully the landlord will be successful in re-leasing the property so that your liability can be minimized.

Difficult renter

Question: A former tenant called and said he was filing a claim against me in Superior Court for $2,106. He wanted the entire security deposit back on the day he moved out despite the lease stating that I had two weeks to get it to him. I sent him an itemized accounting and photos of all the damages done by him and his co-occupants, which resulted in a deduction for just over half of his security deposit. The balance was returned to him within two weeks.

None of his complaints about the property were put in writing until his last day of tenancy. After that, he sent me three letters stating all sorts of damages that he claims are my responsibility. The amount of his claim grows with each letter and now totals $2,106. Can a claim like this be filed in Superior Court?

Landlords' attorney Smith: Security deposit disputes between landlords and tenants frequently are heard in Small Claims Court. Since California has a $5,000 limit, this case would most likely land in Small Claims Court. It sounds like he's asking for a rental refund based on problems he perceived he had in the rental property.

If you responded to his repair requests in a timely fashion, despite them being verbal, you should do well on this point. Be advised that it is your responsibility to prove to the court that damages caused by the tenant were beyond ordinary wear and tear.

In this case, it sounds like you carefully documented the condition of the premises with photos and that you have kept receipts for materials and labor. All of this evidence should be shown to the Small Claims Court judge. During your presentation, you might want to point out that the tenant's claims grew with each letter. This might cast suspicion on the validity of the claim.

Make sure you can show that the damages were above and beyond ordinary wear and tear.

Late spate

Question: My tenants routinely pay their rent late, but almost never pay the associated late fees. They say they'll pay the late fee and I have sent numerous written demands. A friend of mine said he has even had trouble collecting late fees in court with some judges advising that he should be glad that the tenants pay the rent. He has completely given up on collecting late fees.

My tenants will be moving in about two months so I have stopped sending them written notices, but can I deduct the late fees that were never paid to me from the tenant's security deposit when they move?

Landlords' attorney Smith: Late charges should be a deterrent to late rent payment by tenants. However, the legality of late charges in residential lease agreements is a subject of continuing debate. The dispute usually involves the amount, and wording, of the late charge clause.

Despite this, most agree that a properly worded, reasonable amount late charge is legal and enforceable. A late charge is not rent. In residential leases, do not place a late charge on a three- day notice to pay rent or quit. Unpaid late charges could be enforced by a three-day notice to perform or quit.

Alternatively, a 30-day notice could be served if the agreement is month-to-month. Although California Civil Code is unclear, it is my view that your accumulated and unpaid late charges could be deductible from the security deposit, along with other rent and cleaning, at termination of the tenancy.

IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

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Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws.  As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or  intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply.  Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

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Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161

Email: rgriswold.ret@retodayradio.com

2006, 2005, 2004, 2003, 2002, 2001, 2000, 1999, 1998, 1997, 1996 Robert S. Griswold.  All Rights Reserved.
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