Landlords really piss me off!

[BuffCyclist]

I'm in the process of extracting my security deposit out of the landlord from my lease that just ended.

Long story short, I moved out on March 15th, provided written notice to landlord stating I am departing March 15th, but that the house will be completely empty on April 15th (giving landlord 30 days notice that I am fully accountable for). He told me that he would list the house for rent on 4/15 and that until we found someone to lease it, I would be responsible for the rent (which I knew and already told him). Which makes sense since I left the lease before the term was up.

My lease technically ended on June 30th, but he found someone to rent the house and move in on May 19th. They informed me that my last day in the house would be May 18th. I had already paid for May's rent, so they were going to give me 13 days of prorated rent, along with the security deposit.

Today is the 31st day that they have had to get me the security deposit refund and the lease states they will get it back to me in 30 days. So I call the landlord to find out where it is.

I ask him about the security deposit refund and he says they will get it out in the mail tonight. I ask how much it is for, and he tells me its for one months rent (sec deposit) plus 13 days of prorated rent, minus a $100 administrative fee. I inquire about the fee because it is no where in the lease. He tells me they informed me of it when I signed the lease.

I then proceeded to tell him that if it wasn't in writing, it doesn't apply. Additionally, he technically owes me the full amount of the lease since they failed to get the security deposit back to me in the time frame stated in the lease. At this point, he blows up. "*#&( I'm hauling radioactive nuclear waste for the US Government and I don't have *&@&@(# time for this *#&@. You just didn't read the lease in full or read over it because my lawyers put that clause in there." Okay, I say, I'll call your wife and ask her for the details regarding this fee. (As I once again tried to ask him what the administrative fee was).

She tells me that the administrative fee is IN the lease and it is in their lease that their lawyers drafted up for all 19 of their properties. I ask her where it is as I must have missed that. She said its NOT IN the lease, but that they told me about it upon signing of the lease. I told her if its not in the lease, it doesn't apply, and is therefore not a valid deduction. I asked her if she could read the lease and if we could meet tonight to discuss it, as well as me pickup the security deposit refund so I don't have to wait the 3 days for it to be mailed from their post office to my post office (same building). After hanging up, I reread the lease 3 times. Already read it twice before calling.

My saving grace:


25. Miscellaneous.

Time is of the essence of this Agreement. This Agreement cannot be modified or canceled except by writing signed by all parties. This Agreement is the entire agreement between the parties and supersedes all prior oral statements. If any portion of this Agreement is in violation of the Uniform Owner-Resident Relations Act, the invalidity of that portion will not affect the validity of this Agreement or any other portion.

His wife was always nicer to me than he was, and knowing that he's out of town I'm hoping that I can just prove to her that, according to their lease, if it is not in writing, it is not a valid agreement. And after speaking with my Fiancee about this, we agreed that if the landlord does not give us the $100, then we are taking them to small claims court. I wonder how many of their tenants have been ripped off like this, but I'm guessing all of them! [Rant1]

I know, I know. Rant rating: 0/10. Could've used more cursing. Guess I'm just too level headed and cool when I'm extremely pissed off.

[Chad4000]

I work in this field.. an admin fee has become somewhat standard for larger complexes, but we ALWAYS collect it up front. it would have to be in the lease for them to collect it now.

whereas the fine print like on our application paperwork, and deposit receipt is where we state it. but again, we are collecting up front, just to enter into the lease..

[Waywardson174]

Additionally, he technically owes me the full amount of the lease since they failed to get the security deposit back to me in the time frame stated in the lease.

I don't think this is true. Under Colorado law, I believe you are entitled to treble damages, but not the entire value of the lease.

C.R.S. 38-12-103(3)(a) The willful retention of a security deposit in violation of this section shall render a landlord liable for treble the amount of that portion of the security deposit wrongfully withheld from the tenant, together with reasonable attorneys' fees and court costs; except that the tenant has the obligation to give notice to the landlord of his intention to file legal proceedings a minimum of seven days prior to filing said action.

[Waywardson174]

I would give the seven days notice and get ready to make him pay up.

[Chad4000]

I don't think this is true. Under Colorado law, I believe you are entitled to treble damages, but not the entire value of the lease.

C.R.S. 38-12-103(3)(a) The willful retention of a security deposit in violation of this section shall render a landlord liable for treble the amount of that portion of the security deposit wrongfully withheld from the tenant, together with reasonable attorneys' fees and court costs; except that the tenant has the obligation to give notice to the landlord of his intention to file legal proceedings a minimum of seven days prior to filing said action.


yeah it's treble unless something else was stated in the lease..

for example, Im not sure why the landlord only gave himself 30 days in the lease when Colorado law says it has to be returned within 60 days. haha.. he gave himself less time then he should have. hahaha

[spqrzilla]

Give the notice.

It is illegal to charge an "administrative fee" in Colorado even if it was in the lease.

[Chad4000]

yeah.. make sure all comunications are in writing.. in fact, just telling the guy to email you so that it's in writing, will probably speed up the process for you getting the money back.

[BuffCyclist]

I work in this field.. an admin fee has become somewhat standard for larger complexes, but we ALWAYS collect it up front. it would have to be in the lease for them to collect it now.

whereas the fine print like on our application paperwork, and deposit receipt is where we state it. but again, we are collecting up front, just to enter into the lease..

For starters, he is not a complex or company. He is the owner of all 19 houses and rents them out (and maintains properties) on his own. It was never collected up front and it is not in the lease under Security Deposit.




I don't think this is true. Under Colorado law, I believe you are entitled to treble damages, but not the entire value of the lease.

C.R.S. 38-12-103(3)(a) The willful retention of a security deposit in violation of this section shall render a landlord liable for treble the amount of that portion of the security deposit wrongfully withheld from the tenant, together with reasonable attorneys' fees and court costs; except that the tenant has the obligation to give notice to the landlord of his intention to file legal proceedings a minimum of seven days prior to filing said action.


I'm in New Mexico, so that doesn't really apply. However, taken from the New Mexico Landlord Tenant Law:


47-8-18. Deposits.
A. An owner is permitted to demand from the resident a reasonable deposit to be applied by the
owner to recover damages, if any, caused to the premises by the resident during his term of
residency.
(1) Under the terms of an annual rental agreement, if the owner demands or receives of the
resident such a deposit in an amount greater than one month's rent, the owner shall be required to
pay to the resident annually an interest equal to the passbook interest permitted to savings and
loan associations in this state by the federal home loan bank board on such deposit.
(2) Under the terms of a rental agreement of a duration less than one year, an owner shall not
demand or receive from the resident such a deposit in an amount in excess of one month's rent.
B. It is not the intention of this section to include the last month's prepaid rent, which may be
required by the rental agreement as a deposit as defined in Subsection D of Section 47-8-3 NMSA
1978. Any deposit as defined in Paragraph (1) of Subsection A of this section shall not be
construed as prepaid rent.
C. Upon termination of the residency, property or money held by the owner as deposits may be
applied by the owner to the payment of rent and the amount of damages which the owner has
suffered by reason of the resident's noncompliance with the rental agreement or Section 47-8-22
NMSA 1978. No deposit shall be retained to cover normal wear and tear. In the event actual
cause exists for retaining any portion of the deposit, the owner shall provide the resident with an
itemized written list of the deductions from the deposit and the balance of the deposit, if any,
within thirty days of the date of termination of the rental agreement or resident departure,
whichever is later. The owner is deemed to have complied with this section by mailing the
statement and any payment required to the last known address of the resident. Nothing in this
section shall preclude the owner from retaining portions of the deposit for nonpayment of rent or
utilities, repair work or other legitimate damages.
D. If the owner fails to provide the resident with a written statement of deductions from the
deposit and the balance shown by the statement to be due, within thirty days of the termination of
the tenancy, the owner:
(1) shall forfeit the right to withhold any portion of the deposit;
(2) shall forfeit the right to assert any counterclaim in any action brought to recover that deposit;
(3) shall be liable to the resident for court costs and reasonable attorneys' fees; and
(4) shall forfeit the right to assert an independent action against the resident for damages to the
rental property.
E. An owner who in bad faith retains a deposit in violation of this section is liable for a civil
penalty in the amount of two hundred fifty dollars ($250) payable to the resident.

History: 1953 Comp.,  70-7-18, enacted by Laws 1975, ch. 38,  18; 1985, ch. 146,  2; 1989,
ch. 340,  2.

So after finding that last part in the law, they have entirely forfeit their right to a withholding of ANY portion of the deposit, be it repairs (there are none) or fees.

[Chad4000]

Give the notice.

It is illegal to charge an "administrative fee" in Colorado even if it was in the lease.


hmm.. serious question cause I hadnt heard this.

since when though? i wonder how all the big corps get around that. admin is pretty standard..

[Chad4000]

For starters, he is not a complex or company. He is the owner of all 19 houses and rents them out (and maintains properties) on his own. It was never collected up front and it is not in the lease under Security Deposit.




yeah what Im saying is that he cant collect it now.. admin fee (or paper shuffling fee as we refer to it lol) is literally for processing paperwork etc during the move in and whatnot..

[BuffCyclist]

Sounds like the consensus is that I should take a written letter of notice demanding the full amount to be in my hands in 7 days.

I'm hoping that by pointing it out to his wife, she will agree with me and give the check to me in full.

[BuffCyclist]

yeah what Im saying is that he cant collect it now.. admin fee (or paper shuffling fee as we refer to it lol) is literally for processing paperwork etc during the move in and whatnot..

Precisely. I've seen a lease write-up fee in large apartment complexes in both Boulder and Northglenn, but there is absolutely nothing like that in the lease he gave me.

[Ah Pook]

Sounds like the first landlords I had in Boulder. They rented to mostly college students, asked for first and last months rent plus security deposit, and then kept everything when the renters left. I learned a lot about rental law the month we moved out (leaving a spotless unit). They never provided any written itemized list or reason why all moneys were being kept. Seems the words "triple indemnity" can be very effective if used at the right time.

Don't even get me started on the business property slumlords I have to deal with now. [Rant1]

[BuffCyclist]

Aaaannnd, in a turn of events. Taken from the State Bar of New Mexico, found here: http://www.nmbar.org/Public/publicpubs/landlordtenantrelations.html


Deposits
The landlord may require the tenant to pay a security or damage deposit before moving in. This is money to be held by the landlord during the tenancy to protect against losses from unpaid rent or damage to the property (normal wear and tear excepted).

A landlord cannot charge a tenant more than one month’s rent as a deposit on any rental agreement of less than a year. If the rental agreement is for a year or more, the landlord may collect a deposit of more than one month’s rent; however, if he or she does so, he or she must pay the tenant current passbook interest on the whole deposit.

To avoid disputes at the end of the tenancy, the landlord and the tenant should, at the move-in, inventory the furnishings and condition of the unit, and cosign such a list.

The tenant may not use the deposit to cover the last month’s rent, although the landlord may apply it toward unpaid rent. A deposit, by definition, is refundable. The landlord must have suffered actual losses in order to withhold any part of the deposit.

The landlord has 30 days from the end of the tenancy in which to return the deposit or an itemized list of deductions plus any balance remaining from the deposit. The tenant must provide a forwarding address where he or she may receive this accounting.

If a landlord does not send an itemized statement and deposit balance to the tenant within 30 days of the date the rental agreement is terminated or the tenant moves out, whichever is later, the landlord forfeits all rights to any of the deposit and to take further legal action against the tenant in a court of a law. Thus, even if the tenant has incurred $10,000 in damages, the landlord loses the right to claim the damage if he or she has not acted within the 30 days. If the landlord fails to provide an itemized statement and return the balance of the deposit within the required time, the tenant may sue the landlord to recover the entire deposit, plus attorney’s fees and court costs, and in some cases, civil penalty in the amount of $250. As noted above, the tenant is required to leave the landlord a forwarding address. If the tenant fails to do so, the landlord must send the balance of the deposit and itemized statement to the tenant’s last known address.

Since today is the 31st day after my lease expired, then they have forfeit their entire rights to any witholdings. I'm am bringing printouts of the above, printed directly from the State Bar website (with link so they can look it up themselves), to convince her on the spot that it is in her best interest to just give me the $100 now, along with the entire security deposit refund.

[BuffCyclist]

Sounds like the first landlords I had in Boulder. They rented to mostly college students, asked for first and last months rent plus security deposit, and then kept everything when the renters left. I learned a lot about rental law the month we moved out (leaving a spotless unit). They never provided any written itemized list or reason why all moneys were being kept. Seems the words "triple indemnity" can be very effective if used at the right time.

Don't even get me started on the business property slumlords I have to deal with now. [Rant1]

Yea, I had a very interesting experience with a landlord once. We had rented the house for 7yrs, the original landlord just signed new tenants onto the old lease (so everyone was accountable for it in the end). It was a marching band house in that 4 tuba players would live there each year. I was there for the last 2yrs of it. At year 5.75, the landlord sold the account to a different landlord. Who tried to keep all of the security deposits.

The way the lease was written, we were guaranteed a 5.5% interest rate on the first, last and security deposit (totaling just over $6500) for the entire length of the lease. Boy oh boy was he pissed off when he tried pulling the above shit on me and I pointed those clauses out to him, also stating that he was past Colorado's legal 60days to return the deposit to me. We MADE money on that lease! lol

[Waywardson174]

So after finding that last part in the law, they have entirely forfeit their right to a withholding of ANY portion of the deposit, be it repairs (there are none) or fees.

Sorry for the mix-up, I missed that you were in New Mexico. Sucks for you that NM doesn't do treble damages. $250 not a real big bar to be a jerk, especially when so few tenants understand and assert their rights. Make him think twice about pulling this crap in the future. Make him pay.

[BuffCyclist]

Sorry for the mix-up, I missed that you were in New Mexico. Sucks for you that NM doesn't do treble damages. $250 not a real big bar to be a jerk, especially when so few tenants understand and assert their rights. Make him think twice about pulling this crap in the future. Make him pay.

No worries, not your fault as this IS a Colorado gun forum lol. I'm just an ex-Colorado resident and miss it so much I have to stay in touch somehow!

Yes, extra damages would be nice. However, the threat of them having to pay for the court costs, attorney's fees, and an extra penalty of $250 will make them think twice about withholding $100, because in the grand scheme of things it could be a lot more.


For the record, is it bad that I had fun researching the laws? [LOL] I'm actually looking forward to going to meet with the landlords wife tonight, see what she says, then hand her the printouts of NM Law (with the defined article/statutes attached and weblinks too), then tell her if she doesn't give me the full amount, then I will have my lawyer contact her.

[JohnTRourke]

you'll never get a lawyer to do it
it's way too expensive

you can however file in small claims court and it will be easily won.

get things in WRITING, that's the only evidence that counts.

i would go with the printouts and say "read, give me my money"
and if she doesn't
file in small claims court.

and then
call the local newspaper, they LOVE stories like this where people are getting screwed for years. (19 properties, turning over at least once a year, screwing all those people for $100 each, oh yeah, that story writes itself) Remember, reporters are lazy, you'll have to give them all the documents, law, everything you already have so the reporter can write it and document it)

[Waywardson174]

For the record, is it bad that I had fun researching the laws? [LOL]

Not the right person to ask, I'm a complete nerd for the law. I think C-Span is high entertainment.

[BuffCyclist]

you'll never get a lawyer to do it
it's way too expensive

you can however file in small claims court and it will be easily won.

get things in WRITING, that's the only evidence that counts.

i would go with the printouts and say "read, give me my money"
and if she doesn't
file in small claims court.

and then
call the local newspaper, they LOVE stories like this where people are getting screwed for years. (19 properties, turning over at least once a year, screwing all those people for $100 each, oh yeah, that story writes itself) Remember, reporters are lazy, you'll have to give them all the documents, law, everything you already have so the reporter can write it and document it)

Ah, well i thought you still had to get a lawyer to write up paperwork for small claims court. Guess I may be finding out how it works soon enough!


Not the right person to ask, I'm a complete nerd for the law. I think C-Span is high entertainment.

Haha, yes well I hate being screwed over and I've known/heard of way too many landlords who do that (mostly coming from Boulder). It makes me feel satisfied that I was able to find the laws on my own.

[sniper7]

Sounds like they need to pay in full! If not, tell them the next paperwork they receive from you will be the court date for small claims where you should/will go after everything. Maybe find the laws stating about being your own lawyer, the time you have to take off work, the time researching the case etc. itemize everything. worst thing the judge can do is not give you that amount.

[BuffCyclist]

Sounds like they need to pay in full! If not, tell them the next paperwork they receive from you will be the court date for small claims where you should/will go after everything. Maybe find the laws stating about being your own lawyer, the time you have to take off work, the time researching the case etc. itemize everything. worst thing the judge can do is not give you that amount.

Oh yes yes, I am researching that now too.

Have written up a legal looking/sounding document that I will hand to the landlord tonight, demanding the full amount of the security deposit plus the 13 days of pro-rated rent subtracting no withholdings or fees as today is the 31st day after the lease expired and they failed to return the security deposit to me. At the very end, I am stating that if they fail to return that amount to me tonight, I will pursue legal action to the fullest extent allowable by law.

Drafting up this legal document is quite fun too! I'm making it sound very official, from my experience of renting for 8yrs and signing leases often!

[CO Hugh]

Charge them the full deposit and the penalty. Tell the landlord if they don't pay the $250, they will be responsible for paying your attorney.

In Colorado it is easy to get up to $500 for fees, keeping in mind that it is still a loss and takes more time than that to litigate it. Normally, you won't receive damages for time off of work and related items, but any hard economic damages may be recoverable. Additionally the landlord will have to hire an attorney, and they don't work for free.

The NM law you cited seems to state that they cannot sue you for anything becuase they did not provide you with the notice. Free advice: wait until July 1, becuase maybe even August, becuase the law states "In the event actual cause exists for retaining any portion of the deposit, the owner shall provide the resident with an itemized written list of the deductions from the deposit and the balance of the deposit, if any, within thirty days of the date of termination of the rental agreement or resident departure,
whichever is later.

The landlord's argument may be that the lease did not expire until 6/30 and they don't owe an accounting until 8/1. Moreover, if you roust them and they send the accounting within an arguable 30 days, then you don't get your whole deposit back.

It is possible too that the landlord failed to mitigate damages, as why wait until 4/15 to list it, they should have listed it and showed it as soon as they received notice of your leaving.

While the law is stronger in Colorado, the NM has some teeth, and judges here don't like landlords trying to scam tenants. However, to avoid the penalty section, ie loss of the entire deposit, the judge may rule that the 30 day period had not expired so you get some money back but not all. The courts look hard for a reason not to punish one side too harshly. The landlord's lawyer, if he exists, will argue the days to avoid refunding the entire amount.

The administrative fee is BS, the law says normal wear and tear.

Now charging it up front with a separate charge is different, but it cannot be taken from the security deposit.

[BuffCyclist]

Wow, thank you for the very in-depth analysis of the situation COHugh!

As to waiting until 8/1 to demand payment, the lease does state that the lease can be ended early upon a written agreement signed by both parties. I have a document stating we ended the lease on 5/18, so that alters the original contract between the two of us.

If they want to get extremely technical about it, then I can prove that they leased the house out on 5/19 and had someone else living in the house while I was still technically fiscally responsible for it (the guy moved in 5/19 and would be living in it from 5/19 to 6/30). And the lease states that only one person may live in that house. So that would be a violation of the lease on their part, one more reason for the courts to rule in my favor.

Regarding the mitigation of damages, I agree 100% that they should have listed it on 3/15 (technically 3/12 when they received the letter).

And on the administrative fee, I've paid a $25 (or maybe it was $50) "application fee" for them to process my info, cash the deposit check, do a background check on me, etc. That was paid BEFORE the lease started. This is something entirely different that I never signed. Regardless, if they have something that I signed stating I owe them $100 at the return of the security deposit, that would be considered a withholding from the security deposit and they forfeit the right to that deduction the second it went to 30 days after 5/18.

My plan of attack is to go up there, see what she says, then provide her with my letter quoting the law and saying that I am pushing for the full security deposit without a fee taken out, and that if they fail to provide a check to me at the meeting, then I will pursue legal action. Hoping it doesn't come down to that, but at the same time it would be nice to really put them in their place!

[hatidua]

She tells me that the administrative fee is IN the lease and it is in their lease that their lawyers drafted up for all 19 of their properties.

IF, they really do manage 19 properties, you aren't their first rodeo = good luck!

[BuffCyclist]

IF, they really do manage 19 properties, you aren't their first rodeo = good luck!

That is a fair point. However, when I asked my landlord about the deposit since today is day 31, he asked me if I really want to quibble over a day as if he has no idea what the lease says.

Additionally, his wife was unable to say in the lease where it was, just that it was there. Then later said it wasn't in the lease but I was made verbally aware of it. But didn't ever sign anything about it or given paper about it.

[CO Hugh]

IF, they really do manage 19 properties, you aren't their first rodeo = good luck!

That is only an issue if they have been managing them right in compliance with the law to start with.

I cannot tell you how many times Realtors or someone has said well that's what we've done for 20, 30 years or whatever. Well its not right.

It is up to the judge, not some punk landlord, to determine if the law was followed.

Failing to provide an accounting is an intolerable amateurish error.

[BuffCyclist]

Well they ended up having their "lawyer" present, though I highly doubt that guy has any sort of real law degree. He was completely confused by the wording of the lease, which for the guy to have drafted it up entirely is pretty pathetic.

I gave her the letter that I printed up, stating that according to NM law, they have 30 days to return the security deposit back to me and after that, they forfeit any claim they had to it. The "lawyer" said that wasn't really a law but a guideline (even though I had the NM State Law number associated with it). I didn't even address the $100 administrative fee, just demanded that they return the deposit to me in full since they missed out on their chance.

After about 20min of talking with them, I was able to convince them to get it to me in full. Not to mention, they couldn't find anywhere in the lease where the $100 Admin Fee was supposed to be. Then the lawyer claimed that he just drafted it up but never put it into the lease or some bs excuse like that.

So at the end of the day after spending lots of time learning NM laws regarding rentals, I have my full security deposit in hand! :D

Thank you everyone for the help in how to approach the situation!

[Waywardson174]

You sir are a gentleman and a scholar. Congrats.

[Irving]

Great job. Glad you didn't have to show them the beheading video.

[sniper7]

well congrats on getting your money and rightfully so!

[CO Hugh]

The "lawyer" said that wasn't really a law but a guideline (even though I had the NM State Law number associated with it).

I have my full security deposit in hand! :D

Thank you everyone for the help in how to approach the situation!

Glad to hear you received your full deposit, Awesome!!

I like the "guideline", he thought he was dealing with a dumb hillbilly; I guarantee you no judge sees it as a guideline.

Now don't get cocky and try to practice law, rest on your victory.

[BuffCyclist]

Glad to hear you received your full deposit, Awesome!!

I like the "guideline", he thought he was dealing with a dumb hillbilly; I guarantee you no judge sees it as a guideline.

Now don't get cocky and try to practice law, rest on your victory.

Haha, oh trust me I'm not! It was a nice victory and I'm happy to say that getting the full deposit helped pay for my new toy: S&W Model 10-11 (Police Trade-in from Buds).

Two things I've learned in the past 4mo of home ownership: Get EVERYTHING in writing with a price BEFORE a contractor starts the work, and make sure EVERYTHING is in writing for any contract and you agree to all terms before signing!