Should I give in to my landlord?

[Necronic]

I just moved to a new apartment, and I am currently talking with my old landlord about the deposit. It hasn't been pleasant. I don't think he will go after me for more than the full amount, but it basically feels like robbery to me (its over 1k) and I haven't decided whether or not its a good idea to fight him

His first response was "It's all going to be used to pay late fees." My response was "BUH?!?!" For some reason he thought it was ok to charge 1200$ in late fees without ever telling me. I don't think there is a snowballs chance in hell this would stand up anywhere.

Now he's looking for other ways to get me, and the fact is he could. My ex didn't fill out a check in form so presumably he could charge me for all of the damage that was pre-existing. There is also the matter of the central AC. I didn't change the filters when I first lived there, and the Central AC went offline, which by the lease is my fault.

If this was the whole story I would say 'take the deposit and lets be done with it', but there is an interesting twist. I am paid up through the 1st. He pressured me to get out by yesterday so he could start doing some remodelling for the next tennants. I'm doing him a pretty massive favor by letting him do this, and I don't have to. My attitude is that 'you pushed me out before my lease was up, so you do the repairs/cleaning and don't bill me for it."

I'm talking to him again tonight, and I am planning on playing hardball. If he has a list of repairs that need to be done I will tell him that I will do them, but I don't want his guys working in here until I am done, because I don't want them damaging anything. That will cost him a LOT of time/effort/money to stall that construction work.

The other thing I could do is cut the power off. It would take 2-4 days to get it back on.

In the end I doubt I will see my deposit, which (considering no check in form was filled out) is fair, however I can't stand how he is trying to take it from me. The thing is, I pick my battles. I don't fight for stuff when its not really that big of a deal. And because of that I think he got the impression I am a pushover so he can just bully me around. Which isn't the case, at all. I have sat in meetings with people richer, smarter, older and more powerful than me and looked them in the eyes and challenged them on their assumptions. This guy is nothing.

I really caught him off guard when I told him that the late fee justification wasn't acceptable. And ffs of course it wasn't. Who in their right mind does business like that?

The only concern I have is that if I go to the mats with him on this he will come after me for more than the original deposit, as a punitive measure. I know tenant laws are different in different places, but what are your thoughts?

 

[Dave]

Apartment or house? This makes a difference.

IN MOST CASES, you are only responsible for the amount of the deposit. DO NOT PAY HIM!! Check your rental agreement. In most cases and most states, the law favors the renter, not the landlord. If it's not specified in the contract, he can't make you pay for it. Tell him politely that he can have your security deposit but that's all he's getting. If you don't live there any more, tell him that any correspondence needs to come from his lawyer. In the end you might have to let him take you to court to make him prove that you owe him.

The law is more than likely on your side.

 

[Necronic]

What are your thoughts on the late fees? They were mentioned in the lease, however there was never any enforcement, up until now. And now the enforcement strikes me as just a way for him to get the money. Any chance that would stand up?

Its an apartment btw, but its only a 2 unit complex.

 

[General Specific]

I would say if he didn't notify you that there were late fees, then he has no reason to be collecting them now. Also, see if he can tell you how far back some of those fees go. There may be some sort of limit on how far back he can go to collect fees or some ceiling amount.

As Dave said, go through your lease. More than likely, if taken to court, it will not hold up and he'll be liable for everything. It might be worth it to have a lawyer take a look as well. I'm sure they could find enough cause to break the lease.

 

[Jay]

Definitely smells like bullshit to me. Check your rights.

 

[Chibibar]

I say check your contract that you signed. It spell out all the fees, late charges, termination, damages etc etc etc. but I can tell you that he CAN'T force you out if you are paid up until X days. ONLY if you agree to it, but then the day you are NOT there, he technically owe you (again check the contract)

 

[Necronic]

The late fees are in the contract. I've been reviewing it. The funny thing is that I now remember that when I went over it with him the exhorbitant rate of the fees caught my eye and I mentioned it. His response was "oh don't worry about those I don't charge them unless someone is a real problem". Of course none of that will hold up in court, but it is douchbaggery.

HOWEVER...

I live in Texas. Texas generally has pretty unfavorable laws towards tenants, or just no laws in general. There is one law that is applicable here and that is that the late fee must be reasonably within range of the actual damages suffered by the landlord for the late payment.

In this case the late fee is 50$ then 50$ per day. That ends up being a good 30% more than my monthly rent itself! The general (and vague) consensus is that the reasonable level for one month late ends up being ~25% of the total rent for a month. His is 130%....

Moreover, my rent was always payed on either the 3rd through the 5th. In every case I paid rent (even when it was on the 31st of the month before) the check was not deposited until the 8th of that month. I believe he would have a VERY difficult time arguing that my being 3 days late cost him anywhere near 150$ when he didn't even deposit the check until the 8th.

Here's why this matters. If a landlord is found to have violated this statute, the lease clause is considered void and the tenant is awarded a punitive damage of court costs, 100$, and 3 times the charged late fees.

This would be a serious gamble, no doubt, but the risk to him is far greater than it is to myself, and from what I have been reading it seems that with the economy the way it is courts are generally leaning more towards the tenants in these cases. Only issue is that I can't find a example cases where the tenant won (or lost for that matter). If I go against him I would be liable for the court costs plus the late fees I already owe. If I loose, I end up owing maybe 1k in court costs. If he looses, he ends up owing 1k in court costs and 3.5k in punitive damages, plus it sets precedent for every other tenant.

Frankly it would be insane for him to go after me. My belief is that he doesn't know the law nearly as well as he thinks he does, and he uses the threat of it like a cudgel. Frankly I am just tired of his BS and bullying, and if it comes down to him I will be taking him to court.

I'm going to be talking to him tonight about the situation. What I would like to do is come to an amicable agreement where I recieve ~50% of the deposit back. If not I will ask him to describe the specific damages, then request he stop all renovations until I vacate so I can do the repairs. If he specifically pushes the late fees I may or may not bring up the law. The best situation is for him to claim the late fees as the only damages, have him sign something saying the apartment is in materially acceptable shape, then sue him for the late fees.

 

[Dave]

Wait. What day was the rent due? If it was due on the 1st and you paid on the 3rd then that says that you were late and the fees you say are in the contract kick in. What you need to do is make sure you have the dates on the CHECKS to show that the date you wrote it does not match the date deposited.

I can't tell from your post if you were always late or what.

 

[Necronic]

I was always a day or 2 late. Yet again though I have to say that there was never any bill/notice/receipts given though. According to some of the legal stuff I have been reading, a continued acceptance of late rent without billing can be construed as an agreement to modify the lease, therefore he ultimately may not be able to enforece those late fees.

Last night I tried talking to him again, and he began to threaten large fines for all sorts of damage throughout the unit. Part of this is cleaning fees, for cleaning done against my wishes during the term of my lease. Another part was the carpet, which according to him is completely unnacceptable and requires replacement. My belief (which is stated) was that I would like to hire a carpet cleaning company to come by and assess the damage and do a cleaning, and that he would need to stop renovations while the carpet cleaning was being done since they would need to clean the entryway (the most dilapidated part). His repsonse was that that was unnacceptable and he would not stop renovations (installing a new bathroom) so I could clean the carpet, and that ultimately there was no way I would be able to clean the carpet.

Remember, at this point the apartment is in my name and I have paid rent through to the first.

At this point he also told me that if I continued to ask him for a walkthrough he would stop talking to me right now and sue me for everything he could.

Right now my stress levels are through the roof. This morning I decided to feint and told him that I was sorry for bothering him, he was a good landlord, and I won't bother him anymore. After I recieve and itemized list of deductions from my security deposit I may or may not take him to court, depending on what he tries to do. It is my belief that he will not try to go over the amount of the security deposit itself, but if he does provide a list that contains items that I believe I can fight him on I will be taking him to court and suing him.

Searching for applicable legal text has been difficult, but I recently found an incredibly detailed list of court cases as they apply to the specific provisions of the Texas Property Code and Texas Deceptive Trade Act, both of which contain statutes that I believe I can sue him for material as well as punitive damages.

 

[Jay]

Don't you have some sort of website that allows you to quickly check your rights online? I know in Canada we do and they are VERY specfic on situations that was awesome to me, when I was in a similar, albeit less bullshit like, situation. Maybe a number to call?

My advice for you is to stop talking to him. Inform yourself. Completely and utterly. If needed take initiative and talk to legal aid and get yourself protected. If he's threatening to sue you if you're crossing the line he's trying to bully you. To either come to terms with his ways or to push you to do so. Don't commit to anything. If he wants to SUE you, you need to get your 411 on, STAT.

Get off the kleenex (don't let emtions get to you, this is business) and don't talk to him unless needed. Follow legal aid.

Keep us updated mate and best of luck to you.

 

[sixpackshaker]

Reads title and ignores content of OP.

OK, If you give in, wear protection.

 

[Tinwhistler]

Reads title and ignores content of OP.

OK, If you give in, wear protection.

 

[Necronic]

I've stopped talking to him, unless necessary, and so far my stress is already way down. I rented a carpet cleaner and shampood a bunch of the apartment, except the stairs. Funny thing about that too. His workers spilled something on the stairs themselves.

Other than that area, for the most part the Partment looks good. The one exception is the office where you can clearly see an outline of where there was a desk. I went over it three times, knocked some of it out but it needs more work. If he doesn't shampoo tommorow I will go back and do it again.

This time I also took a bunch of pictures, which I am going to have printed tommmorow. They show the level of rennovagion he is doing, which would clearly make the unit unlivable, and the state of the carpet, which is good,, with the exception of the entryway and desk area and places where the tacking wasn't done properly and the carpet has seperated from the floor.

His move really

---------- Post added at 02:58 AM ---------- Previous post was at 02:57 AM ----------

I've stopped talking to him, unless necessary, and so far my stress is already way down. I rented a carpet cleaner and shampood a bunch of the apartment, except the stairs. Funny thing about that too. His workers spilled something on the stairs themselves.

Other than that area, for the most part the Partment looks good. The one exception is the office where you can clearly see an outline of where there was a desk. I went over it three times, knocked some of it out but it needs more work. If he doesn't shampoo tommorow I will go back and do it again.

This time I also took a bunch of pictures, which I am going to have printed tommmorow. They show the level of rennovagion he is doing, which would clearly make the unit unlivable, and the state of the carpet, which is good,, with the exception of the entryway and desk area and places where the tacking wasn't done properly and the carpet has seperated from the floor.

His move really

 

[Necronic]

I'm almost sure I can get him now under the following rules/case citations:

Late-Fees, unconscionable under Section 92.019.a.2 of the Texas Property Code, take 1:

The late fee structure as proposed would have monthly fees of 1500$, 130% of the rent itself. This is unconscionable and clearly not representative of the actual cost to the landlord for late rent. Beyond that, as rent was never actually deposited until 2-4 days after the check was delivered it is even less likely that a 50+50$/day fee structure represents damages.


Unconscionable take 2:

This section requires that fees represent a reasonable estimate of uncertain damage to the landlord. If the lack of payment of 1150$ in rent over the course of 3 days could have resulted in the possible damages of 150$ to the landlord, then why would the landlord not attempt to collect this 4000$ in late fees that accrued over the course of 1.5 years? By not pursuing this money the landlord clearly shows that the uncertain date of delivery of these assets is not detrimental to his business to the extant that his late fee structure implies.

-------------

Late Fees, Failure to collect waived the right to collect.

Through the course of the lease, the landlord made no attempt to collect or mention of the late fee's at the time of rent payment, or at any of the number of other times that the tenant saw the landlord. By never enforcing this clause the landlord effectively waived the right to collect them.

(have a couple old case references for this one)

The lease does include a non-waiver agreement, however in the case of Musgrove v Westridge (2009) the court found that at a certain point the continued lack of enforcement of the covenant will effectively over-ride even the non-waiver agreement. Therefore the late-fee clause is still waived.

--------------------------

Texas Deceptive Trade Act

(3) causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;
(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not;

The landlord commented that the lease in question was a form lease from the TAA, which is not true.

-----------

More to follow about carpet etc...

 

[Jay]

Good job man. Knowledge is power.

 

[Necronic]

new stuff. In spoiler tags in case he is trying to google this stuff (does that work?)

Spoiler

The other argument I can bring, and one that I think I have a good chance on winning with, is that by showing a continued pattern of accepting late rent without charges he waived his right to collect them retroactively. There is a no-waiver clause in the contract:

"Landlord and Tenant have not entered into any oral agreements and this written Lease Represents Landlord’s and Tenant’s entire agreement. This Lease shall not be changed unless by written agreement. Any clause in this Lease or addendum, if any, declared invalid by shall not terminate or invalidate the remainder of this Lease. This Lease shall be binding upon and inure to the benefit of the parties to this Lease and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns. Landlord’s past delay, waiver, or nonenforcement of acceleration, contractual or statutory lien, rental due date, or any other right shall not be deemed to be a waiver of any other breach by Tenant or any other term, condition, or covenant in this Lease. All notices under this Lease shall be delivered to Landlord or Landlord’s agent at the address specified in paragraph 5 and to Tenant at the Property address."

The important part is in bold, as I believe that it implies that waivers and nonenforcements can exist in past instances (however they do not apply to future instances, which I am ok with.)

I also have the following court opinion on a similar case:
(Allen V Hines Ranch)

Allen alleges that by accepting the late payments without the late fees, Hines Ranches waived the right to claim that Allen was in default for non-payment of those fees. In the absence of an unambiguous non-waiver clause, Allen would be correct. See A.G.E., Inc. v. Buford, 105 S.W.3d 667, 676 (Tex. App.--Austin 2003, pet. denied). However, under this contract, as a matter of law Hines Ranches did not waive its right to collect the unpaid late fees.

.....the waiver clause in question....

No delay by Seller [Hines Ranches] in enforcing any part of this contract shall be deemed a waiver of any of Seller's remedies. If Seller accepts any payment after its due date, the acceptance shall not be construed as a waiver of any other due date, shall not change any other due date, and shall not waive any of Seller's rights or remedies.

......

Notice the difference in the words. In his non-waiver it states that delay shall not be deemed a waiver of any 'other' breach, whereas in the lease above it states that it shall not be deemed a waiver of ANY breach. In his clause it implies that waivers can exist for a specific breach, but they aren't transferable. In the above clause it states that there will be NO waivers of any kind.

 

[Tinwhistler]

spoilering doesn't hide it from google. If you look at the page source, the text is still there, and indexable.

 

[Necronic]

darn. Only reason I worried is that on another forum when you google for a part of this situation, it immediately shows the forum thread I started, and its pretty clear from the description that its him.

Anyways, I am feeling much better about this with the discovery of that last court case, I think with that I can clearly nail him for having temporarily waived his rights to those clauses.

 

[Tinwhistler]

if you have to take him to small claims court, do so. It's designed to be a friendlier process for folks who don't have lawyers.
The following vid is Illinois, but should give you an idea of how to do it.


The lady talks slowly and it's boring as hell, but it's 10 minutes of good information.

---------- Post added at 05:13 PM ---------- Previous post was at 05:01 PM ----------

as a point of note: Small claims fees in my county would only run about $200, and if you are suing him, you can ask that he pay them if you win.

It's my opinion (though I'm not a lawyer) after some reading that by not enforcing any of the late fees and continuing to operate as if the lease was valid, the landlord has completely waived the right to collect on those fees. The way I read his waiver line in the contract is that at any time the landlord can say "Fuck it, I'm not taking any late rent any more" and that's legally valid, but there's no unambiguous line that says "no waivers, period"