Breach of lease

[RPFeinman319]

My wife and I signed a 36 month lease, on 12/1/05. We unexpectedly had a change in employment several months later. On 7/3/06 I verbally notified my landlord that we intended to vacate our apartment on 8/31/06. On 7/14/06, I sent notification in writing of same, including a forwarding mail address and phone number.

Just got a note in today's mail: security deposit, less damages (and some suspicious - sounding charges) equals $500. The good part? "I will not refund your $500 left from your deposit because you failed to perform on your end of the lease agreement."

It should be noted that the apartment was re-rented, tenants took posession as of 9/1/06, and NO loss of rental dollars was incurred by landlord.

My question: Can he simply withhold our security deposit for (admittedly) not staying the duration of the lease contract? Also, can he deduct $200 from the security deposit for some mysterious "Driving/Time Spent" charges?

We are now in Wisconsin, and getting back to Ohio might prove more difficult than it's worth. I'm just looking for a first impression here. Appreciate your time.

Will

[ohiolandlord]

I don't think he can deduct for "driving time spent." Not sure what that means.

What does your lease say about re-renting fees?

[RPFeinman319]

The lease actually says nothing regarding re-renting fees. My wife and I told him verbally that we would be glad to pay for any costs associated with re-renting, such as flyers/ads in the paper, etc. He's charging us about $170 for an ad that ran in the local paper for 1 week, along with some color-copied flyers he had printed up. We gladly showed people around the place (with zero notice, and one of them at 11 o'clock at night!), and gave tours on our own...we really felt bad, and wanted to legitimately help ease the transition as smoothly as we could.

The new tenants did not demand that he repaint, as long as any nail holes were filled in and repainted. This he passed along to me, and I went the extra mile to fill, sand, and repaint every nail hole we put in the walls (Our lease said we were only responsible for holes larger than the diameter of a dime (there weren't any), but again, we wanted to help as much as we could). I agonized over this place for hours (up to and including camping there the night before we left for Wisconsin, so I could get up at 4:00 am to apply a finish coat of paint before I left)...and to get this sort of response is, I feel, unwarranted.

The most recent upshot? We've obtained professional legal help...an attorney who is a family friend, who knows us, knows we would never try to stick a landlord with a bad deal, and who is almost as incensed as we are about the whole thing. The landlord has another week to send the check (and include the "driving/time spent" fees), or she's going to file for us.

I feel terrible, as I've never sued anyone in my life, but I don't think he's being fair.

[ohiolandlord]

Give us an update when you can.

[eewillison]

In Ohio, Ohio Revised Code Section 5321.16 establishes the landlord's duty to return a security deposit, and states that if the tenant gives notice to the landlord of his new forwarding address, and the landlord wrongfully withholds the deposit for more than 30 days, the the tenant can sue for double damages and attorneys fees.

If the landlord had no lost rent, and there was no damage claimed, then I think you are in the driver's seat on this one. The landlord can only withhold the deposit for his actual damages beyond reasonable wear and tear. Charges for "driving" won't work. Further, Ohio case law establishes that there are no enforceable provisions in leases for automatic forfeiture of security deposits for such things as early lease termination. If there is lost rent for such a thing, then that is one thing, but just trying to claim it when there is no lost rent or other damages isn't going to work for a landlord in front of a court.

To find out more about recovering your security deposit, you can read our kit at http://www.ohiolandlordtenant.com/secdep2.html. If this is a central Ohio area problem, then you can consult me directly at eewillison@earthlink.net. The first consultation is free.

[RPFeinman319]

Well, I have a court date established: December 21 of this year. I have to fly back to Ohio for an appearance in small claims court. My attorney, our family friend, says that he's probably just hoping that I won't make the trip. Lol he's in for a huge surprise, then!

I've been doing a lot of research of Ohio Revised Code Section 5321.16. After going over it with a fine-toothed comb, I really don't think he has a leg to stand on. Are there any other relevant statutes that could have an impact? Or does case law provide him with some avenue of escape? I tried to get on Lexis/Nexis to search, but I am....overwhelmed, to put it simply.

Any advice that anyone could render would be much appreciated. Thanks for letting me rant, by the way...it's been a huge load off my mind just to find a forum to use as a sounding board.

Thanks!


Will

[ohiolandlord]

A Dec 21 court date sounds very iffy! I hope you have refundable plane tickets. Call the judge's bailiff and get regular updates and maybe even inform them that you will be flying in from Wisconsin. The landlord is stuck with his claimed deductions which means he can't bring up something new now. I think you have a good case especially if you can prove the landlord lost no money (rent, advertising, clean up).

[RPFeinman319]

Lol thanks for adding the worry of docket rearrangements to my list! :) My attorney used to be the Prosecuting Attorney for the city for 20 years or so before going into private practice. She knows everyone at the courthouse, so I hope she can head off any last minute shenanigans.

W

[RPFeinman319]

Well, it's all over but the $$. (sigh) He just would not listen (banging head slowly on desk). I talked to him three times, and my attorney wrote him a letter, and even stopped him in the hallway before our court appearance today to tell him that he's defending a poor position...all to no avail.

Summary:

He got admonished by the magistrate for wrongfully witholding peoples money,
He got nailed for almost all of the security deposit times 2,
He got nailed for our attorney's fees.

He didn't even bring to court documentation that we asked for: advertising costs, costs for signs/fliers, etc., and the magistrate just shook his head at the "Driving/Time Spent" charges.

Our ex-landlord was claiming $357.00 in charges that were either bogus or unsubstantiated (Driving/Time Spent, signs & fliers, and an ad in the paper). He got to keep $90 of those charges...because the magistrate looked at ME and asked if I felt like giving the guy a break. I said, "Sure." ... must have been Christmas spirit overtaking me.

Anyway, I should receive a copy of the ruling within 2 weeks, and he has 30 days to pay from that point.

Thanks for ALL of your advice, and for letting me vent.

PS...Still not happy about suing the guy. Just wish he would have listened. Not a very Merry Christmas for him or his family (sigh).

Anyway, Thanks Again!

Will

[RPFeinman319]

Certfied check in the mail today for almost $1,800.00. If he would have sent the money he claimed was properly owed us, it would have come to around $450. We would have raised a fuss, complained, and probably called him back in Ohio to let him know what a jerk he is...but we wouldn't have sued him. Now he's on the hook for all those trumped-up mysterious charges that he tried to nail us with. And he's paying for them TWICE.

It's too bad that it came to this - hopefully he learned a lesson about security deposits.

Thanks for all your advice and help!

William Green RN, MSN, CRNA
Wisconsin Rapids, WI

[ohiolandlord]

Thanks for the update. Can you provide a copy of the decision? You can attach files to posts.

[RPFeinman319]

I'm willing to, sure...but we got it in letter form, not electronic. It's rather long, but I don't mind typing it in - might take a while.

[RPFeinman319]

And should I leave our names out of it?