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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.Originally Posted by sniper7
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!
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.
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!
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.
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.
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!
Thank you everyone for the help in how to approach the situation!
You sir are a gentleman and a scholar. Congrats.
I am increasingly persuaded that the earth belongs exclusively to the living and that one generation has no more right to bind another to it's laws and judgments than one independent nation has the right to command another.”
― Thomas Jefferson
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To everyone who feels like they are standing on Hadrian's wall as Rome crumbles behind them. - John Ringo
Great job. Glad you didn't have to show them the beheading video.
"There are no finger prints under water."
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