No collection of deposit?
October 25, 2010 11:53 AM Subscribe
Need some advice on an apartment lease that may/may not be valid.
The situation goes that my girlfriend and I moved into an apartment with another individual in March 2010. He moved out in April 2010 and the landlord had us sign a new lease with him, however he: never collected a deposit, did not clean/paint the walls, and there were no repairs made in a timely fashion after our first occupation after notification to him (the bathroom sink does not have hot water, and the air-filter on the tenant-inaccessible furnace needs changed).
Would this negate the lease into a de-facto Month to Month if he didn't ever collect the deposit but allow us implicit possession of the premises? The lease states that we are not to have possession of the premises until first month and deposit are paid & the old tenant (the individual we moved in with) was still in the location when we moved in?
The situation goes that my girlfriend and I moved into an apartment with another individual in March 2010. He moved out in April 2010 and the landlord had us sign a new lease with him, however he: never collected a deposit, did not clean/paint the walls, and there were no repairs made in a timely fashion after our first occupation after notification to him (the bathroom sink does not have hot water, and the air-filter on the tenant-inaccessible furnace needs changed).
Would this negate the lease into a de-facto Month to Month if he didn't ever collect the deposit but allow us implicit possession of the premises? The lease states that we are not to have possession of the premises until first month and deposit are paid & the old tenant (the individual we moved in with) was still in the location when we moved in?
This is not legal advice, and I am not your lawyer. Your profile says Portland, but who knows if that's current. In any event, you should probably call your local tenants' rights group; every jurisdiction seems to have one, and the law varies considerably. However, these are not the kinds of provisions that typically would invalidate your lease; the payment of a deposit and first month's rent are provisions to protect the landlord, and typically a party can waive the terms in a contract written for its benefit. Similarly, because you were already in physical possession of the property, I expect that a court would view the substituted lease as a mere formality, and the fact that your roommate (the nominal lessor) was in joint possession with you is going to undercut the argument that your lease should be invalidated. Same thing with not painting the walls, given that you were already living there.
I very much doubt that your lease is defective on the facts you've provided, but do check with your local tenants' rights group.
Again, this is not legal advice, and I am not your lawyer.
posted by Admiral Haddock at 12:05 PM on October 25, 2010
I very much doubt that your lease is defective on the facts you've provided, but do check with your local tenants' rights group.
Again, this is not legal advice, and I am not your lawyer.
posted by Admiral Haddock at 12:05 PM on October 25, 2010
Response by poster: What is your end-goal?
To vacate the premises with a 30 day notice.
What is your jurisdiction?
Portland, OR
Also, the last sentence doesn't quite make sense. Please clarify?
The previous lease-holder was still living in the apartment when we signed the new lease. The lease states that "premises designated for lease is vacated by the prior tenant."
posted by wcfields at 12:05 PM on October 25, 2010
To vacate the premises with a 30 day notice.
What is your jurisdiction?
Portland, OR
Also, the last sentence doesn't quite make sense. Please clarify?
The previous lease-holder was still living in the apartment when we signed the new lease. The lease states that "premises designated for lease is vacated by the prior tenant."
posted by wcfields at 12:05 PM on October 25, 2010
Again, not legal advice, and I am not your lawyer, but I expect you waived the benefit of having the prior tenant vacate the premises when you moved in and took possession knowing that someone else was already living there. That was, what, 7 months ago, and you've remained in possession the whole time? Did you just move in with a stranger, or was this someone you know? A bit more of the facts would be helpful. I think you would probably have more luck documenting the necessary repairs (particularly the lack of hot water and the problems with the boiler) and arguing that the landlord has breached the warranty of habitability (whatever dimensions that has in Portland--I don't have that information).
Again, not legal advice, and I am not your lawyer.
posted by Admiral Haddock at 12:18 PM on October 25, 2010
Again, not legal advice, and I am not your lawyer.
posted by Admiral Haddock at 12:18 PM on October 25, 2010
Admiral Haddock is correct. However, you do not have a deposit on file... so maybe just take a chance and give written 30 days notice? Do not give an explanation re: repairs or complaints - just state you are going and go.
PS - document the condition of apt upon move-out.
Otherwise, report the hot water issue to the relevant authority. I believe you are out of luck on the painting. I don't know about the furnace.
posted by jbenben at 12:20 PM on October 25, 2010
PS - document the condition of apt upon move-out.
Otherwise, report the hot water issue to the relevant authority. I believe you are out of luck on the painting. I don't know about the furnace.
posted by jbenben at 12:20 PM on October 25, 2010
Would this negate the lease into a de-facto Month to Month if
I am not any sort of lawyer and you need to contact your local tenant's union. I have been someone who has written and lived under leases for the large part of my life so this is just my "common sense about leases" advice which is not intended to be more binding than what smeone copetent in your jurisdiction would tell you. Generally speaking the lease isn't negated if some of the terms aren't met, it mostly means that you need to talk to the leaseholder about working out whatever discrepancies there might be between the lease and your situation. So
- the lease states no one else is living there, but in fact you were living there and didn't move out and move back in, correct? Signing a new lease with the landlord when you are both very clear what the actual situation is [i.e. you were not confused that your old roommate was still there, everyone knew this] is not going to be a good position from which to argue for a negated lease
- I don't get the security deposit. Was there an old one that got held over? I don't think in a situation where you got out BETTER than the lease implies is regulation is going to be good grounds for breaking a lease.
- painting walls isn't necessarily something that is standard and you and your landlord should have had a conversation about your expectations in this regard, not treated it like something you expected but never mentioned. Usually apaprtments are painted when they are vacated, not when people are living in them.
- the water issue is a lease issue and needs to be addressed as such but just not having hot water is not enough to automatically change your living/lease situation, you need to work this out, through channels in whatever the appropriate way is.
tl;dr you need to have conversations with your landlord about these issues and/or talk to a tenant's union rep or a lawyer before you go ahead and do anything like presuming you are a month to month tenant. More to the point, clarifying why you'd like to move out [better option? sick of no sink hot water? other issues] would be helpful in sussing out what actual options may be available to you. THAT said, if there's no deposit, is there some reason you're not just going to break the lease and move out?
posted by jessamyn at 12:36 PM on October 25, 2010
I am not any sort of lawyer and you need to contact your local tenant's union. I have been someone who has written and lived under leases for the large part of my life so this is just my "common sense about leases" advice which is not intended to be more binding than what smeone copetent in your jurisdiction would tell you. Generally speaking the lease isn't negated if some of the terms aren't met, it mostly means that you need to talk to the leaseholder about working out whatever discrepancies there might be between the lease and your situation. So
- the lease states no one else is living there, but in fact you were living there and didn't move out and move back in, correct? Signing a new lease with the landlord when you are both very clear what the actual situation is [i.e. you were not confused that your old roommate was still there, everyone knew this] is not going to be a good position from which to argue for a negated lease
- I don't get the security deposit. Was there an old one that got held over? I don't think in a situation where you got out BETTER than the lease implies is regulation is going to be good grounds for breaking a lease.
- painting walls isn't necessarily something that is standard and you and your landlord should have had a conversation about your expectations in this regard, not treated it like something you expected but never mentioned. Usually apaprtments are painted when they are vacated, not when people are living in them.
- the water issue is a lease issue and needs to be addressed as such but just not having hot water is not enough to automatically change your living/lease situation, you need to work this out, through channels in whatever the appropriate way is.
tl;dr you need to have conversations with your landlord about these issues and/or talk to a tenant's union rep or a lawyer before you go ahead and do anything like presuming you are a month to month tenant. More to the point, clarifying why you'd like to move out [better option? sick of no sink hot water? other issues] would be helpful in sussing out what actual options may be available to you. THAT said, if there's no deposit, is there some reason you're not just going to break the lease and move out?
posted by jessamyn at 12:36 PM on October 25, 2010
Response by poster: THAT said, if there's no deposit, is there some reason you're not just going to break the lease and move out?
It's more that we don't wish to be taken to small claims court. We are going to pay November rent and give 30 days notice to the landlord.
posted by wcfields at 1:21 PM on October 25, 2010
It's more that we don't wish to be taken to small claims court. We are going to pay November rent and give 30 days notice to the landlord.
posted by wcfields at 1:21 PM on October 25, 2010
Looking at this from a non-attorney standpoint, I wonder why you are focusing on obscure reasons to "break" the "lease." Let's start with why you want to move out and progress to the ramifications. First, do you want to move simply because some better situation came up or are the living conditions intolerable? Are you looking for loopholes or do you feel you have a rational argument for why the landlord should just let you leave?
If you feel your living conditions are intolerable, so state to your landlord and give him/her a short, reasonable length of time to cure. If s/he fails to cure, move out knowing you have given reasonable opportunity to overcome the problem. If you are just looking for an excuse to leave, tell the landlord that you don't believe you have a valid lease, that the terms of the lease were not fulfilled and you are out of there.
In either case, the landlord may choose to take you to court or just shrug shoulders and move on. As has been pointed out above, the things you mention do not seem like the kinds of things a court wants to hear in order to side with you. The landlord may, however, figure it's just not worth the hassle to chase you down to fight about furnace filters and calender dates.
If you are even a little uncomfortable with the advise you have gotten here (and you should be) you need to get legal advice right there in your own home town.
posted by Old Geezer at 1:41 PM on October 25, 2010
If you feel your living conditions are intolerable, so state to your landlord and give him/her a short, reasonable length of time to cure. If s/he fails to cure, move out knowing you have given reasonable opportunity to overcome the problem. If you are just looking for an excuse to leave, tell the landlord that you don't believe you have a valid lease, that the terms of the lease were not fulfilled and you are out of there.
In either case, the landlord may choose to take you to court or just shrug shoulders and move on. As has been pointed out above, the things you mention do not seem like the kinds of things a court wants to hear in order to side with you. The landlord may, however, figure it's just not worth the hassle to chase you down to fight about furnace filters and calender dates.
If you are even a little uncomfortable with the advise you have gotten here (and you should be) you need to get legal advice right there in your own home town.
posted by Old Geezer at 1:41 PM on October 25, 2010
Response by poster: If you are just looking for an excuse to leave, tell the landlord that you don't believe you have a valid lease, that the terms of the lease were not fulfilled and you are out of there.
This, we have found a better situation due to the high cost of the rent and will probably be unable to stay in the apartment anyway.
posted by wcfields at 1:52 PM on October 25, 2010
This, we have found a better situation due to the high cost of the rent and will probably be unable to stay in the apartment anyway.
posted by wcfields at 1:52 PM on October 25, 2010
Best answer: Oh. You won't be able to afford it!
Then what about contacting your landlord respectfully and explaining that you have a serious unexpected financial hardship and must move-out?
Landlords very much appreciate 30 days notice vs. a tenant that clings to their apt for months without payment. Evictions are expensive. The landlord would very much rather you move-out than live there for free until he can win eviction, a process that takes months.
Just talk to him and plead financial hardship.
Do not mention the repairs, that would counter-productive.
posted by jbenben at 2:59 PM on October 25, 2010
Then what about contacting your landlord respectfully and explaining that you have a serious unexpected financial hardship and must move-out?
Landlords very much appreciate 30 days notice vs. a tenant that clings to their apt for months without payment. Evictions are expensive. The landlord would very much rather you move-out than live there for free until he can win eviction, a process that takes months.
Just talk to him and plead financial hardship.
Do not mention the repairs, that would counter-productive.
posted by jbenben at 2:59 PM on October 25, 2010
This thread is closed to new comments.
What is your jurisdiction?
Also, the last sentence doesn't quite make sense. Please clarify?
Thanks!
posted by jbenben at 11:59 AM on October 25, 2010