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Landlord/Tenant Trial Next Week
by Anonymous
on January 25, 2015 @11:55
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Every now and then we get scummy tenants. I have been in this business since 1997, and this is the first time I have been sued. I'll keep this as short as I can.
One of by buildings is a Victorian mansion, built in the 1890s. I maintain it very well. Every year, pre-season, I get the boiler checked out. When it needs work I tell them to do what ever it takes to fix it quickly. This past November we had a very cold period, and it kept shutting down. The heating company was there every day. They determined that the autofill device needed to be replaced ($1000). I told them to do it now. The started, but then CRACKED THE CAST IRON BOILER HOUSING. That ruined the boiler immediately.
I told them to replace it as quickly as possible ($25,000). I offered motel rooms and space heaters to all the tenants. One tenant in a 2-BR unit took me up on it for one night.
It took 9 days to get the new boiler working at 100%.
I then get a call from a landlord asking about a reference for the tenant who took me up on the hotel room. I didn't know they were moving out. I didn't like her or her roommate, so I gave them a notice to quit at the end of December.
The moved out at the end of November, and didn't pay December's rent ($1700) or utilities. And now the kicker: They sued me for their $900 security deposit, and 2 weeks of rent for November during which time they said their unit was uninhabitable. (The 5 other tenants didn't even complain).
They broke their lease, didn't give me proper notice before filing their security deposit suit, and didn't follow the warranty of habitability law in which the were supposed to give me written notice about the heat problem.
I hired a lawyer and filed a counmtersuit against them for $2700. They just ammended their suit, raising it to $4000 (treble security deposit damages).
Is no heat a problem? You bet it is. But, as a landlord, I did everything I could to fix the problem as quickly as possible in a 125 year old building. Offering to pay for motel rooms isn't even required by law). They didn't follow the law, broke their lease, and acted in bad faith.
Can they win? You bet!
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Re: Landlord/Tenant Trial Next Week
by Katiekate (New York)
on January 25, 2015 @12:45
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Since you have documentation to prove you did everything as quickly as possible...and you have the written notice to terminate end of Dec. I think you will win.
But...I also think it will depend a lot on the location. Some places are so tenant friendly that the judges simply do not care about the facts. If you do those this I would appeal for sure.
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Re: Landlord/Tenant Trial Next Week
by Garry (Iowa)
on January 25, 2015 @14:44
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When you go to court, DO NOT bring up anything else regarding other complaints---either yours or theirs. Just the boiler problems, timelines, all your paperwork, and what you offered to compensate each tenant for. Is it possible to bring 1 or 2 of your current tenants to court as your witnesses ? (most judges will not accept notarized statements) If the Ts you bring, were happy with how you handled the situation, that will go a long ways in you winning the case. Can the heating company stand up for you, or are you on the outs with them, since they broke your boiler, costing you $25,000? If they broke it through their negligence, you should be suing them for the $25,000.
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Re: Landlord/Tenant Trial Next Week
by Nicole (PA)
on January 25, 2015 @15:06
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I'd say you're on shaky ground, depending what your time frames actually were.
You say the heating company was there every day before they needed to replace the entire boiler. Does that mean first no heat day until new boiler working was 9 days? Or was it 9 days from the time they needed to replace the entire thing? Years ago, I also had one crack and it was replaced in 24 hours ... perhaps luck of the draw that they were able to get there so quickly. My building was also a HUGE 150ish year old building ... I feel your pain.
COMPLETELY irrelevant that the other tenants didn't take you up on your offer.
Personally, I would have forgiven the rent for the entire month for everyone if it took 9 days during a cold snap with no heat. Your saving grace may be that you offered hotel rooms.
when did you give the notice to quit? how close to the move out date was the furnace actually working?
If you fooled around (doesn't matter if it was your fault, someone else's fault or no one's fault) for several weeks, I don't blame them for moving out. Not sure how long they are "required" to wait for you to fix something huge like the heating system ... you say you're fixing it but every evening they come home and it's still cold ... after a few days they are going to disbelieve you ... no matter if you are on top of it or not.
also, I think you are REALLY pushing it if you think the judge will rule in your favor on your claim because they failed to give notice in writing of the nonworking boiler.
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Re: Landlord/Tenant Trial Next Week
by Benny (UT)
on January 25, 2015 @16:51
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"I didn't know they were moving out. I didn't like her or her roommate, so I gave them a notice to quit at the end of December"
So you retaliated against the tenant for looking at some other warm place to move to by giving notice to quit. The tenants attorney will probably drive that point home to the judge. How did they break their lease, if you issue a notice to quit?
"They didn't follow the warranty of habitability law" the one who failed to follow the law was just you! Habitability is the landlords responsibility!
"they were supposed to give me written notice about the heat problem" You had notice the heating system was not working from the fact that other tenants complained about no heat!
"didn't give me proper notice before filing their security deposit suit" No one has to give you notice that they are suing you in a landlord tenant law suit?
Quit trying to play the 'Poor little landlord' card!
"The heating company was there every day. They determined that the autofill device needed to be replaced" This is something that could have been diagnosed day one, as it's part of a complete basic system check.
"They didn't follow the law, broke their lease, and acted in bad faith" They didn't follow the law? What Law are you referring to? They broke their lease? You gave them a 'notice to quit'. Acted in bad faith? Really, you are stretching it!
If the boiler cracked due to the failure of the auto fill valve not working, the boiler could have had water added manually by monitoring the system. Either way, an auto fill valve would be just a one day replacement, why nine days?
Maybe, just maybe this boiler was well past its prime and should have been replace years ago!
This is not about the boiler, its about you giving notice to quit as retaliation, failure to return security deposit (treble damages) and the fact that you did not like them ( I didn't like her or her roommate). They must have felt it, otherwise why all this.
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Re: Landlord/Tenant Trial Next Week
by Wilford (FL)
on January 25, 2015 @18:17
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"didn't follow the warranty of habitability law in which they were supposed to give me written notice about the heat problem.?
I am thinking you already knew about the heat problem.
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Re: Landlord/Tenant Trial Next Week
by MrDan (Georgia)
on January 25, 2015 @20:57
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Just my thoughts...
You have stated previously that you had trouble throughout November, that 'The boiler company was on site almost every day trying to fix it'. This post states 'The heating company was there every day'.
On November 20, you found out they had applied at another rental property. ‘I got a call on November 20th from a landlord'
You then issued a 'Notice to Quit' under Colorado law for December 31. The legal notice states;
Pursuant to §13-40-107, C.R.S., you are hereby notified by the undersigned owner that your tenancy of the land and premises described below is terminated as of ________________________ (date) at ____________ (time) and you are accordingly notified to vacate said premises and surrender possession thereof on or before said date and time.
You stated the tenant moved out on November 29. As you can see the notice to quit says to 'surrender possession thereof on or before said date and time' which your tenant complied with by moving November 29. They might not owe December rent under Colorado law as they vacated before December per the 'Quit Notice'.
You also stated the boiler was fixed November 28. So needed repairs have taken up to at least three weeks or more to complete. It took more than the nine days you have stated.
You say "They broke their lease, didn't give me proper notice before filing their security deposit suit, and didn't follow the warranty of habitability law in which they were supposed to give me written notice about the heat problem".". They also never notified me that it was affecting their lifestyle and didn't give me a deadline".
But you also state "I offered space heaters to all tenants, as well as hotel rooms". So you did know or should have known that all tenants lifestyles were affected by not providing heat "This past November we had a very cold period". How could you not know?
"I wound up replacing it late last month ($20,000)".
"I told them to replace it as quickly as possible ($25,000)" Why two different amounts claimed?
"a PITA tenant"..."I didn't like her or her roommate".
I believe you have let your emotions get the better of you and I'm sure there's more to the story on both sides.
You could have settled this for under $2000 and now face possibly paying $4000 plus court cost, and tenants attorney fees which could add another $2000, and do not forget your own attorney.
The bad part is that word will get around to your other tenants and that will also affect your bottom line if you wind up with multiple vacancies. Sometimes landlords are their own worst enemy.
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Re: Landlord/Tenant Trial Next Week
by John Brayton (Massachusetts)
on January 25, 2015 @21:50
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I reiterate the advice I gave you in December:
http://www.thelpa.com/lpa/forum-thread/328243/Tenants-Broke-Lease.html
Here's an updated version:
* They are suing for November's rent. They will undoubtedly win.
* They are suing for the security deposit, with 3x damages. It sounded to me like withholding for the broken window and cabinets was perfectly valid, but your withholding that amount after failing to provide a heated apartment in November might not fly. I don't know if those were the only reasons for withholding.
* You won't win your counter-suit.
Try to settle. Given the current state of affairs, I'd offer them $1200 and be willing to walk away giving them $1750.
I don't doubt that you're a good landlord and did everything you could to get heat fixed quickly. But frankly, it is not the job of a tenant or a judge to care about your intentions. You were unsuccessful and need to accept that.
John
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Re: Landlord/Tenant Trial Next Week
by Anonymous
on January 26, 2015 @18:46
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I offered to refund two weeks worth of rent for November, but asked for December's rent. I also offered to waive the repair costs and late fees. They refused. So now it's on to trial. I don't care what the legal fees are or how long it takes.
The heat is the landlord's fault. In Colorado, the landlord has to make a reasonable effort at fixing major problems. We did everything we could. But, again, the tenants can't just move out. They have to notify the landlord, the landlord has 2 weeks to cure, and THEN they can move it.
My lawyer said that there is no doubt the tenant is in the wrong. None.
But they could still win this case. But I'm not going down without a fight.
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Re: Landlord/Tenant Trial Next Week
by Anonymous
on January 26, 2015 @18:50
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I don't understand why you gave a thirty-day notice to quit at the end of December just because a landlord called to check a reference. (You also did not like them). Your notice seems premature. A while back another landlord wrote that he did the same thing, i.e., gave a notice to quit after a landlord checked a reference. Is this some common action that I'm not aware of?
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Re: Landlord/Tenant Trial Next Week
by Anonymous
on January 26, 2015 @20:04
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Please share the outcome with us once one is determined. I'm interested to see how the court will decide.
You acted emotionally, which was a mistake. You overreacted by lashing out at some dumb tenants, applying somewhere else, when you were really just upset about the boiler.
If you think the judge will hold the tenants to the same standard of knowledge regarding landlord tenant laws as you, you are mistaken. Tenants are generally treated as ignorant children by courts.
In any event, I wish you luck.
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Re: Landlord/Tenant Trial Next Week
by Daniel (CA)
on January 27, 2015 @03:10
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I offered motel rooms and space heaters to all the tenants. One tenant in a 2-BR unit took me up on it for one night.
To me this says it all and I hope you can prove it.
Did they return from the motel on their own?
How many space heaters were given out? Was this given to this tenant?
The only issue left is the 3X (treble security deposit damages). This is usually awarded only when a LL has no basis to withhold the SD at all. But if your lawyer advised you to withhold it, then that should be enough validity to avoid being penalized.
You state that the tenants did not give you proper notice that they vacated. So they were required to pay for December.
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Re: Landlord/Tenant Trial Next Week
by Anonymous
on January 27, 2015 @11:33
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The crux of the issue seems to be the language of your Notice to Quit. If you followed the sample provided by Mr. Dan above, using the "on or before" language you are SOL; tenant had your order to move on or before and they elected "before". If you used language requiring them to quit ON December 31, and if such language is supported by statute, then you can charge the tenant if they moved out before that date without proper notice and without paying for December.
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Re: Landlord/Tenant Trial Next Week
by Anonymous (CO)
on January 30, 2015 @08:09
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Well, here's what happened. The judge rejected their warranty of habitability claim and said I did a commendable job of fixing the heating problem. He also rejected their request for treble damages.
But said that they didn't owe December's rent because I terminated their lease (effective at the end of December). Since I used a notice to quit from the eviction law firm that I used, I contacted them. The lawyer who I talked to (one of the partners) said that the small claims court judge was wrong. We will be filing an appeal.
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