[fingersonpoint]

Hi,

I have a problem that I could really use some help on. It is long so skip this posting if you only answer the short postings.

I own a two family house in Massachusetts, which I live in one of the apartments. I received a document from the court that states an August 2006 date to appear before a judge. It states that the suit is for the amount of the deposit that I did not return. My former tenant hired a lawyer to file this suit.

I kept the deposit for what I believe is a broken lease agreement. Here are the details: The tenant signed a 6 month lease starting in February 2005 with tenancy at-will following that period. The lease states that if the tenant breaks the lease by moving out prior to completing the 6 month term, then I am able to retain the deposit. Six months went by, no problems. All was good. At the time (July/August), he was looking for a house to buy. I asked <via email> that he make a decision to either resign for a full 12 months or move out. He asked for two additional months in without resigning a new lease. I said OK, no problem. I stated to him that the reason why I wanted a 12 month lease was because it was difficult to rent an apartment in the winter months (no one likes moving in the winter in New England). October rolled around, which was two months later, and asked what his intentions were and that I wanted a new lease or that he should move out. We negotiated a new lease to run from October 2006 to April 2006. Another 6 months. Not ideal to my liking but it worked well enough. All of this communication took place over email. After a couple of times back and forth we settled on terms. I said I would print up an updated lease for him to sign. I never printed up a hard copy for him to sign. The next month (November), he notifies me that he is moving out in December. He moves out in December. I send him a certified letter (on the 17th day after he moved out) that I intended to keep the deposit for breaking the lease terms. He sends me an email stating that he will sue me for three-times the depoist because I never put the money into escrow (this is true). I respond that we had an agreement that he broke and can expect not to receive it. That if he should take me to court then so be it. I received his letter in May 2006 for an August court appearance.

What should I do? Do I have a chance to win this? Should I hire a lawyer? Will the lawyer cost a lot? I feel that I screwed up by not getting a signed lease. But I also think that through the email negotiation (which I have all of them) that he agreed to a binding agreement. I trusted the guy and the reason I did not hustle to get a hard copy version. So much for a gentlemen's agreement.

Some other details that may matter:
- I can't find the original, signed lease from February 2005 but I do have an electronic copy of it (unsigned). Also all took place over email.
- I never kept the deposit in escrow.
- The only difference between the first lease terms and the second was a $50 decrease in the monthly rent but that he would pay for oil heat (I included oil heat in the first term)...
... which brings up another complication. He had left over oil in the tank. I stated to him that I would buy the oil back from him based on what was left over. I estimated that amounted to be approximately $225 worth of oil... he was supposed to move out on the 15th of December but needed a few extra days. I went into the apartment on the 15th to see where he was in terms of packing, etc. When I entered the apartment, there were 6 electric, oil filled space heaters running!! I then compared the electric bills from previous bills and this years. The increased electrical usage was more than $300 for October - December! In the certified letter, I stated that I was not returning money for the oil either.
- I advertise the apartment weekly on Craigslist, the Boston Globe, and through other means. I finally rent the apartment in April. That is, it took me over 3 months to rent the apartment. I also rented the apartment for $200 less per month just to get it rented. I estimate that I lost approx. $5000 on rent for the 3 vacant months.

If you got this far, my hats off to you. If you have an opinion I would love to read it. I was pissed off at first but now I just want to limit the bleeding. What should I do? Thanks.

fingersonpoint

[CaptainForest]

How much money are we talking about first of all?

Here’s my take on it.

The main issue is did he break the lease.

Did he have a new 6 month lease with you or was he still on a month to month?

The Judge can rule either way.

This sounds like a small claims court case, if you hire a lawyer, you will spend just as much in lawyer fees as what he is suing you for (probably), and that is no guarantee you will win.


Your long explanation failed to go into detail about the specifics of what your emails said.

Did he say, send me over the papers, I will sign them and we will then have a deal. Or, did he say, we have a deal, as of today.

If a Judge reads those emails, will he believe that you 2 had a contract before it was signed?

Considering his first one was signed, perhaps he will say he was waiting for you to send over the new lease agreement (as you said in your emails you would).


Oil Problem:

You assessed it at $225 left on Dec. 15?

But if he didn’t move out until Dec. 18, then you should have assessed how much oil was left on that date.

Your electricity bill was through the roof the last month? In the lease, who is responsible for paying the electricity bill?

I take it you are. In that case, tough luck. Perhaps you should look into some kind of clause in future leases in which the tenant is responsible for electricity costs.

EDIT to my answer above:

Upon thinking about your problem a bit more, I have something to add.

Did you have a new contract?

I would say YES, if he was now paying $50 less a month in rent.

In which case, he did in fact break the lease and owes you rent from Dec 18 – April 2006 (the time it took you to rent the apt to someone else, to the max of the lease contract)

[RickJ]

Indeed this is a "thick" one, but the bottom line is that you've got to show up in court.
Organize and print off all those emails - and get them in easy-to-understand order... and even highlight key points.
Since he has an attorney I would suggest you get one too.

Edit: After reading Captain's response closer, I'll add

If he has an attorney and you don't, I'd think your chances of winning will be greatly reduced...

So what's the maximum you might have to pay if you lose? If it's only a fraction of what an attorney would charge to represent you, then I'd probably consider going without an attorney.

[excon]

Hello fingers:

A couple things to consider. Does Mass law require you to put the deposit in escrow? From your question and your tenants response, I would say it does. If you didn't, then you'll lose. Doesn't matter about the dates on the lease, or whether he renewed or not.

Plus, if he didn't sign a new lease, then there is no new lease, the emails notwithstanding. In real estate matters, the only thing that binds parties is what's written.

Here's a third thing to consider. I don't believe you can keep a deposit because someone broke a lease, even though you have it written in that way. You can keep a deposit against unpaid rent while they lived there, but not as a penalty for breaking the lease.

So, go to court. What's the worst thing that could happen? He'll get his money back. Chances are the judge will NOT assess treble damages. Furthermore, read your states landlord tenant law. Become intimately familiar with it. You can't play the game if you don't know the rules.

excon

PS> I wouldn't hire a lawyer. If you become familiar with the law, you can speak it to the judge.

[Dr D]

My old (1969 UCC Edition) Business Law textbook states that according to the Statute of Frauds (governing which contracts MUST be in writing); "Every contract for the leasing for a longer period than 1 year, or the sale of any land...shall be void, unless the contract...be in writing, and signed...". By paying the lower rent for Oct. & Nov. the tenant indicated his acceptance of the terms of the new lease. Also, the e-mails should indicate his acceptance of the new lease. Check the Mass. Version of that statute and its Landlord Tenant Act to see if they have different provisions. The LT Act should also clarify the issue of having the security deposit in an escrow account. In AZ, at least, a person renting out his own property does not need to put deposits in an escrow account. Good luck in court. Truth and justice don't always prevail, because many small claims courts are run by a local Justice of the Peace, who may not be required to have any legal credentials.

[phillysteakandcheese]

... if he was now paying $50 less a month in rent. In which case, he did in fact break the lease and owes you rent...

If the tenant paid the "new" lower rent from the e-mail negotiated contract, a judge might consider that a defacto "agreement" and might award you the time remaining on the lease.

But as others have said, the signed agreement is what matters most.

This is one of those cases that would probably by dependent on the judge. You might get it, you might not.

Is it really worth it for the "might" happens?

[excon]

Hello again:

I think philly is right on. So is Dr. D. Judges in small claims matters are often times, real dufus's. It's interesting that he mentions Arizona. That's where I cut my teeth on landlord/tenant law.

My toilet tank broke over a weekend soaking my floors. I couldn't find the landlord, so I called a plumber who replaced it. The plumber made me pay half in front and was going to bill the landlord for the other half. The landlord refused to pay me back for my half of HIS toilet. Yes, he paid the plumber. I withheld rent. He sued me for eviction.

I wound up before a Justice of the Peace (pro tem), in Scottsdale, Arizona. Yes, in Arizona, a justice of the peace doesn't even have to be a lawyer. And, this judge was “pro tem” (just filling in). This jerkwater didn't listen to me, and immediately found for the landlord and evicted me. The landlord had one of those fancy eviction attorneys, too. I appealed.

In Superior Court, where they have REAL judges, I kicked this fancy lawyer's butt real bad. It was an immensely enjoyable victory!

excon

[fingersonpoint]

This is all good feedback. To answer the above questions:

He is suing for $1700, which was the amount of the original deposit (the one I did not put in escrow. I don't know the law, yet, but at least the ex-tenant believes there is a law that requires an escrow). In October 2005, the monthly rent was reduced from $1700 to $1650 and he would pay for the oil heat (oil heat was included in the original agreement). The details of the emails:

In the email exchanges during late September through mid October 2005, I said that I would not include heat going forward. (In January 2005, I originally advertised the apartment for $1750 with no heat included. He offered $1700 with heat included. I accepted. I also specifically stated at that time that when the new lease came around (end of August 2005), if he chose to stay, that I would not include heat. Again all of this is in email) He then countered, October 2005, that he would be willing to pay $1650 and he pays for oil heat. I accepted his counter offer. All of this is in email ,which I have. At no point was the agreed term more than 6 months.

There are differing opinions on getting a lawyer or not. Do lawyers give cost estimates to take a case on? While I would like to beat this guy on principle, I am practical minded when it comes to finances. I guess I would be willing to pay $500 -$600 for attorney fees. But if more than that amount I would take the chance of representing myself. A second question, based on CaptainForest's suggestion that he may owe me for the lost rent, can I counter sue him for lost rent? In all fairness, I am not out to get my lost rent back. I feel the deposit is fair enough since that was stated in the original lease. But if a counter suit would 'scare' him off maybe that is a card to play?? Thanks again everyone for weighing in on this posting. -Fingersonpoint

[ScottGem]

Many lawyers will give you a free consultation and an estimate of the cost. Is this being played out in small claims court? Can you prove the loss of rent (vacancy rates, etc.)?

[fingersonpoint]

Yes, it is small claims court. Can you suggest what proves loss of rent? When you say vacancy rates, do you mean the local vacancy rates for the town? Because I'm unsure how I would prove other than my word. I can show that I was advertising with electronic receipts from Craig's List and Boston Globe...

[ScottGem]

Yes I meant local vacancy rates. If housing in the area is much in demand, then its unlikely your house would have gone unrented.

[Dr D]

In some jurisdictions (I think) lawyers are not allowed, so as to assure a level playing field. Apparently in yours, they are. Any evidence that you made a "good faith effort" to find a new tenant should show your sincerety in mitigating any loss. The threat of a countersuit for this loss might be enough to make this low life go away. If you decide to go into battle alone, be sure to do your homework, such as checking out all applicable statutes, and preparing your arguments in a coherent manner. Good luck.

[CaptainForest]

Lawyers have every right to help the client prepare a motion to sue.

So the lawyer probably helped the tenant file the compliant and write it.

But in court, the lawyer himself might not be there.

[t.f.middleton]

Yes it is all up to the judge, but your position is reasonable. In a nut shell:
1. I would not get a lawyer, but having one could (depending on weather he is worth his salt, increase your chance of winning). On the other hand, if he is an incompetent lawyer, he could increase your chances of losing. I would go it alone.
2. I would counter sue for the lost rent. Definitely.
3. Whatever you do, keep your argument short and simple in court, the judge will hear a lot of cases and doesn't have any emotional attachment to your case. He will base his decision on who presents the simplest argument. Think about it clearly before you go to court, be honest, but only present your side -- this is about winning and losing, It is wrong, in a court of law, to defend the opponets position. Just present your position. The judge will hear both sides.
4. My bet is the judge will rule you owe him the deposit and he owes you one month's rent. Period. You can each pay your own attorney's fees and go home. The END.

[fingersonpoint]

Hi T.F. Middleton,

Can I counter-sue to be heard as part of the same court appearance? (Would the same judge be able to see both my ex-tenant's suit and my counter-suit at the same hearing?) Or would a counter-suit most likely require that I invest another day (in addition to the original suit) to appear in front of another judge?

Thanks,

fingersonpoint

[t.f.middleton]

In order to counter sue you will have to go to the court prior to the court date and take out a warrant in debt for the amount of loss rent. Make it for whatever you will argue for, one month, two months, etc. Even if you sue for four months rent, I would be very surprised if the judge grants you anything more than one month, which essentially is calling it even, But yes you have to file a pitition to sue before going to court. It will cost you $30 to $50 and you will need the name & address for the delivering the warrant to the ex-tenant. Be sure to include the court cost in your suit and attorney's fee if you hire one.

When you file the warrant in debt tell the clerk you have a court date and you would like this to be heard as a counter suit at the same time. He/she should have no problem adding you to the docket. That's all there is to it. Remember, when you pay the $30 to $50 that's when the court date is being set, so ask then. The sooner you do this the better, because the court will have to allow (maybe 2 weeks) to have the warrant delivered. Of course, if you don't have 2 weeks you can always ask for a postponement for any reasonable reason. (Hint: If you really want to tick him off, just call the court house on the morning of the hearing and tell them you are sick. This will make him have to come sit in court, with his attorney for a couple of hours, only to find out the hearing has been postpone, but don't do this more than once or twice).

The bottom line is the court will want both cases heard at the same time by the same judge, just let them know what you are doing. Be very polite to the judge, only respond when it is your turn and don't make any railing acusations, you will do fine. The judge will hear both sides and make a decision within 15 minutes, (probably 10). Most of the times, I see cases in court, one party irritates the judge and its all over. Remember, it is his court room. Just keep it short and to the point. Only provide what is clear and supports your position. I think he is waisting his time.