We lived in San Diego, California. We recently terminated our lease early (5 weeks early) on April 1, to move closer to aging parents in another county.

We gave 38 days notice (February 22) and the landlord let us know that we were responsible for the rent until May 7 (end of the lease). We were legally bound to that unless he found another tenant. All good so far.

We moved our stuff on April 1 and returned April 2 to spend the day detailing the place. We did a great job, by the way. He and his wife did the walkthrough and said the place looked great. They cut us a check for the security deposit minus $425 for the rent for the first week of May. Still good.

On April 20, I was in San Diego and drove by the old place. I found it occupied by a new tenant.

I emailed the former landlord and detailed the amount of prepaid rent we were owed. Since I didn't know when the new tenant moved in, I asked for the refund from the day I discovered it was rented, April 20- May 7 inclusive. He wrote back that he'd been out of town the previous weekend and that the unit was empty when he had left and that he'd just returned. As if it was a surprise to him, too.

He said he would give me a check for the rent, minus a list of expenses.

I disagreed that he was due expenses. I asked (in writing) when the new tenant had moved in. He didn't answer (in his responses) and wouldn't provide any supporting documents for the expenses he listed. We went back and forth by email. He got increasingly hostile. In his last email, he said that he was within his rights to have kept the entire deposit (true, there is a clause for forfeiture of the security deposit in the event of early termination). He told me that I didn't know the law and that we had a binding agreement and that now he would interpret that in the "strictest" sense. This meaning, he was now going to keep all the prepaid rent in lieu of the "forfeited" security deposit.

We also found out through our research that the new tenant had actually moved in on April 16.

Is he right? I'm no lawyer, but it doesn't make sense to me at all that he would be able to do that. After all, he had already refunded our security deposit minus appropriate deductions (May rent) for the remainder of the lease.

It's not so much what the law is, but what the lease states. He may or may not be within his rights. But the real key is, if you want your money back you will have to sue. By the same token, if he wants any more money from you, he will have to sue.

So you need to decide whether its worth your time to sue or wait until he sues you then countersue.

It doesn't at all matter when the new tenant moved in. The question you should be asking is when the new tenant's lease began. Your ex landlord should be able to determine this by simply referring to the new tenant's lease.

The lease states that if the tenant breaks the lease early then they are responsible for all rents until the end of the lease and they forfeit the security deposit.

We paid the rents in advance up to the end of the lease, so we're good on that front. At the walkthrough, they cut us a check on the spot for the security deposit. I thought that meant that the landlord didn't exercise his option re: the security deposit.

My question is whether he can return a security deposit and THEN , when the former tenant discovers that the place has been re-rented before the lease expires, calls the landlord on double-dipping (taking rent for one property from two tenants at the same time). Can the landlord then simply say he changed his mind and is keeping the rent money since he was allowed to keep the security deposit, but didn't before. Does that make any sense?

It doesn't sound fair or ethical but it may not be illegal. So we are back to what I said. If you want to call him out on it, you have to sue.

P.S. please use the Answer options, not comments for follow-up questions or info.

The issue is why did you actually "break the lease" you paid though the end of the lease, even if you moved out early.

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Originally Posted by Fr_Chuck

The issue is why did you actually "break the lease" you paid though the end of the lease, even if you moved out early.

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Chuck makes a good point. Since you paid through the end of the lease and you gave sufficient notice (right?) that you were terminating the lease. Then there really was no break. A break would have occurred if you tried to end the lease prior to its termination. So, he was not allowed to keep the security anyway. All he really agreed to was to take the balance of the rent out of the security. He did not have to do so. He could have forced you to pay until the end of the lease, and then waited the legal limit to return the deposit.

Now, if he did lease the property prior to the end of your lease, you could accuse him of double dipping. In which case he tells you that he is keeping the deposit for breaking the lease. So he might have to refund the rental you bad from when he signed the new tenant, but he keeps all your deposit. So it may be a wash.

He refused to provide that info

Fr_Chuck: "The issue is why did you actually "break the lease" you paid though the end of the lease, even if you moved out early."

OK, better get a snack to eat while reading this. You'll be here a while.

Chuck,

The Why

We had a good place available nearer to my aging parents (about 40 minutes closer) and we decided to grab it. I thought a few weeks wouldn't make a difference to a landlord with whom I'd always had good faith dealings.

I knew we could be held responsible for the remaining rent, but this was OK and I thought it was a good faith gesture on my part to move early so 1) give him a reasonable time in which he could do some upgrades before a new tenant moved in and 2) not lose as much rent while doing those upgrades. I had the finances to do that and he'd been a good landlord. My priority was to get up to the new place and have access to my aging parents when they needed me. That's been proved to be worth the money already.

The landlord indicated no interest in keeping the security deposit, although I would've understood if he had done so at the outset and I would've been OK with that. But he cut me a check at the walkthrough. Instead of having me write a check later for the first week of May, he opted to just write a smaller check from the security deposit to cover that. He said he would return that portion if he rented the place before the lease expired. That was fine, too. I didn't really expect that he would find a tenant until then anyway, and never expected to get my rent back.

The Trouble

Where we ran into trouble is when I happened to be in San Diego (18 days later) and wanted to see how the old place was. I thought I would find it being worked on since it needed some cosmetic work, or maybe with a FOR RENT sign in front. Instead I found it occupied. I thought it was good that he'd found a new tenant so quickly.

I realized that I had another 11 days on my lease that I'd paid for, plus the first week of May. I was wondering why he didn't call or email to let me know about the new tenant. He'd said he would return the remainder of my rent if he re-rented it. I was concerned that he wasn't going to notify me at all and that wasn't right. He was collecting double rent at that point.

I emailed him and gave an accounting of the remaining rent he owed me (just from the day I'd discovered it rented). He stated that he hadn't called or emailed because he'd been out of town and the place had been vacant when he'd left. He also said he had expenses that he incurred in prep and advertising and would send a check minus those costs. I thought this was a bit nit-picky on his part so I asked him when the new lease agreement had been signed and he ignored the question. An honest man would've offered the truth. And I would've said OK to his expenses (with documentation) I found out later, from my old neighbors, that the new tenants had moved in four days before I had discovered the unit occupied.

I told him I wasn't going to cover his normal business expenses from my rent. That should have been addressed through the security deposit. He came back offering an amount minus carpet cleaning ($160). I told him I would have to think about it because but the carpet was nine years and two tenants old and pretty tired when we moved in. I asked him to provide copies of invoices for cleaning expenses, the invoice for when the carpet was installed advertising and a copy of the new lease agreement. He shot back an angry email say his "good faith and good nature were over" and that I, in the strictest sense of the contract, owed him money and that now he would keep all the rent as payment for that. He told me to relax and enjoy all my "extra" money (I think he meant the previous security deposit) assured me that he won't seek "restitution" for the rest of the deposit. I guess I should feel lucky.

Does this make sense?

I appreciate all the input I'm receiving here. Some questions that I hadn't considered have helped me to clarify my own position in this matter. I'll keep you all posted. I've arrived at a bottom line. I'll call an attorney and see if I have a case suited for small claims court and alos if my landlord has a case against me. Thanks to everyone so far.

Your more detailed explanation doesn't add any material facts to what we already understood. Essentially you told the landlord you aren't renewing the lease. The fact that you vacated early was your decision.

So someone agreed to take the property before he thought would happen. So he felt he could get away with double dipping. That's probably why he is angry because he know he did something not entirely ethical.

But how much money are we talking about here?

The security deposit was $1850, rent was $1895.

After I gave notice, he told us we would owe $1895 for April and calculated that the first week of May would be $427.

After the walkthrough, he wrote a check to me for $1425 (1850-425 for May).

When I caught him double-dipping on the 20th, I asked him for $1119.84 (April 20-30 inclusive 11 days x $63.167/day + 425 (May))

After going back and forth about expenses (advertising, interim utilities, his mileage and records,etc.), he offered $958.89 (1119.84 -160.95 for carpet cleaning). I told him I'd think about it, but that I wanted copies of the actual invoices for his expenses and a copy of the new lease agreement.

That's when he wrote back saying he would now exercise his option to withhold all the security deposit and that the prepaid rent would be used for that purpose. He broke off communication at that email.

Is that helpful?

OK, guess who came to Easter brunch with her new friend the attorney who represents landlords in matters like this? My sis.
Serendipitous, no?

I ran the pertinent details by her and she looked at the lease agreement. Her jaw dropped and she said that if this LL was her client, she would advise him to start making nice before he's out a lot more than what I asked for. No charge.

I quickly jumped up to get MY new best friend another Mimosa.

Cheers to all and thank you!