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My Former Landlord Won’t Return My Security Deposit Or Call Me Back

My Former Landlord Won’t Return My Security Deposit Or Call Me Back

My Former Landlord Won’t Return My Security Deposit Or Call Me Back

Here is the situation with my previous landlord:

He gave me a verbal agreement that he would return the security deposit ($1500) to me within 14 days (this would have been July 15) but under the lease he had 18 days (July 19th). Upon moving out and returning they keys he was unresponsive and did not return calls or emails. After almost 2 weeks had passed we received an email saying he found scuff marks on the floors and walls and that he would get back to us soon with how much he would need to withhold for repairs.

Given these scuff marks pre-dated our time in this apartment, we sent photographs (with time stamps proving the date the photos were taken) that indicated the poor condition of the floors and scuff marks on the walls and also reminded our landlord about the normal wear and tear clause of the lease and cited several articles that point out that scuff marks fall into this category.

We sent these emails to him on July 12, responding immediately to his email about the scuff marks. We have not heard from him since. On July 19th when neither the security deposit nor the balance of the deposit with an itemized list of repairs was returned, I called Reginald to inform him that since the deposit had not been returned we were taking action to file a claim in small claims court but that we would prefer to settle this out of court.

He did not answer, so I left him a message with these details. I called him again the following day (from a different phone in case he was screening our calls) and left him another message with the same details. On July 20th my roommate and I drafted a formal demand letter (based on advice from the SF tenants rights website) and mailed him a hard copy via certified mail.

In this letter (attached) we gave him until August 4th to return the security deposit (which we would expect in full or very nearly full since the damage was not due to us). We said if he doesn’t return the deposit, we would sue him for the $1500 deposit plus an additional $1500 for illegally withholding the deposit.

Given his unresponsiveness, we don’t expect to hear from him (although we know the letter was signed for and received) and are expecting we will have to take him to court. Any advice you could give on our situation is greatly appreciated.

We are also worried that the landlord may be bankrupt or insolvent – our neighbors informed us they received a notice that he was $826,000 in debt on out building and to not pay him any money. Is there anything we can do if this is the case? Or do we just have to give up on our deposit?

The only mistake you made (besides renting the apartment from this schmuck in the first place) was that you misquoted the statutory damages in your letter. You should sue the landlord for $1,500.00 plus $3,000.00 in statutory damages (California Civil Code § 1950.5(l)) because he withheld your deposit in bad faith. In many cases a small claims court will not award the statutory damages for one reason or another, but in your case the facts, as you state them, prove that the landlord refused to return the deposit based on a pretext that was a lie.

Sue him for $4,500.00. Don’t worry collecting the money. That part comes after you get a judgement. BTW, the small claims limit in California just increased to $10,000.00.

Pick up a copy of Everybody’s Guide to Small Claims Court in California, by Ralph Warner,  Nolo Press. You can find Nolo Press Guides in most larger bookstores or buy one online from the publisher.

If the landlord files for bankruptcy after you get a judgment, California Civil Code §1950.5(d) states, “Any security shall be held by the landlord for the tenant who is party to the lease or agreement. The claim of a tenant to the security shall be prior to the claim of any creditor of the landlord.As I pointed out in an earlier “Tenant Troubles,” your claim goes to the top of the list in bankruptcy court.

The Tenants Union website is a great resource, but nothing beats bringing your documents to them and getting live counseling from a well-informed volunteer.

Jeez, Louise, if every tenant in California wrote to his or her state legislators every frickin’ time a landlord ripped off a security deposit, maybe, just maybe, the law could be re-written to reflect proactive preventions enacted by many other states.

So try this readers, paste this article into an email and demand all of my proposed changes to the law (except the small claims limit increase), and send it to: Mark Leno, Tom Ammiano, Fiona Ma, and Leland Yee.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

How Do I Get My Deposit Back If My Building’s In Foreclosure?

How Do I Get My Deposit Back If My Building’s In Foreclosure?

How Do I Get My Deposit Back If My Building’s In Foreclosure?

My partner and I live in a non-rent-controlled unit (built in 2002, a single unit in a large condominium complex) in San Francisco for two years. After the first year, our lease defaulted to a month-to-month tenancy. Several months ago, our landlord let us know that he was fighting foreclosure and attempting to have his mortgage restructured.

We have kept in touch with him since then, checking to make sure that he is still the owner and that we should, in fact, send our rent checks to him. He let us know prior to the first of July that he was definitely going to be foreclosed, and he was awaiting some kind of bankruptcy ruling “any day now”. He also let us know that he would be leaving the country for several months and that we should send our rent checks, addressed to him, to his relative’s address. He also instructed us to seek tenancy assistance or maintenance from his real estate broker, with whom we worked when we first moved into the unit.

I am worried that the ownership is going to change and we won’t be notified. Should we just keep paying rent to the landlord, even though it seems like the fate of our unit is in limbo? What rights do we have as tenants? Also, how on earth are we going to get our security deposit back?

This is a confusing issue for tenants. No doubt you’ve heard stories about tenants who continue to pay rent to a defaulting landlord only to be socked with a three-day notice to pay or quit from the bank who took over six months ago.

You won’t necessarily be noticed about a change of ownership when a property is foreclosed, but that doesn’t mean you can’t find out. Notices of default and foreclosure sales are a matter of public record.

In San Francisco you can check property records online at the Assessor-Recorder’s website. Property records are now managed by CRiis.com. There is no input on the site for addresses so I suggest you get the APN (Assessor’s Parcel Number, comprising the lot and block numbers) from the SF Assessor-Recorder’s website.You can check the status of the unit from time to time. You should also know that the there is a backlog inputting the latest information. If you think you need up-to-date records , you should probably visit the Assessor Recorder’s office at City Hall.

Absent evidence that the landlord is not the owner of the property, keep paying your rent to him. Get receipts and/or send the rent via certified mail. Lately I’ve been hearing from tenants who stop paying rent when they find out the landlord has defaulted. They don’t pay after service of a three-day notice and find themselves in a losing unlawful detainer lawsuit.

Your rights without rent control are diminished significantly, but you do have Rent Ordinance §37.9D. Essentially the ordinance provides that you cannot be evicted by person or entity who took title through foreclosure, except by one of the 15 “just causes” of the Rent Ordinance. It also requires the person or entity who took title to notify tenants of that fact within 15 days.

The banks and owners will all tell you that your security deposit is, poof, gone, up in smoke. Not true. California Civil Code §1950.5 is clear on this point. I should say clear for lawyers. It’s actually pretty convoluted.

Essentially Civil Code §1950.5(h) provides a process by which the landlord either transfers the security deposit to the new owner or returns the deposit minus any deductions to the tenant. If that doesn’t occur, and it never does in a foreclosure, Civil Code §1950.5(j) is clear: “In the event of noncompliance with subdivision (h), the landlord’s successors in interest shall be jointly and severally liable with the landlord for repayment of the security[…]” You may have to sue both the landlord and the bank, but the bank is on the hook.

So, if you check the property records on a regular basis and continue to communicate with the landlord’s agent, you should be fine for awhile. Frankly, if I was in your situation, I’d start looking for a new, rent-controlled, unit.

For a more comprehensive evaluation, go to the San Francisco Tenants Union.

Call the Tenant Lawyers now for a free consultation.
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Foreclosure: Banks Too Big to Fail, Too Big to Obey the Law

Foreclosure: Banks Too Big to Fail, Too Big to Obey the Law

Foreclosure: Banks Too Big to Fail, Too Big to Obey the Law

A well-organized gang blatantly violates the law for the sole purpose of lining their pockets. What? Are the Sopranos back in business? They may not use terms like “vig” or “nut”, but the banks are foreclosing as zealously as loan sharks. And they’re throwing innocent tenants out of their houses in the process.

During the last few weeks came revelations that banks have been foreclosing on properties that they may not even own!

None of this comes as any surprise to tenants and tenants’ rights organizations who have been complaining, since the meltdown, about banks’ illegal practices, including tenant evictions.

In May 2009, Congress passed the Protecting Tenants at Foreclosure Act which required, at minimum, a ninety-day notice to vacate for tenants without a term lease. Banks have been routinely violating the Federal law since it passed.

Even in San Francisco, with just cause eviction protection (foreclosure is not a just cause), we defended tenants who had already provided the bank (Wells Fargo) with copies of their leases! The bank’s attorneys filed an eviction anyway only naming the owner who didn’t live there (they had been informed of that too), but still seeking to remove the tenants from all of the units.

In May 2010, Tenants Together released its 2010 Report: California Renters in the Foreclosure Crisis. In late June, California Attorney General, Jerry Brown, announced that he would investigate whether tenants rights are violated in foreclosures. This month, the Governator signed Senate Bill 1149 which will help tenants who defend improper bank evictions maintain their credit ratings and require banks to inform tenants of their rights with an eviction notice.

Will these new requirements help? Maybe, but if San Francisco’s law requiring landlords to notify tenants of their rights upon placing a building for sale is any indication, the answer is: Not much. Most of the banks’ soldiers in the field, real estate agents and brokers, can’t read at all, let alone read and understand the law. And they don’t give a shit. If their bosses can act with impunity, why can’t they? Think back to why we got here in the first place.

The only real legal solution to this mess is to pass a statewide just cause eviction law. Even Tony Soprano’s home state, New Jersey, allows eviction for 16 just causes and foreclosure is not one of them.

What can you do if your building is sold in foreclosure?

Occasionally tenants will receive a notice of default meant for the owner. If you do, you have an advantage because you can begin to check public records to see if the there will be a foreclosure auction.

When you know the sale is final, stop paying rent to the owner. Remember the owner has been collecting your rent all the while he hasn’t been paying his mortgage. He needs the money and he will lie about the foreclosure to keep collecting your rent as long as he can. I’ve seen several cases in which the owner still wanted to collect rent in exchange for writing up new leases. This may sound attractive, but if a bank can prove you negotiated a sweetheart lease in anticipation of foreclosure, you could lose rights you may have to stay. Besides, it’s fraud.

Don’t spend the rent you withheld. After foreclosure, banks don’t often inform tenants how and where to pay rent, even if tenants ask. After a few months, they simply serve a three-day notice to pay or quit. If you don’t have the money to pay them you can be legally evicted.

Don’t communicate with the “representative of the bank” without proper notice. Often the first inkling you’ll have that the property is bank-owned is when you see a “representative” skulking around the building. He wants to ask you questions about your tenancy. He’s a real estate thug. He will want to talk about a “cash for keys” program and use veiled threats that you could be evicted if you don’t go along. Get his identification and as much information as you can about him and his employer. You can give him a copy of your lease if he will sign a receipt. You can also mention you know your rights as a tenant. Then politely inform him that you will call the cops if he ever shows his face again without proper notice pursuant to the law. In California it’s Civil Code section 1954.

Gather information. Try to find out who you can contact at the bank. It’s usually impossible because, like all experienced con artists, banks don’t answer the phone. Try to find out which attorneys represent the bank. If you happen to be dealing with a representative and ask him where to pay the rent, he might reply vaguely, “Oh don’t worry about that, the lawyers will send you something.” That’s the time to ask, “Who are the lawyers?” You need to be ready if you receive a notice to quit.

If you receive an unlawful notice to quit, don’t panic. If you live a a jurisdiction like San Francisco or Santa Monica that has a rent ordinance and eviction only for just cause, write a letter to the attorneys on the notice and point that out. Also tell them that if they proceed with an eviction you will file a complaint against them at the State Bar.

If you have a lease and you don’t live in an unenlightened city, send the lawyers a copy and tell them you have the right to stay until the lease expires under Federal law or 90 days whichever is longer. Once again, if they try to evict you illegally you will file a complaint with the State Bar.

Always communicate in writing. When I say “tell” I really mean write a letter.

Report abusive real estate agents to the local board or the California Department of Real Estate. When their licenses may be on the line, sometimes realtors will back off.

You get your security deposit back. Just because the bank did not collect the security deposit from the owner does not absolve it of its legal obligation to refund your security deposit in California. Civil Code section 1950.5(j) is clear that the landlord’s successor in interest is liable for your security if a transfer of the deposit has not be made to the new owner according to  Section 1950.5 (h). In a foreclosure scenario that transfer isn’t made because the old owner defaulted.

The foreclosure mess is far from over. It is time for Just Cause Eviction to be enacted statewide. The best thing you can do is to support Tenants Together with your money or your time.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

Your Landlord Is Lying To You, Why Are You Lying FOR Him?

Your Landlord Is Lying To You, Why Are You Lying FOR Him?

Your Landlord Is Lying To You, Why Are You Lying FOR Him?

Nov. 1, 2008 – Brad, Carmen, and Carole signed a 1 year lease for a single family house built in 1952 in San Francisco.

Aug. 1, 2009 – Carmen is laid off and posts an ad on Craigslist that I answer and then replace her on the 1 year lease.

Oct. 1, 2009 – Carole moves in with her boyfriend and we find a girl named Alison to replace her on the lease as well.

Nov 1, 2009 – The original 1 year lease expires and Brad, Alison, and I opt to stay here on a month to month basis.

May 1, 2010 – Alison moves out to go away to college and a girl named Valerie takes over her month to month status.

Sept. 16, 2010 – The landlord emails us saying we must vacate by Nov 1, 2010 and suggests using our deposits as rent.

Sept. 17, 2010 – I respond telling her that’s a No-Fault Eviction and that he will need to pay me and Brad $4,500 each.

Am I wrong or right about my interpretations of Prop H? I have been here a little over 1 year and Brad has been a little over 2 years.

Also…

A bank employee had come to the house several times the past few months asking if the landlord lives here and I gave purposefully vague answers and then called the landlord who asked that I lie to them next time and say she does live downstairs but was out that day.

This morning I was awakened by the mailman ringing our bell and I threw on my robe and answered the door and I had to sign my name for the envelope that I assumed was our eviction notice. However, I forgot to check the name on it and, after opening it, found it was addressed to the landlord and contained a document that is titled “NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST”. I assume that means this place is in foreclosure.

When I mentioned the bank employee in my email to the landlord about relocation fees he called and said the bank has nothing to do with our eviction and that he is just having family from Hong Kong move to the US and needs a place to stay.

He was lying to the bank that he lived here and I think he may be lying about his family moving in too but I don’t think it even matters, no?

Am I really being “evicted”? I thought that was a legal term like bankrupt or divorced and is not the same as being asked to leave when a lease expires. Eviction is something a sheriff and a locksmith do, no? What is the point of the lease at all if the landlord can almost never ask you to leave when it expires without paying you? And what does month-to-month really mean if both parties can’t just up and walk away at a month’s notice?

I read the email thread attached to your question and decided to change the names of the members of your household because I don’t want the landlord to get any ideas if he reads this.

Your analysis of the situation is fairly accurate, but let’s review:

The fact that you live in a single family dwelling built before 1979 means that your tenancy is entitled to the protections of the “just cause” provisions of the San Francisco Rent Ordinance. In other words, you cannot be evicted unless the landlord can demonstrate one of the fifteen just causes under Rent Ordinance §37.9(a).

Your landlord’s email (which you also sent me but in the interests of brevity we did not include in this article) demonstrates that he doesn’t understand the Rent Ordinance when he claims that your lease is expired and that he has the right to ask you to leave. This is a common misconception harbored by landlords and tenants in San Francisco because it would be true without rent control.

If you study Rent Ordinance §37.9(a)(8), the owner-move-in (OMI) just cause, you’ll find that the owner cannot evict you to allow a relative to move in unless they live in the building too.

If the owner deeds the relative a 25% ownership of the house (very unlikely, given that it may be in foreclosure), then the relative (as an owner) can evict your household base on the OMI just cause. Then you and Brad would be entitled to relocation payments, as outlined in Rent Ordinance §37.9C. This year you’d get $5,101.00 apiece assuming you have no disabilities and neither of you is over 60 years old.

The “eviction notice” you received by email from your landlord could never support an unlawful detainer action, a lawsuit filed in Superior Court to formally evict tenants and thereby receive the court’s permission to get the sheriff to kick them out. So, no, you are not being evicted in the formal sense of the word.

How can the landlord evict you? Because you live in a single family dwelling (a house or condominium) and you moved in after 1995, your tenancy is exempt from the annual allowable rent increase section of the ordinance. The landlord can raise your rent as much as he wants as long as he can make a case that he didn’t increase the rent just to evict you. If you don’t pay the increase, the landlord can evict you for nonpayment of rent.

Given your recent interactions with the landlord, I think it would be tough for him to prove that he raised the rent in good faith, without ulterior motive. But you should understand that raising the rent could be the next gambit.

The next time a “bank employee” comes by the house, tell them politely that if they show up again, you’ll call the cops. They have no right at all to bother you if they don’t own the property. If they do own the house, they still need a 24-hour notice to inspect pursuant to California Civil Code §1954. Under that provision of the law, they would not have the right to “inspect” in order to grill you about the landlord’s whereabouts.

If anyone stops by to inquire about the property, always ask them for their ID before you kick them out. You never know who these jokers could be. They could be casing the joint to burglarize it.

Your landlord is probably a liar. This is could be a desperate attempt to empty the house to try to make a last ditch effort to sell it. Your landlord doesn’t have any problems lying to you. I hope you would never consider lying for him.

In this case, if you led the bank to believe that the landlord lives with you, the bank will claim that you are not tenants, but lodgers, when they come to evict you after foreclosure.

It may not be true and the law doesn’t support the premise, but the banks don’t care about the law.

I’ve written about this over and over. Your relationship with your landlord is not personal, it’s simply a business transaction. What if you were my client and I asked you to lie to the bank about the amount you paid me for my services? You’d think I was a sleazy lawyer who should be reported to the State Bar. And you’d be right.

Tenants: Never, ever lie for your landlord!

Call the Tenant Lawyers now for a free consultation.
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Hey, Landlord, Show Me Your Credit Report

Hey, Landlord, Show Me Your Credit Report

Hey, Landlord, Show Me Your Credit Report

I can vividly recall an afternoon in the late 1980s when I was apartment hunting. I went to an open house for a fairly nice one-bedroom in the Inner Richmond, large with a garage, $750 per month (not cheap then). I particularly liked the big working fireplace.  There were a few other people looking at the place, so I was ready. I told the landlord I’d like to fill out an application.

I was just about to dig the wad of C-notes out of my wallet to seal the deal. In those days showing up with enough cash for first, last and deposit usually got you to the head of the line.  I was shocked when the guy asked me for thirty bucks so he could run a credit report. “Are you fucking nuts?” I asked. “Do you actually expect me to pay you to get on your fucking list?” The other folks were getting nervous. When he replied that he did, I walked out and without much trouble found another place, just as nice. Those days are long gone.

Last week, my column, Tenant Troubles in the SF Appeal was entitled, “My Landlord Says He’s Bankrupt, So How Do I Get My Deposit Back?” I couldn’t contain my contempt for the landlord because he seemed to be joyously bankrupt, taunting the tenant, “Neener, neener, neener, you can’t get your security deposit!” It’s the taunt of a greedy landlord, no longer able to play with monopoly money and on his way down from Boardwalk to Mediterranean Avenue.

Since the mortgage meltdown, I hear from more and more tenants who find that their buildings are in foreclosure or close to foreclosure. The landlords are scrambling to squeeze every last dime before the buildings slip from their hands. They continue to collect rent, even after the building is owned by the bank. They refuse to refund security deposits. Even the banks claim (illegally) that they do not have to refund security deposits. Last week I pointed out that a subsequent owner is usually on the hook for security deposits. I have already proposed reforms to current California law to penalize owners who arbitrarily refuse to refund them.

There is another troubling and increasingly common scenariotenants who have recently rented from a landlord only to find that he’s in foreclosure. That got me thinking.

You show me your credit report and I’ll show you mine.

California Civil Code § 1950.6 specifically allows landlords to check tenants’ credit information and references. It also allows them to charge a tenant up to $30 with CPI adjustments from 1998. I think the typical charges are about $35 these days. Of course the rationale for landlords is that they want to be sure that tenants can and will pay the rent.

I never understood the logic because I know that in real life most tenants understand that you pay your rent before you pay the Macy’s bill. However, there are a growing number of landlords who collect rent and don’t use it to pay the mortgage! The law has no provision allowing tenants to find out if the landlord is a deadbeat!

Given the current financial crisis, it’s time to revise Civil Code § 1950.6 to allow tenants to get landlords’ credit reports. The law should require reciprocity. In other words, a landlord should not be able to get a tenant’s credit report unless he provides one for himself.

These days, tenants need to know if the landlord is qualified to rent his overpriced dump to them.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060